REPUBLIC OF KENYA
INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE
INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE
Constitutional Petition 4 of 2010
IN THE MATTER OF: ALLEGED CONTRAVENTION OF SECTIONS 1,3,47,47A,70,72,75 & 78 OF THE CONSTITUTION OF KENYA AND SECTIONS 2,23,24,30,31,32,35,38,39,40,41,42,43,43A OF THE CONSTITUTION OF KENYA REVIEW ACT NO. 9 OF 2008
BETWEEN
BISHOP JOSEPH KIMANI
REV MUSYOKA NZUI
AGNES MBINYA NGUMBI (also known as MUMU NGUMBI)
As officials of MOMBASA PASTORS
FELLOWSHIP…………………………………… PETITIONERS
AND
THE HON ATTORNEY GENERAL …………… 1ST RESPONDENT
THE COMMITTEE OF EXPERTS ……………… 2ND RESPONDENT
THE CHAIRMAN
PARLIAMENTARY SELECT COMMITTEE ….. 3RD RESPONDENT
JUDGMENT
Introduction
This Judgment relates to the Petition filed in this Court on 12th July, 2010. The Petitioners are Bishop Joseph Kimani, Rev. Musyoka Nzui and Agnes Mbinya Ngumbi (also known as Mumu Ngumbi) and they bring the Petition as officials of Mombasa Pastors Fellowship.
The Respondents named in the Petition are the Hon. Attorney General (1st Respondent); The Committee of Experts (2nd Respondent) and The Chairman, Parliamentary Select Committee (3rd Respondent).
The Petitioners state that they are residents of Mombasa, citizens of Kenya whose rights are protected by the Constitution of Kenya and other statutes. Further, they state that they are also born again Christians who profess and practice the teachings of the Holy Bible in matters touching on faith, morality, family and true worship. They say they are spiritual leaders of numerous churches spread all over the Coast Province of Kenya, other parts of Kenya and the world.
Reliefs Sought
The Petitioners seek the following reliefs:
“a) Your Petitioners pray that the referendum be postponed to a later date to allow more time for Kenyans to obtain and read the proposed constitution, receive impartial civic education and seek all the necessary clarifications where necessary, dialogue with each other over the clauses considered contentious and reach homemade consensus.
b) Your Petitioners further pray that the Review Act be amended to provide for further revision of the proposed constitution in line with the decision in the Kadhis Court Case and subject the issue of the Kadhis Court to audit by the people of Kenya through the review organs.
c) Your Petitioners pray for a finding and a declaration that the CoE was wrong by declaring that the Kadhis Court is not a contentious issue.
d) A declaration that in view of the decision in the Kadhis Court Case, the inclusion of the Kadhis court in the proposed constitution is contemptuous.
e) A mandatory order do issue expunging Articles 2(5) and (6), 14(4)24(4), 26(4), 27(4) (as read with 260), 31, 32(3) and (4), 43(1) (a), 169(1) (b) and 170 from the proposed constitution.
f) The Court be pleased to suspend Sections 35,38,39,40,41,42,43 and 43A until the contentious issues are sorted out.
g) An order as to cost...”
Grounds of the Petition
These are stated as “Summary of the Grounds for the Petition andPresentation of arguments supporting each of the ground of the Petition as follows:
(We quote as per original and the wrong numbering and grammatical mistakes are not ours)
“Your Petitioners now complain of the following breaches of their constitutional rights;
a) The Review Organs did not ensure that the national interest prevails over regional or sectoral interests’
b)The Review Organs were not accountable to the people of Kenya and your petitioners.
c) The Review organs did not ensure that the review process accommodated the diversity of the people of Kenya including socio-economic status. Race, ethnicity, gender, religious faith, age, occupation, learning, persons with disabilities and the disadvantaged. Here, the review organs shielded one religion from interrogation by the Kenyan People and your petitioners.
d)The Review Organs did not ensure that the review provided the people of Kenya and your petitioners with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to review and replace the Constitution but instead, right from inception took a rigid position and excluded your petitioners from any meaningful engagements.
e) The Review Organs did not ensure that the review process was guided by the principle of stewardship and responsible management but instead the review organs became the lords of the people of Kenya and your Petitioners by closing all avenues of open and fair debate and engagement. Their approach was rigid and iron fisted.
