Skip to document content Go to main menu Go to search

Madzayo & 22 others v Attorney General & 2 others (Petition E120 of 2023) [2023] KEHC 24980 (KLR) (Constitutional and Human Rights) (9 November 2023) (Judgment)

Madzayo & 22 others v Attorney General & 2 others (Petition E120 of 2023) [2023] KEHC 24980 (KLR) (Constitutional and Human Rights) (9 November 2023) (Judgment)
Citation
Madzayo & 22 others v Attorney General & 2 others [2023] KEHC 24980 (KLR)
Media Neutral Citation
[2023] KEHC 24980 (KLR)
Court
High Court
Court station
High Court at Nairobi (Milimani Law Courts)
Outcome
Dismissed
Case number
Petition E120 of 2023
Judges
LN Mugambi
Judgment date
9 November 2023
Language
English
Type
Judgment
Original source file
Download DOCX (79.9 KB)
Collections
Date published
09 January 2024
Case action
Judgment
Court division
Constitutional and Human Rights
Filing county
Nairobi
Skip to document content
Introduction
1.The petitioners, Senators in the Parliament and members of the Minority Coalition, filed a petition dated April 11, 2023 seeking the following reliefs against the respondents:a.A conservatory order be issued, staying the implementation of standing orders 44, 51, 51A, 51B, 51C, 51D, 56 and 248 as amended and adopted by the Senate on March 23, 2023.b.A declaration that standing orders 44, 51, 51A, 51B, 51C, 51D, 56 and 248 as amended and adopted by the Senate on March 23, 2023 are in contravention of article 153(3) of the Constitution thus unconstitutional, null and void.c.An order of certiorari be issued, bringing into this court the decision of the Senate made on March 23, 2023 adopting the Report of the Procedure and Rules Committee together with the amendments to standing orders 44, 51, 51A, 51B, 51C, 51D, 56 and 248 and quashing it.d.An order that the respondents bear the costs of this suit.
Petitioners’ Case
2.The petition is supported by the 2nd petitioner’s supporting affidavit of 11/4/2023 as well as the supplementary supporting affidavit sworn on 24/5/2023. The rest of the petitioners the 2nd petitioner to swear the affidavits on their behalf.
3.The gist of this petition are the amendments to the impugned standing orders44, 51, 51A, 51B, 51C, 51D, 56 and 248 which the petitioneralleges are in contravention of article 153 (3) of the Constitution and section 13 of the Statutory Instruments Act No.13 of 2013.This section obligates Parliament to enact statutory instruments guided by the principles of good governance and the rule of law.
4.The genesis of the said amendments was a memorandum by President of Kenya dated on December 9, 2023to the Speakers of Parliament to formulate a mechanism within their standing ordersto allow Cabinet Secretaries and Chief Administrative Secretaries appear in Parliament for purposes of explaining Government Policy and answer questions on the floor of the House.
5.The Senate Majority Leader in a letter dated March 9, 2023informed the Speaker of the Senate that the Majority party had agreed to propose various legislative interventions including ‘Parliamentary oversight over Executive’.
6.On March 15, 2023, the 2nd respondent issued a Notice for a meeting of the Procedure and Rules Committee which sat on the following day, the 16/3/2023 and discussed the recommended amendments to the standing orders. Its Report was tabled before the Senate on 21st march 2023; deliberated upon and passed by the majority side on 23/3/2023 despite strong opposition mounted by the petitioners.
7.On 28/3/2023; the Speaker of the Senate communicated that amendments were to take effect on April 11, 2023.
8.The petitioners detailed the nature and the consequence of amendment and deposed that it was an affront to article 153(3) of the Constitution which already has a mechanism through which Cabinet Secretaries are held accountable on behalf of the Executive. This provision requires attendance of Cabinet Secretaries to Parliamentary Committees to answer to any matter to which they are responsible.
9.He thus deposes that the impugned amendments are amount to amending article 153(3) of the Constitution through the backdoor as the permit the Cabinet Secretaries to appear before the Senate without the same being constituted as a Committee of the House for that purpose.
10.In view of the foregoing, the petitioners pray that this courtdeclares the impugned amendments to the Senate standing orders unconstitutional.
