Mwangi & another v Truth, Justice and Reconciliation Commission & 4 others (Petition 286 of 2013) [2013] KEHC 6227 (KLR) (Constitutional and Human Rights) (16 July 2013) (Ruling)
Njenga Mwangi & another v Truth, Justice and
Reconciliation Commission & 4 others [2013] eKLR
Neutral citation:
[2013] KEHC 6227 (KLR)
Republic of Kenya
Petition 286 of 2013
I Lenaola, J
July 16, 2013
Between
Njenga Mwangi
1st Petitioner
James Mwangi Meru
2nd Petitioner
and
The Truth, Justice And Reconciliation Commission
1st Respondent
The Hon Attorney General
2nd Respondent
The Speaker Of The National Assembly
3rd Respondent
The Clerk Of The National Assembly
4th Respondent
The Leader Of The Majority Party
5th Respondent
Ruling
1.The 3rd, 4th and 5th Respondents have filed the PreliminaryObjection dated 10th June 2013, raising the following issues;“a)That the High Court has no jurisdiction to hear the Application filed against the Speaker ofthe National Assembly, the Clerk of theNational Assembly and the leader of theMajority Party in respect of acts of their respective offices in exercise of the powers conferredand vested in them by the Constitution ofKenya, the National Assembly Powers andPrivileges Act and the Standing Orders.b)That the responsibilities of the 3rd, 4th and 5thRespondents with respect to the Truth andReconciliation Report arise only inaccordance with Section 48-50 of the Truth Justice and Reconciliation Act therefore there is nocause of action known in law against the 3rd,4th and 5th Respondents and they shouldbe struck out of the proceedings.c)That the Application is premature because thePetitioners have not exhausted allavailable avenues to ventilate their concernsregarding the Truth Justice and Reconciliation Report and due to the fact that the role ofparliament is merely to table the reportand oversee implementation thereofin terms of Section 46 of the Truth Justice and Reconciliation Act. Under the said Act,implementation of the report is in theprovince of the relevant Minister which role is both separate and independent from tabling of thereport as per Section 49 (1) of the saidAct.d)That the allegations contained in the Application and Supporting Affidavits are vague and donot meet the threshold for grant ofinterim conservatory orders as was laid down in the case of Kenya Oil Co. Limited and Anorvs Petroleum Refineries Limited (2010)HCCC NO.782/2009.d)That the Application is improperly before the Courtand therefore lacks merit and is an abuse ofthe Court process since it is calculatedto pre-empt or prevent Parliament from carrying out its constitutional mandate.”
2.To put the matters into perspective, the Petitionerscommenced these proceedings suit by a Petition dated 6thJune, 2013 wherein they have sought inter-alia variousdeclarations claiming that their constitutional rights havebeen violated and they have also sought orders restrainingthe 3rd, 4th and 5th Respondents from tabling or admittinginto the National Assembly, the Report of the 1stRespondent, the Truth Justice and Reconciliation Commission(TJRC) until all the recommendations contained in the 1stRespondent's draft are expunged; and also for an order toprohibit the 2nd Respondent from operationalising theimplementation mechanisms recommended by the 1stRespondent and for an order prohibiting the 2nd, 3rd, 4thand 5th Respondents from reporting to the National Assembly as to the implementation of the Report.3. Simultaneously with the Petition, the Petitioners' filed aChamber Summons Application dated 6th June 2013, seekinginter-alia conservatory orders prohibiting the 3rd, 4th and5th Respondents from tabling the report of the 1stRespondent into parliament and from operationalizing theimplementation mechanisms recommended by the 1stRespondent in its report.
4.On 10th June 2013, when the Application came before me forhearing inter-partes, I declined to grant any interim ordersas prayed; and ordered that the Preliminary Objection beargued first as it raised the issue of the jurisdiction of thisCourt to proceed as against the 3rd – 5th Respondents forreasons set out above. Jurisdiction is everything and withoutit a Court has no powers to make any further step - SeeMotor Vessel Lolians' vs. Caltex Oil (Kenya) Ltd (1989)KLR 1.