f) The review Organs was not subject to this Act, and did not ensure that the process was conducted in an open manner. Here, the first draft was done contrary to the review Act and time was not observed. The people of Kenya and your petitioners were not given the time set out in the review Act to present their views. Indeed by the time certain parts of Kenya were getting copies of the first draft, the period for reading and sending memorandum was over. The draft was written in English against a back drop of a country with a high illiteracy level and poor infrastructure.
g) The Review Organs did not ensure that the process was guided by respect for the principles of human rights, equity, affirmation action gender equity, and democracy. By declaring at the very outset that the Kadhis Court issue was never going to be a contentious issue, the CoE was putting the Cart before the horse. This was a blatant abuse of your petitioners human rights and totally undemocratic.
i) The Review Organs have failed to ensure that the outcome of the review process faithfully reflects the wishes of the people of Kenya and your petitioners. Here, the Review Organs have lost the review process to the government of Kenya. The review process has been declared a government project and any Kenyan opposed to any of the provisions of the final draft labeled anti-reform by both the government of Kenya top Officials and agents of the review organs and in particular the CoE. The government of Kenya has prematurely, even before civic education is completed made a cabinet declaration that every minister of the government of Kenya must support the constitution and if not leave the government. The government of Kenya through the top management has pledged financial support to those supporting the final draft and invited American top politician, the Vice President of the USA, a country with immense influence worldwide to drum up support for the draft constitution. The CoE has failed to print and deliver enough copies of the draft constitution to Kenyans to read and understand what they are being called upon to endorse or reject.
j) The CoE has conducted partisan civic education by adopting a biased interpretation of the draft constitution and by openly manifesting hostility to those critical to certain clauses of the draft constitution.
k) Failure by Parliament to define what amounts to a contentious issue. This left the definition to an interested party, the CoE, who have given a narrow, subjective and biased working definition.
l) The CoE while vested with sufficient powers to produce a balanced and well consultative document fell flat by failing to take on board the views of your petitioners.
n) The Review Act provides a wrong and unconstitutional method of making of a constitution by citizens who are the only legitimate organ to make a constitution as a document to govern them. Here, time allocated to each step to the Review organs was extremely short.
o) The Review Act made wrong presumptions that the CoE was unable to identify objectively what amounts to contentious issues.
p) The Review Act sets a timeline, which is oppressive, unachievable and unconstitutional for publication, distribution, public debate and writing of recommendations to the CoE in a country plagued with a high degree of illiteracy and poor infrastructure.
q) The Draft Constitution published on 17th November, 2009 was ultra vires section 30(2) of the Review Act in that the Harmonized Draft was to include as part of its contents:
i) Issues that are not contentious as agreed and closed and
ii) Issues that are contentious and identified as outstanding. This they never did.
r) The Review Organs made a wrong presumption that the review process was an elitist process for the select few who can read the English language by producing most of the drafts principally in the English language and as a second thought in Kiswahili towards the closing days of each stage. The reverse should have been the position so as to have an all inclusive people driven process. Your petitioners state that the entire process is flawed, oppressive and discriminative and it has denied your petitioners and their followers the inherent power to participate in the constitution making process. Equally, this will threaten to take away even these rights protected by the current constitution.
s) The CoE did insert various clauses in the Proposed Constitution, which were never part of any of the previous documents/reference materials, proposals by Kenyans, its drafts or proposed by the Parliamentary Select Committee thus exercising powers beyond its mandate, without jurisdiction and usurping powers vested in the people of Kenya.
r) The Proposed Constitution is a tool to curtail and/or frustrate the fundamental freedom for one to change his religion or belief, manifest and propagate his religion or belief in worship, teaching, practice and observance, which is one of the key fundamental rights.
THAT your petitioners come to this court in good faith for the following reasons;
a) They need Kenyans to have more time to read and understand the draft constitution.
b) They need a clear definition of what amounts to a contentious issue which parliament never defined. This benefits every Kenyan.
c) They need Kenyans to be fully involved in the constitution making process. This includes those who are illiterate and cannot read the draft constitution on their own.
d) They need the Constitutional rights of every citizen and the inherent rights of citizens to make a constitution upheld.
e) They need the draft constitution to be circulated to the whole country.
f) They need the proposed constitution amended before being placed for referendum.