2nd Respondent’s Case
11.Opposing the petition, the 2nd respondent filed its grounds of opposition dated April 24, 2023i.Article 124 of the Constitution mandates each House of Parliament to establish committees and make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.ii.Article 124 of the Constitution must be read together with article 125 of the Constitution which provides for the power to call for evidence.iii.Standing order269 of the Senate standingordersrequires that at least once in every term of Parliament, not later than three months to the end of the term, the Procedure and Rules Committee should review the standing ordersand make a report to the Senate recommending the standing orders, if any, to be amended.iv.In line with provisions of article 124 of the Constitution, the Senate amended the procedures of the House to facilitate the decision of the House, pursuant to its power under article 125 of the Constitution for Cabinet Secretaries to appear and give evidence and provide information to Senators on matters within the mandate of the Senate and of concern to the Senators' constituents.v.The Procedure and Rules Committee made recommendations for the amendments to the standing orders of the Senate to allow Cabinet Secretaries to appear before the Senate and the Report was adopted by the House on March 23, 2023.vi.The petitioners have not met the conditions precedent that must be satisfied in order for a court to issue conservatory orders.vii.The petitioners have not demonstrated to this court how the Constitution has been violated as the amendments to the standing orders seek to have the Senate perform its role of oversight and representation as conferred upon it by the Constitution.viii.Where the Constitution confers a power or duty on a certain body or person, the exercise of such power is presumed constitutional unless demonstrated otherwise upon a full hearing on the merits of the matter and therefore the application is premature.ix.The petitioners have not disclosed a violation or threat that the Constitution will be violated to warrant exercise of the High Court's power to grant conservatory orders against a House of Parliament and restrain the House from performing its constitutional mandate.x.Article 125 of the Constitution confers the power to summon a person to give evidence or provide information to the House and any of its committees and therefore, the petitioners’ contention that a Cabinet Secretary may constitutionally appear before a committee which is an agent of the Senate but not the House as the principal, is a legal absurdity that violates the Constitution.xi.The petitioners have not demonstrated the prejudice that they stand to suffer upon the implementation of the amendments to the standing ordersand so the petition will not be rendered nugatory if this Court declines to grant conservatory orders in the interim.xii.The conservatory orders sought would have the effect that Cabinet Secretaries do not appear before the Senate to give evidence and information to the Senate in the exercise of its representation and oversight mandates which is against the public interest.xiii.This court ought to uphold the presumption of constitutionality of standing orders made by a House of Parliament pursuant to the Constitution.xiv.The application and the petition do not disclose any violation of the Constitution to warrant the intervention of this court and there is no justiciable cause of action.xv.The application and the petition are an affront to the oversight and representation role of the Senate under article96 of the Constitution.xvi.The orders sought in the application and the petition violate the right of the Senate House of Parliament to regulate its own internal procedures and the conduct of business in the House.xvii.The Senate conducts its business in accordance with the Constitution, its standing orders and its customs and traditions of procedure and the Senate, can by resolution of a majority of members amend its standing orders.xviii.The orders sought in the application and the petition herein violate the principle of separation of powers that requires each of the three arms of Government to carry out their roles independently and without interference from the other arms of Government.xix.The jurisdiction of this court against the Senate House of Parliament can only be invoked in the event of an excess of jurisdiction by way of breach of the Constitution and in the present proceedings, there has been no violation of the Constitution.xx.The petitioners have not demonstrated to this court that the grounds, upon which judicial intervention can be sought, have been met and therefore this court ought to decline to grant the orders sought by the petitioners.xxi.The petition herein seeks undue judicial interference in legislative business without having established any grounds to warrant such intervention and therefore if the orders sought are granted, the result would undermine and violate the Constitution.
12.These grounds were as well underscored and reiterated in the 2nd respondent’s replying affidavit dated May 16, 2023 in response to the petition.
3rd Respondent’s Case
13.The 3rd respondent’s Deputy Clerk, Jeremiah Ndombi filed a replying affidavit dated May 10, 2023.
14.He began by challenging this court’s jurisdiction to entertain the instant petition on ground that the petitioners did not exhaust the available dispute resolution mechanisms under Senate standing orders 267 to 272.
15.He deposed that standing order 268(1) provides that a Senator may with the support of 15 other senators request the Committee to consider an amendment to the Standing Order. Equally, the petitioners had the opportunity to table their grievances on the impugned standing orders before the Committee. Likewise, that the petitioners would have made an appeal over the matter to the Speaker of the Senate. He points out moreover that some of the petitioners are Members of the Houses Business Committee that decides the agenda for the House and raised objections therein about the issues raised in present suit. He deposed that according to the Hansard, the petitioners participated in the voting process on the material day after the Procedure and Rules Committee’s Report had been deliberated upon in the Senate.