The 3rd, 4th and 5th Respondents Submissions
5.Ms. Lumallas presented arguments in support of the case forthe 3rd, 4th and 5th Respondents. It was her position that this Court lacks jurisdiction to hear and determine thismatter as filed against the Speaker of the NationalAssembly, the Clerk of the National Assembly and the Leaderof the Majority Party (the 3rd – 5th Respondentsrespectively) and claimed that under Article 117 of theConstitution Members of Parliament are entitled to speakfreely on their own mandate and they have also the right toall relevant freedoms while in Parliament. Further, thatSection 29 of the the National Assembly Powers andPrivileges Act. (Cap. 6) denies jurisdiction to any Court toact against decisions of the Speakers and she relied on thecase of Dr. Nyoya & 6 Others vs the Attorney General& 3 Others eKLR (2004) where Ringera J. stated thatCourts' do not act in vain nor are they an academic forum.She also relied on Republic vs Judicial Commission ofInquiry into the Goldenberg Affair No.102/2006 whereit was held that any finding against the mandate ofparliament is itself unconstitutional. Reliance was alsoplaced on Kiraitu Murungi & 6 Others vs Hon. MusaliaMudavadi & Anor HCC. No.1542 of 1997 where it washeld that Members of Parliament have absolute immunity forwhat they do in Parliament. In addition, she emphasisedthat in Raila Odinga vs Franics Kaparo & Clerk of theNational Assembly HCC. No.394 of 1993 where it wasstated that what happens in Parliament is not examinableelsewhere.
6.Ms. Lumallas thus contended that this Court cannot usurpthe mandate of Parliament and in this case, Parliament onlyreceives the report of the 1st Respondent and theimplementation of that report is a matter reserved for theexecutive. She added that the Standing Orders ofParliament at Article 2 have defined what laying or tablingof a document means and it was her submission that thePetitioners have not challenged the unconstitutionality of theTruth, Justice and Reconciliation Act (TJR Act) and it istherefore unclear what complaints the Petitioners have withthe Report. In any event, she alleged that Parliament did nothave any role in preparation of the report as it was preparedoutside Parliament and thus it cannot be penalised for areport it has not prepared.
7.She urged me to strike out the 3rd, 4th and 5th Respondentsfrom the Petition since the Petitioners have failed to discloseany cause of action as against and she relied on the obitadictum in Kiriro wa Ngugi & 6 Others vs The TruthJustice and Reconciliation Commission & 6 Others, Nrb Misc. Appl. No.192 of 2013 where I said something aboutthe same Respondents.
1st Respondent's Submissions
8.Mr. Gatonye for the 1st Respondent supported thePreliminary Objection, on two grounds. Firstly; he submittedthat the role of Parliament cannot be usurped by the Court,as the role of Parliament under the TJR Act is clear; itanticipates and pre-empts any action by the NationalAssembly that may prejudice the Applicants. He claimed thatthe issue before this Court was not the one of jurisdiction perse but one for good order; that the Court should not proceedto hear the Application and the Petition as against the 3rd to5th Respondents and cautioned that the Court must refrainfrom intruding into the realm of the National Assemblyunless there is a clear violation of the Constitution.
9.As regards the tabling of the report, Mr. Gatonye submittedthat the Petitioners have not demonstrated that the 3rd –5th Respondents had anything to do with the 1stRespondent's report or that h they have used it to theprejudice of the Applicants. He thus claimed that theyshould not be subjected to the hearing if they are notproperly enjoined in the proceedings. He argued that therole of the National Assembly was only to receive the reportand there was nothing more than that as it cannotinvestigate or do anything else.
10.Mr. Kuria for the Attorney General, the 2nd Respondent,herein was in agreement with Mr. Gatonye and supportedthe Preliminary Objection. The Petitioner's Case11. Mr. Kilukumi for the Petitioner claimed that the PreliminaryObjection as raised related only to the 3rd – 5th Respondentand even if upheld, cannot dispose of the proceedings. Heclaimed that the Civil Procedure Provisions do not apply toconstitutional matters and only Legal Notice No.6 of 2006was applicable. He claimed that 'threatened' violation of theConstitution has been alleged but no evidence has beengiven of that fact. He thus submitted that an apprehensionof violations is not sufficient and he argued that there cannotbe a basis for an anticipatory order against what Parliamentmay or may not do.
12.He further submitted that the 3rd – 5th Respondents havebeen cited in the Petition because they are necessary partiessince they superintend the implementation of the report andthat the 3rd – 5th Respondents are the ones that giveefficacy to any orders issued by the Court.