In section 4 of the Act, parliament set out the key pillars for the review of the Constitutions as follows:-
a) Guaranteeing peace, national unity and integrity of the republic of Kenya in order to safeguard the well-being of the people of Kenya;
b) Establishing a free and democratic system of Government that guaranteed good governance, constitutionalism, the rule of law, human rights, gender equity, gender equality and affirmative action;
c) Recognizing and demarcating divisions of responsibility among the various state organs including the executive, the legislature and the judiciary so as to create checks and balances between them and to ensure accountability of the Government and its officers to the people of Kenya;
d) Promoting the people’s participation in the governance of the country through democratic, free and fair elections and the devolution and exercise of power.
e) Respecting ethnic and regional diversity and communal rights including the right of communities to organize and participate in cultural activities and the expression of their identities.
f) Ensuring the provision of basic needs of all Kenyans through the establishment of an equitable frame-work for economic growth and equitable access to national resources;
g) Promoting and facilitating regional and international co-operation to ensure economic development, peace and stability and to support democracy and human rights;
h) Strengthening national integration and unity;
i) Creating conditions conducive to a free exchange of ideas;
a) Ensuring the full participation of people in the management of public affairs; and
b) Committing Kenyans to peaceful resolution of national issues through dialogue and consensus.
On 16th December, 2009, when your petitioners realized that their views had been ignored filed;
High Court Petition Number 669 of 2009: Bishop Joseph Kimani & 2 others Versus the Hon. Attorney General, the Committee of experts chairman, Parliamentary select committee
Here, your petitioners sought substantive orders as Follows:-
a) That this Honourable Court be pleased to declare Section 2,23,24,30,31,32 and 33 of the constitution of Kenya Review 2008 Act (Act no. 9 of 2008) unconstitutional, null and void.
Alternatively
b) This Court do give a definition of what amounts to Contentious Issue and whether the following issues as raised by the Petitioners surrounding;
i) Sanctity of life.
ii) The Family and the right to found a family between a biological man and a biological Woman.
iii) Separation of state and Religion.
iv) The Kadhis Court.
v) Provisions regarding Citizenship
Amount to Contentious issues which should be presented before the Parliamentary Select Committee in terms of Section 32(1) (b) of the Review Act.
c) A declaration that Constitutional rights of the Petitioners have been breached.
d) An Order Compelling the Committee of Experts to include the issues set out in (b) above as Contentious issues in terms of Section 32 (1) (b).
e) A declaration that the constitution gives every person in Kenya an equal right to review the constitution which rights embodies the right to participate in the writing of the constitution through a National Referendum.
f) That Section 2,23,24,30,31,32 and 33 are inconsistent with the citizens’ constitutional right to effectively participate in the process of writing and ratifying the constitution.
g) A declaration that Article 21 of the Universal Declaration of Human Rights 1948 which is embodied and implied in Section 82 of the Constitution bars the CoE from identifying contentious issues in a discriminatory manner.
h) A Declaration that the constitution Review process as envisaged under the Review Act does not comply with the fundamental tenets and principles of democracy as enshrined in the constitution.
1) Costs of the Petition
11) Any other relief the court may deem expedient.
For purposes of this petition, this case shall be referred to as the High Court Petition.
28. On 6th January 2010, the trial judge of the High Court Petition dismissed the interlocutory application and forwarded the file to His Lordship the Chief Justice for directions.
29. Your petitioners state that, before His Lordship could give directions, this court was operationalized.
30. On 14th May 2010 His Lordship gave directions for your petitioners in the High Court petition to appear before the trial court for directions. The trial court struck out the High Court Petition on 31st May, 2010 alleging lack of jurisdiction.
31. While your petitioners were seeking justice in court;-
a) On 6th May 2010 the Hon. Attorney general published the proposed Constitution of Kenya in accordance with section 34 of the Review Act.
b)The Interim Independent Electoral Commission published a legal notice fixing the date for conducting the referendum as the 4th August, 2010.
32. Further on 24th May 2010 the High Court presided over by a three (3) judge constitutional bench delivered a judgment in the Kadhis Court Case which cannot be wished away that:-
i) A declaration that any provision similar to section 66 in any other draft of a Constitution in word and effect is not ripe for determination.
ii) The enactment and the application of the Kadhis Court to areas beyond the 10 miles coastal strip of the protectorate is unconstitutional.
iii) An order that the financial maintenance and support of the Kadhis Courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust as against the applicants and others and amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion (secularism) and is therefore contrary to the universal norms and principles of liberty and freedom of religion under section 70,78 and 82 of the constitution and also against the principles of separation of state and religion as captioned by section 1A of the constitution.