16.He thus stated that the petition was filed prematurely owing to the petitioner’s failure to exhaust the available remedies within the Senate.
17.Further that the petitioners have not demonstrated how Parliament exceeded its mandate in breach of the Constitution hence this court should not to interfere with the conduct of Parliamentary proceedings it is a violation of the doctrine of separation of powers.
18.The accountability of the government through Parliament is a fundamental feature of the Constitution and one of the tools is by interrogating Cabinet Secretaries performance of their functions. This is enabled by article 125 of the Constitution as read with article 124 hence petitioners’ assertion that this interrogation can only be before a Committee is misconceived.
Petitioners’ Submissions
19.The firm of Henia Anzala and Associate Advocates on behalf of the petitioners filed written submissions and a list of authorities dated May 24, 2023. Counsel also attended court on 11/7/2023 and orally highlighted the submissions.
20.On whether the petitioners have locus standi to institute this suit, counselrelied on article 258 of the Constitution and argued that article 258 does not limit which person can approach the court for relief concerning violation of the Constitution as the Constitution allows “every person” to institute proceedings if the Constitution is contravened or threatened with contravention. Counsel further relied on the case of Sollo Nzuki v Salaries and Remuneration Commission & 2 others [2019]eKLR where it was held that the Constitution had opened the doors of the courts very wide to welcome any person who has bona fide grounds that the Constitution has been or is threatened with contravention to approach the court for an appropriate relief.
21.On the issue of jurisdiction, counsel submitted that this court has the requisite jurisdiction.
22.Refuting the applicability of the doctrine of exhaustion, counsel submitted that this doctrine can only be invoked where there is in existence a dispute resolution mechanism.
23.Counsel pointed out that standing order 268(1) which was relied upon by the 2nd respondent does not provide a dispute resolution remedy but is a procedure for the amendment of standing orders. Likewise, Counsel submitted that the standing orders are silent on the alleged appeal process before the Speaker where an amendment has adopted. Reliance was placed in the case of Catherine Mwihaki Ngambi v International Leadership University [2022) eKLR where the alleged dispute resolution mechanism was found to be lacking and non - existent to resolve the dispute between the parties.
24.He stressed that only the High Court is vested with the mandate to determine questions on contravention of the Constitution as was held by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR.
25.Concerning position taken by the respondents that intervention by this Court in the matter would be an infringement of the doctrine of separation of powers, counsel submitted that the submission is misguided asserting that the High Court has exclusive jurisdiction to determine whether or not any action contravenes the Constitution. In this regard, he relied on County Government of Kiambu & another v Senate & others (2017) eKLR where it was held that:“that only the courts can resolve disputes relating to uncertainties in the laws. Such un­certainties, mainly relate to the mode of legislative drafting, and the shape and detail of the statutes as they appear in the books.”
26.Comparable reliance was placed on the case of Frank Mulisa Makola vs Felix G. Mbiuki & 4 Others (2013) eKLR.
27.Concerning article 153(3) of the Constitution, Counsel reiterated that it provides for the Cabinet Secretaries to appear before Committees of the Senate and the word used is ‘Shall’ hence the impugned amendments contravene that Article. He relied on the case of Commission for the Implementation of the Constitution v Speaker of the National Assembly [2016] eKLR in where the Court opined:“…Clearly, when the National Assembly makes its Standing Orders as mandated under article 124(j), they ought to be constitutionally compliant. Like-wise when the National Assembly undertakes a process, like that of removal of a cabinet secretary, it ought to be constitutionally compliant. The National Assembly ought to ensure that the process does not conflict with the Constitution either. The process applied or any law promulgated to drive the process or function must not be inconsistent with the Constitution. When that is alleged then the court must be ready to invoke its jurisdiction under article 165(3)(d)(i) & (ii) and make a determination…”
28.Counsel argued that in interpreting statutes, courtsare first and foremost guided by the principle of the plain language of the statute and going by this principle, the meaning of article 153(3) of the Constitution is simple and clear. He cited the case of Council of County Governors v Attorney General & another (2017) eKLR where it was affirmed that the most important rule is the rule statutory interpretation is the statute’s plain language.
29.Counsel submitted that another important principle in statutory interpretation is interpreting the statute in a manner that ensures certainty in law. He thus submitted that the provisions of article 153(3) of the Constitution are clear how the Senate is to hold the Executive accountable, which is through its Committees. He argued that reliance on article 125 of the Constitution as suggested by the respondents is therefore misleading.