13.On the issue of jurisdiction, Mr. Kilukumi submitted that ithas been admitted that jurisdiction was not an issue but butclaimed that the privilege of Parliament cannot be a shield tojudicial scrutiny. He relied on the case of Peter Ngoge vsFrancis Ole Kapara & 4 Others (2007) & KLR andNjoya & Others vs the Attorney General & 3 Others(supra) to make the print that all Members of Parliamentmust protect the Constitution.
14.He distinguished the Kiriro Ngugi case (supra) by statingthat it was a “Judicial Review” matter and as such theprinciples applicable there are different while the issuebefore this Court is on the constitutionality of the provisionsand recommendations of the report; in so far as they allegea violation a fundamental rights and freedoms. It was thus Mr. Kilukumi's Submission that the 2nd – 5thRespondents are the implementers of the Report and thatthe tabling of the report is not an innocuous act but createsa permanency of a disputed report. He referred the Court tothe Erskine May's Treatise on the Law, Privileges,Proceedings and Usage of Parliament, 21st EvictionLondon, Butter worths (1989) 543-544 to buttress thatpoint.
Determination
15.Having set out the parties Submissions as above, I believethe only issue for determination is whether the 3rd – 5thRespondents are properly enjoined in these proceedingsowing to the issue of Parliamentary privilege. This issue isintertwined with that one of jurisdiction as raised by Ms.Lumallas. I will first address my mind to the issue of theParliamentary Privilege. I agree with Ms. Lumallas, thatArticle 117 of the Constitution grants Members ofParliament the freedom to express themselves freely in theNational Assembly. This Article provides;“(1)There shall be freedom of speech and debate inParliament.(2)Parliament may, for the purpose of the orderly andeffective discharge of the business ofparliament, provide for the powers,privileges and immunities of Parliament, its committees, the leader of the majority party,the leader of the minority party, thechairpersons of committees and members”.
16.I am also in agreement, that under Section 29 of the National Assembly (Powers and Privileges Act) (Cap.6), Courts cannot exercise jurisdiction in respect of acts ofthe Speaker and other officers of the National Assemblybut I am certain that under Article 165(3) (d) of theConstitution, this Court can enquire into any unconstitutional actions on their part. But where is thejurisdiction I am exercising with respect to theSpeaker and other officers of the NationalAssembly?
17.Mr. Kilukumi agrees that the role of the National Assembly with regard to the tabling of the report is clear. Section 48(1)(4) of the TJR Act provides as follows; “The minister shall table the report in Parliament within twenty one days after its publication.”It is clear therefore the enabling Act of the 1st Respondentenvisaged a scenario where after it has compiled its report, itshall hand over the same to the President and thereafter theMinister shall table the report to Parliament.
18.The orders sought in the Petition in so far as the tabling of thereport is concerned are against the 3rd – 5th Respondents. None of them is the Minister responsiblefor tabling the report. In the circumstances, I am inagreement with Mr. Gatonye that the Petitioners have not demonstrated that the 3rd – 5th Respondents have anything todo with the tabling, operatonalizing and final implementation ofthe report. Indeed, I am aware that the role of the 3rd– 5th Respondents was limited to receivingthe report and have no interest in the report per se northe implementation thereof. The TJR Act has providedat Section 49 the procedure on regards the implementation of the report. This Section provides as follows;“(1)The Minister shall, upon the publication of thereport of the Commission, operationalise theimplementation mechanism or arrangement inaccordance with the recommendations of theCommission under Section 48(2) (f) to monitor the implementation of the recommendations of theCommission and to facilitate theirimplementation.(2)The implementation committee shall publish thereports of the Government in the appropriateform and submit its own quarterly reports to the public evaluating the efforts of the Government and the efforts of any other person orbody concerned to implement therecommendations of the Commissions...(3)Implementation of the report of the Commissionshall commence within six months uponpublication.