30.Counsel for the petitioner submitted that articles 124, 125 and 153 of the Constitution must be read in a manner that complements and sustains each of them. He relied on the case of Council of County Governors v Attorney General & another(supra) where it was observed that:“…the Constitution should be given a purposive, liberal interpretation and that the provisions of the Constitution must be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other. It is important to bear in mind that the spirit of the Constitution must, preside and permeate the process of judicial interpretation and judicial discretion…”
31.Counsel summed up by reiterating that the amendment effected through the standing ordersto allow Cabinet Secretaries to appear before the Senate renders article 153(3) of the Constitution superfluous and is effectively a repeal of this article in contravention of the Constitution.
2nd Respondent’s Submissions
32.Counsel for the 2nd respondent, Wangechi Thanji filed written submissions dated June 8, 2023 where she submitted on the Parliament’s oversight role, the principle of undue interference with the Parliamentary internal processes and the question whether the sought orders aids the purposive interpretation of the Constitution.
33.On the first issue, counsel submitted that while article 124 of the Constitution allows the Parliament to make its own standing orders through its Committees, article 125 empowers either House of Parliament or its Committees to summon any person to appear before it so as to give evidence or provide information. Counsel thus countered that the argument that the Cabinet Secretary ought to appear before the Committee and not the House is absurd as the Committee is only an agent of the Senate.
34.Counsel submitted that in certain instances such impeachment proceedings, the Senate may convert its plenary into a Committee as in the case of removal of a Governor. This was the case in Mike Sonko Mbuvi Gideon Kioko and another v Clerk, Nairobi City County Assembly and 9 others [2021] eKLR which did not amount to violation of the Constitution.
35.Counsel insisted that article 153 (3) of the Constitution must be read together with article 124 of the Constitution as the modalities, composition and conduct of the Committees is solely within the mandate of the Senate. She relied on the case of Commission for the Implementation of the Constitution (supra) where it was held thus:“…Cabinet Secretaries are accountable individually and collectively, to the President, as the appointing authority. Cabinet secretaries are also accountable to the democratically elected Parliament…It also involves a general duty on cabinet secretaries in a constitutional democracy to explain their actions and policies to Parliament. Such latter medium of accountability, in my view, is relevant and necessary to ensure that Parliament’s oversight role is actually successfully achieved.”
36.Turning to the second issue, counsel submitted that the petitioners had failed to demonstrate how the Constitution had been violated to justify the intervention by the court in the matter as it was meant to enhance the oversight role of the Senate. In support of the submission counsel relied on the Law Society of Kenya v Attorney General and 2 others [2013] eKLR that upheld the general presumption of law that Statutes are constitutional and anyone who alleges otherwise must prove. That where the Constitution confers a power on a certain body, the exercise of the power is presumed constitutional unless demonstrated otherwise. It was argued that this is what the petitioners have failed to prove in the instant case.
37.Counsel submitted thus that the petition was an affront to the oversight and representation role of the Senate under article 96 of the Constitution and the doctrine of separation of power which bars interreference with the Parliament’s internal arrangements and procedures. In support reliance was placed in the case of Justus Kariuki Mate and another v Martin Nyaga Wambora and another [2017] eKLR where it was held that:“…The integrity of court orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State.”
38.Equally, counsel noted that the Parliament has a right under article 117 and 124 of the Constitution to regulate its internal affairs. A fact that was upheld by the Supreme Court in the case of Speaker of the Senate vs the Attorney General [2013] eKLR where it held as follows:“This court will not question each and every procedural infraction that may occur in either of the House of Parliament. The courtcannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another.”
39.Additionally, counsel cited the following other cases which he submitted that the principle was reaffirmed. The cases of: Prebble v Television New Zealand Limited [1995] 1 AC 32, Commission for the Implementation of the Constitution(supra), Okiya Omtata Okoiti v the Attorney General and 5 others [2014]eKLR, Patrick Ouma Onyango and 12 others v Attorney General and 2 others [2005]eKLR, Blackburn vs Attorney General [1971] 1 WLR 1037 and Kenya Youth Parliament and 2 others v Attorney General and another [2012] eKLR.
40.On principles of constitutional interpretation; counsel urged this court to be guided by the Court of Appeal case of Center for Rights Education and Awareness and another v John Harun Mwau and 6 others [2012] eKLR where it was held thus:“The spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion. It must be interpreted broadly, liberally and purposively so as to avoid the austerity of tabulated legalism.The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).”
3rd Respondent’s Submissions
41.The 3rd respondent did not file written submissions. They were neither in the physical file nor in the CTS.
Issues for Determinationi.Whether this courtshould uphold the doctrine of exhaustion by declining its exercise of jurisdiction in the first instance.ii.Does the doctrine of separation of powers preclude this courtfrom entertaining this dispute?iii.Whether the Senate standing orders44, 51, 51A, 51B, 51C, 51D, 56 and 248 as amended are in contravention of article 153(3) of the Constitution.
42.On the first issue, the jurisdiction of this courtto entertain the instant petition was challenged by the 2nd and 3rd respondents on two broad aspects. The doctrine of exhaustion and second the doctrine of separation of powers. The two principles are in a sense, aspects of jurisdiction in the narrower sense, in that, in the case of exhaustion doctrine, though the court may assume jurisdiction, it defers to other organs that may be statutorily empowered to do so in the first instance before the court’s jurisdiction is invoked. The doctrine of separation of powers on the hand is an important constitutional principle whereby Constitutional organs are required to keep to their lane and exercise restraint by avoiding undue interference with matters within the Constitutional mandate of those other Constitutional organs.
43.The courtin Kamau v Kenya Accreditation Service (Petition E053 of 2021) [2021] KEELRC 8 (KLR) (30 July 2021) (Judgment) explained the doctrine of exhaustion as follows:“55.The doctrine of exhaustion of administrative remedies states that a person challenging an agency decision must first pursue the agency’s available remedies before seeking judicial review. It was created by courts in order to promote an efficient justice system and an autonomous administrative state. The doctrine was articulated by the Court of Appeal in Speaker of the National Assembly v Njenga Karume [1992] KLR 21 thus:“Where there is a clear procedure for redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”56.The doctrine is in line with article 159(2)(c) of the Constitution and has been upheld by the local courts in various persuasive and binding precedents. The Court of Appeal in Mutanga Coffee Company Limited v Shikara Limited & another [2015] eKLR reaffirmed the exhaustion doctrine when it expressed itself as follows:“However, we entertain no doubt in our minds that the reasoning of the court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or Statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.”
44.This is however a general principle and exceptions do exist where the principle may not apply. In William Odhiambo Ramogi and 3 others vs Attorney General and 4 others; Muslims for Human Rights and 2 others (Interested Parties) (2020) eKLR; the Court of Appeal observed:“59.However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R vs Independent Electoral and Boundaries Commission (IEBC) & Others Ex Parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.”
45.The Court of Appeal in the case of Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR guided thus:“23.…. Whereas courts of Law are enjoined to defer to specialized Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.24.Accordingly, the court is perfectly entitled to intervene where it is alleged that the discretion is not being exercised judicially, that is to say, rationally and fairly and not arbitrarily, whimsically, capriciously or in flagrant disregard of the rules of natural justice…”
46.In the present petition, the 2nd respondent asserted the applicability of the doctrine of exhaustion and argued that the petitioners did not exhaust the available dispute resolution mechanisms under Senate standing orders 267 to 272. The 2nd respondent claimed that standing order 268(1) provides that a Senator may with the support of 15 other senators request the Committee to consider an amendment to the standing orders and as such, the petitioners had the opportunity to table their grievances on the impugned standing orders before the Committee. Further, the petitioners would have made an appeal over the matter to the Speaker of the Senate. In any case, the 2nd respondent argued that some of the petitioners are Members of the House Business Committee that decides the agenda for the House and did not raise any objections on the issues now being raised in the present suit. That according to Hansard, the petitioners even participated in the voting process on the material day following deliberations on the Procedure and Rules Committee’s Report in the Senate. The 2nd respondent’s position was thus the petition was filed prematurely as the petitioners did not exhaust the remedies that were available to them within the Senate.
47.The petitionersdenied the existence of the dispute settlement mechanism and submitted that this doctrine may only apply where it exists, but in the instant case, it does not. Counsel pointed out that standing order268(1) which was relied upon by the 2nd respondent does not provide for any dispute resolution mechanism but is just a procedure for the amendment of standing orders. Likewise, Counsel submitted that the standing orders are silent on the alleged appeal process to the Speaker in cases where an amendment has been passed. Reliance was placed in the case of Catherine Mwihaki Ngambi v International Leadership University [2022] eKLR where the alleged dispute resolution mechanism was found to be lacking and non - existent to resolve the dispute between the parties. He stressed that only the High Court is vested with the mandate to determine questions on contravention of the Constitution as was held by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR.