19.Similarly, Section 50 has provided that the Minister shallreport to the National Assembly the status as to theimplementation of the report. This Section provides;“(1)the Minister shall report to the National Assemblywithin three months of receipt of the report ofthe commission, and twice a year thereafter, asto the implementation of the commission'srecommendations.(2)All recommendations shall be implemented, andwhere the implementation of anyrecommendation has not been compliedwith, the National Assembly shall require the Minister to furnish it with reasons for non-implementation”
20.I have deliberately reproduced Sections 49 and 50 of the TJR Act to demonstrate that the 3rd – 5th Respondents have no role in the tabling,implementation, and reporting on the statuson the report. It can now be seen that it is the statutoryduty of the Minister to do so and clearly, the 3rd – 5th Respondents are wrongly enjoined and I so find. In thecircumstances, I can do no better than reiterate myearlier sentiments in Kirirowa Ngugi case (supra)where I stated that;“The Applicants have sought that upon grant of leaveaforesaid, the same should operate as a stay to bar the2nd – 7th Respondents from tabling the Report and/orreceiving the Report aforesaid. During the hearing, Iasked Mr. Mungai to explain the basis for that prayer andelsewhere above his answer is recorded. I am howevernot satisfied that the prayer for stay is justified. I say so,with respect, because Section 48(4) of the TJR Actprovides as follows; “The Minister shall table the report in Parliament within twenty one days after its publication.”In doing the above, the Minister (in this case, the 2ndRespondent) is merely performing messengerial services.He neither seeks the adoption of the Report neither doeshe seek any specific action by Parliament. Similarly, allother Respondents have no specific role as regards thecontents of the Report. In fact, in Section 50 of the Act,the role of the National Assembly is limited to receivingperiodic reports of the implementation of the Report andensuring that any non-implementation is also reported toit, with reasons thereof. What harm will the tabling of theReport cause the Applicants and why should Parliament bestopped from performing its Statutory function?In any event, it is completely unclear to me why the otherRespondents, save the 1st Respondent, have beenenjoined in these proceedings when in fact the real issuein contest is the Report of the 1st Respondent in whichthey played no role in crafting.”
21.It therefore follows that the Preliminary Objection must succeed on this point alone.
23.I now turn to consider the issue as raised by Ms. Lumallasthat the Petitioners have not exhausted all otheravenues available to them in having their issuesaddressed. I have looked at the Petition filed herein, and as stated elsewhere above the Petitioners havesought various declarations that their fundamentalrights and freedoms have been violated by the 1stRespondent's mandatory recommendations ascontained in its report dated 3rd May 2013. I do not know of any other avenue that the Petitioners can use in having adetermination as to whether their rights have beenviolated or at all save by proceedings filed in thisCourt.
24.I am alive to the constitutional provisions at Article 22(1) that enables every person the right to institute Courtproceedings claiming that a right or fundamentalfreedom in the Bill of Rights has been violated. Thejurisdiction of this Court to determine the proceedings so instituted is found in Article 23(1) of the Constitution.This Article provides that this Court has the jurisdiction tohear and determine Applications for redress of adenial, violation, or infringement of a right in theBill of Rights. The same Article has provided for reliefs available to a person whose rights have been infringed. The jurisdiction to hear and determine the violationof fundamental rights as contained in the Bill of Rights isfurther provided for under Article 165(1)(b) ofthe Constitution. This Court has often held that it hasjurisdiction to determine whether a fundamental right or freedom has been violated. Indeed, this jurisdiction has not been disputed and so I amclear in my mind that the Petition in so far as it alleges aviolation of the fundamental rights andfreedom is properly before me and I so find.
16.From the foregoing, it follows that the Preliminary Objectionis upheld on one issue of law only and the 3rd, 4th and 5thRespondents are struck out of the present proceedings. Noprejudice would be caused to the Petitioners as if and whencertain parts of the offending report are expunged, theirrelief shall have been made complete.
17.As regards costs, the nature of the matter necessitates thateach party should bear its own costs.
18.Orders accordingly.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 16TH DAY OF JULY, 2013ISAAC LENAOLAJUDGEIn the presence of:Irene – Court clerkMr. Ismail for PetitionerMr. Mohammed for 2nd RespondentsOrderRuling duly delivered. ISAAC LENAOLAJUDGEMr. IsmailI seek leave to appeal. ISAAC LENAOLAJUDGEMr. MohamedNo objection.ISAAC LENAOLAJUDGEOrderLeave to appeal is granted. Copies of the Ruling to be supplied to parties.Mention on 19/7/2013ISAAC LENAOLAJUDGE