48.On this issue, I certainly agree with the Petitioners position. A standing order that merely provides for the process amending standing orders cannot by any stretch of imagination be a dispute settlement mechanism. A dispute settlement mechanism refers to the process of resolution of disagreements or disputes through some form of mediation, adjudication, or arbitration not a provision that generally provide process amending legislative instruments. No alternative dispute settlement was proven to exist to handle the issues presented in this petition.
49.In any case, it is doubtful that the grievance raised by the Petitioners could be addressed the standing orders. Can the Speaker overrule the majority of the Senators vote by declaring it unconstitutional after allowing the discussion on the same in the first place and allowing vote on it? My view is that the matter is beyond any dispute settlement mechanism in the Senate. In any case, none was proved to exist for purposes of resolving disputes of this nature.
50.The respondents argued that the petition was an affront to the doctrine of separation of powers. This is because the petitioners had not demonstrated an arbitrary exercise of the Senate’s mandate in passing the impugned amendments in the standing orders. In absence of a violation to the Constitution, it was argued that intervention of the court in the matter would be a violation of the Parliament’s mandate to conduct its business as prescribed by the Constitution.
51.This doctrine affirms that the Constitutional organs must exercise restraint and desist from interfering in matters within the constitutional mandate of other arms.
52.The importance of this doctrine was well captured in the South Africa’s Constitutional Court case of Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11 where Ngcobo J speaking for the majority stated as follows:“The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings. This principle is not simply an abstract notion; it is reflected in the very structure of our government. The structure of the provisions entrusting and separating powers between the legislative, executive and judicial branches reflects the concept of separation of powers. The principle ‘has important consequences for the way in which and the institutions by which power can be exercised’.. …..But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled’. Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations. This court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’. Section 167(4)(e), in particular, entrusts this court with the power to ensure that Parliament fulfils its constitutional obligations. This section gives meaning to the supremacy clause, which requires that ‘the obligations imposed by [the Constitution] must be fulfilled’. It would therefore require clear language of the Constitution to deprive this court of its jurisdiction to enforce the Constitution.”
53.Palpably this court’s intervention is only limited to the scope of checks and balances. This scope was appreciated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:“(49)It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of powers does not only proscribe organs of government from interfering with the other’s functions. It also entails empowering each organ of government with countervailing powers which provide checks and balances on actions taken by other organs of government. Such powers are, however, not a license to take over functions vested elsewhere. There must be judicial, legislative and executive deference to the repository of the function. We therefore agree with the High Court’s dicta in the petition the subject of this appeal that:“[Separation of powers] must mean that the courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the executive sufficient latitude to implement legislative intent. Yet, as the respondentsalso concede, the courtshave an interpretive role - including the last word in determining the constitutionality of all governmental actions...”
54.In the South African case of Speaker of the National Assembly vs. De Lille MP & Anor 297/98 (1999) (ZASCA 50); it was held:“…No Parliament, however bona fide or eminent its membership, no President however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the Constitution…”
55.The Supreme Court of Kenya in Speaker of the Senate & Another vs. Attorney General & 4 Others [2013] eKLR was more explicit on dismantling the argument that standing orders are a regulating the internal conduct of affairs of Parliament are not subject to court’s intervention. The court stated:“..It is clear to us that it would be illogical to contend that as standing orders are recognized by the Constitution, this court which has the mandate to authoritatively interpret the Constitution itself, is precluded from considering their constitutionality because the standing orders are an element in the internal procedures of Parliament…It emerges Kenya’s legislative bodies bear an obligation to discharge their mandate in accordance with terms of the Constitution, and they cannot plead any internal rule or indeed, any statutory scheme, as reprieve from that obligation…”
56.The issue raised by the petitioners before this court is that Senate embarked on an unconstitutional route of amending its standing orders that are inconsistent with article 153(3) of the Constitution thereby rendering those amendments unconstitutional. This is a serious allegation which this court cannot shy away from inquiring into under article 165 (d) (ii) of the Constitution which gives this court jurisdiction to determine whether anything said to be done under the authority of the Constitution or law is in inconsistent with, or in contravention of, the Constitution. Parliament, and indeed the Senate is not beyond the reach of this court under the doctrine of separation of powers in a matter where the question is whether the Constitution has been violated as demonstrated in the judicial decisions referred to above.
57.The final issue is to determine whether the Senate standing orders 44, 51, 51A, 51B, 51C, 51D, 56 and 248 as amended do violate article 153(3) of the Constitution as alleged by the petitioners.
58.The petitioner’s main contention is that the impugned amendments to the Senate standing ordersare unconstitutional for being in contravention of article 153(3) of the Constitution.
59.This assertion was strongly contested by the respondents who argued that the petitioner’s interpretation is ill-conceived and flies in face of the principle of purposive interpretation of the Constitution.
60.An appreciation of principles of Constitutional interpretation is necessary before embarking on the determination of this particular issue.
61.The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR addressing the manner in which the Constitution should be interpreted stated thus:“(137)…. In the Matter of the Kenya National Human Rights Commission, Sup Ct Advisory Opinion Reference No 1 of 2012; [2014] eKLR, this Court [paragraph 26] had thus remarked:“…But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result” [emphasis supplied].(138)In Speaker of the Senate & Another v Attorney-General & 4 Others, Sup Ct Advisory Opinion No 2 of 2013; [2013] eKLR, [paragraph 156], this Court further explicated the relevant principle:“… Each matter that comes before the courtmust be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the court to illuminate legal penumbras that Constitutions borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly [capture] express the minds of the framers, and the minds and hands of the framers may also fail to properly mind the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the court as the searchlight for the illumination and elimination of these legal penumbras…”
62.The Court of Appeal summarized the principles of constitutional interpretation in Centre for Rights Education and Awareness & Another (supra) as follows:“a.It should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance as provided by article 259…The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).”
63.If matters raised concern unconstitutionality of legislation, the general presumption is that Acts of Parliament are enacted in conformity with the Constitution as held by the Court of Appeal of Tanzania in the case of Ndyanabo vs Attorney General [2001] EA 495 citing the English case of Pearlberg vs Varty [1972] 1 WLR 534 that;“…Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative.”
64.The principle purpose and effect of the impugned provision may also be applied as aid to interpretation. This principle was discussed in the case of R v Big M Drug Mart Ltd 1985 CR 295 as follows:“Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of legislation, object and its ultimate impact are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.” (emphasis mine)
65.This principle was also applied by the Constitutional Court of Uganda in the case of Olum and another v Attorney General [2002] 2 EA, where it was noted that:“To determine the constitutionality of a section of a statute or Act of Parliament, the court has to consider the purpose and effect… If its purpose does not infringe a right guaranteed by the Constitution, the court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional…”
66.Correspondingly, the courtin the case of Council of County Governors v Attorney General (supra) highlighted another principle in the interpretation of Statute as follows:“A law which violates the Constitution is void…The court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law is challenged on grounds that it infringes the Constitution, what the court has to consider is the “direct and inevitable effect” of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration is the object and reasons as well as legislative history of the statute. This would help the court in arriving at a more objective and justifiable approach.Thus, the history behind the enactment in question should be borne in mind. Thus any interpretation of these provisions should bear in mind the history, the desires and aspirations of the Kenyans on whom the Constitution vests the sovereign power, bearing in mind that sovereign power is only delegated to the institutions which exercise it and that the said institutions which include Parliament, the national executive and executive structures in the county governments, and the judiciary must exercise this power only in accordance with the Constitution…”
67.From the standpoint of the petitioners, the amendments to the standing ordershave the effect of violating article 153(3) of the Constitution. They argued that the manner in which Cabinet Secretaries are held accountable by Parliament (read Senate) is through Senate Committees hence amending the standing orders to allow them to appear in the Senate is a direct violation the said article 15(3) of the Constitution.
68.The respondentsperspective differed. The respondents asserted the petitioner’s position that the Cabinet Secretary can only appear before the Committee of the Senate and not on the floor of the House is absurd since the Committees are mere delegates of the Senate. The Respondent cited to article 124 of the Constitution which empowers Parliament to establish its own committees and make standing orders to regulate its own proceedings and also, article 125 which empowers either House of Parliament or its Committees to summon any person to appear before it to give evidence or provide information in countering the petitioner’s assertion.
69.The respondent thus insisted that article 153(3) of the Constitution must be read together with article 124 and 125 of the Constitution.
70.Article 153(3) of the Constitution provides:Article 153- Decisions, responsibility and accountability of the Cabinet(3)- A Cabinet Secretary shall attend before a committee of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the Cabinet Secretary is responsible.
72.Article 153(3) lays emphasis on attendances/appearance before the Committee if and when the Cabinet Secretary is required by the committee to answer to a matter to which the Cabinet Secretary is responsible. It uses the word ‘shall’ to emphasize that the attendance is mandatory. Article 153(3) is however silent on whether or not this is only method through which the Senate may hold Cabinet Secretaries accountable.
73.To demonstrate that a restrictive reading as suggested by the petitioners is not accurate, one should read article 124- on Committees and standing orders. the Constitution does not make it mandatory for Parliament (read National Assembly and the Senate) to establish committees, it uses the discretional word ‘may’, ‘Parliament may establish committees.’ What would happen if Parliament chooses not to establish committees, would that mean Parliament cannot exercise the constitutional mandate to hold the Executive through its Cabinet Secretaries to account?
74.If the petitionersargument is to carry the day, it would mean that Parliament will be constitutionally incapacitated from executing that constitutional mandate. That is a constitutional absurdity. Accountability is given to Parliament, (that is, the Senate or the National Assembly); Committees of Senate or the National Assembly are simply means to assist the National Assembly or Senate to discharge that mandate. Parliament can perform those tasks directly if it so desires and this will not be unconstitutional. It is not beholden the Committees which it has created merely to assist it perform its responsibilities.
75.If the above position is not persuasive enough, then article125 should settle any doubts. It provides:125(1)- Either House of Parliament, and any of its committees, has power to summon any person to appear before it for purposes of giving evidence or providing information.
76.The provisions of this article are wide enough to accommodate the Amendments made through the standing orders.
77.Rather than read all the relevant constitutionalprovisions holistically as was held in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra); the Petitioners singly relied on article 153(3) to the exclusion of all others resulting in their narrow interpretation that is not in sync with holistic interpretation of the Constitution.
78.Indeed, even with the application of principles of purpose and effect in constitutional interpretation, the amendments to the said standing ordersby the Senate by and large demonstrate that the intention is to expand the level of accountability by Cabinet Secretaries by requiring them to attend to issues directly raised by the Senators in the House over and above appearing in the Committees. I find this to be in consonance with principles of the Constitution by expanding levels of scrutiny to achieve greater accountability and good governance, values that the Constitution treasures under article 10(2) of the Constitution.
80.The upshot is that I find no merit in the petition. It is dismissed in its entirety.
81.Each partywill bear its own costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023.………………………………L N MUGAMBIJUDGE
▲ To the top

Cited documents 15

Judgment 12
1. Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR) (26 July 2013) (Judgment) Explained 464 citations
2. Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) Explained 152 citations
3. Fleur Investments Ltd v Commissioner of Domestic Taxes & another (Civil Appeal 158 of 2017) [2018] KECA 341 (KLR) (20 April 2018) (Judgment) Explained 68 citations
4. Council of County Governors v Attorney General & another (Constitutional Petition 56 of 2017) [2017] KEHC 6395 (KLR) (Constitutional and Human Rights) (25 April 2017) (Judgment) Explained 35 citations
5. Nzuki v Salaries and Remuneration Commission & 2 others (Constitutional Petition 18 of 2018) [2019] KEHC 1511 (KLR) (18 December 2019) (Judgment) Explained 17 citations
6. Kamau v Kenya Accreditation Service (Petition E053 of 2021) [2021] KEELRC 8 (KLR) (30 July 2021) (Judgment) Explained 9 citations
7. Kenya Youth Parliament & 2 others v Attorney General & another; Kenya for Peace with Truth and Justice & another (Interested Parties) (Constitutional Petition 101 of 2011) [2012] KEHC 5436 (KLR) (Constitutional and Human Rights) (25 May 2012) (Judgment) Mentioned 8 citations
8. Okiya Omtatah Okoiti & another v Attorney General & 6 others [2014] KEHC 8157 (KLR) Mentioned 6 citations
9. Makola & another v Interim Clerk of Machakos County Assembly, Mbiuki & 9 others (Election Petition 5 of 2013) [2013] KEHC 967 (KLR) (24 June 2013) (Judgment) Mentioned 4 citations
10. Catherine Mwihaki Ngambi v International Leadership University [2022] KEHC 1912 (KLR) Explained 3 citations
Act 2
1. Constitution of Kenya Interpreted 42013 citations
2. Statutory Instruments Act Interpreted 309 citations

Documents citing this one 0