iv) An order that the purported extension of the Kadhis Court through the enactment of the Kadhis Courts Act beyond the protectorate areas contravenes section 64 (4) and section 4(2) of the Kadhis Courts Act and is therefore unconstitutional, null and void to the extent of the inconsistency and for that reason a declaration in terms prayed.
v) A declaration that any form of religious courts should not form part of the judiciary in the constitution as it offends the doctrine of separation of state and religion.
vii) A declaration that the entrenchment of the Kadhis Court in the constitution elevates and uplifts the Islamic religion over and above the other religions in Kenya which is inconsistent with section 78 and 82 of the constitution and discriminatory in its effect against the applicants and Kenyans of other religions.
33. Section 2(3) of the proposed constitution states that:-
“The validity or legality of this constitution is not subject to challenge by or before any court or other state organ.”
34. Your petitioners state that:-
“i) All the review organs as set out in section 4 of the Act have failed, refused and ignored your petitioners’ position that the Kadhi’s Court issue is a contentious issue.
ii) All review organs have failed refused and ignored to afford your petitioners with an unbiased audience and take on board your petitioners issues.
iii) The state machinery led by President Mwai Kibaki and the Prime Minister Raila Odinga has emerged as an extra review organ and instead of being impartial have taken a partisan stand even before the official campaign period is announced.
iv) Your petitioners have been branded as liars, anti-reformists as well as lone rangers even by some of the top leadership of the land.
v) Your petitioners are aware about the heavy responsibility set out in the draft constitution for amending the constitution once passed or even challenging the outcome of the forth coming referendum.
vi) Your Petitioners pray that the referendum be postponed to a later date to allow more dialogue.
vii) Your Petitioners further pray that the Review Act be amended to provide for further revision of the draft Constitution in line with the decision in the Kadhis Court and subject the issue of the Kadhi Court to audit by the people of Kenya through the review organs.
viii) Your Petitioners pray for a finding that in view of the decision in the Kadhis Court Case, the inclusion of the Kadhis Court in the draft constitution is contemptuous and that the CoE should be directed to expunge Articles 169 (1) (b) and 170 from the proposed constitution before presenting it for the referendum”
Affidavit
The Petition is supported by the Affidavit of Bishop Joseph Kimani sworn on 2nd July, 2010 to which there are various annextures. In as much as it is material, Bishop Kimani depones in the 25 page Affidavit that he is a Christian, a Bishop, and head of a Church, Chairman of Mombasa Pastors Association and a Kenyan.
· He has authority of the other Petitioners to make the Affidavit.
· They have support of a number of their members (annexture JK3 inter alia documents of such support)
· There are various averments on God’s teachings and the responsibility of governments and citizens.
· The Court should intervene to avoid a good draft constitution being lost at referendum for issues that should have been sorted out.
· Various issues have been taken by the Petitioners with the Committee of Experts but ignored.
· The Petitioners have been actively involved in the Constitution making process and have been involved in consultative forums and Civic Education.
· The Petitioners voted at the 2005 Constitutional Referendum and voted against the then proposed draft for the reasons of:
- Supremacy of God.
- Separation of State and Religion.
- Sanctity of Life.
- The family and the right to found a family between a biological man and a biological woman.
- Provisions regarding citizenship.
- Others such as land tenure and ownership, national core values and the danger to the mode of adoption suggested for the adoption of international agreements, treaties and standards.
The Petitioners brethren filed Nairobi HC MISC CIVIL APPLICATION NO. 890 OF 2004 Very Rev. Dr. Jesse Kamau and 25 Others Vs. Hon the Attorney General and Another
The Constitution of Kenya Review Act (2008) was enacted and it created various organs of Constitutional review including Committee of Experts.
Various provisions of the said Act are set out;
· A harmonized draft Constitution was to be prepared by Committee of Experts in one document.
· The backbone of the statutory assignment to Committee of Experts by the Act was identification and dealing with “contentious issues”.
· Parliament did not provide a definition of “contentious issues”
· The Committee of Experts ignored submissions of the Petitioners.
· On 21.10.2009 CoE published in newspapers a joint statement by CoE and
The Reference Group where it was declared that the Kadhi Court issue would no longer be an issue.
The Petitioners were not represented by a representative of their choice at the said forum.
CoE identified contentious issues as:
- The Executive and Legislature
- Devolution of Powers
- Bringing the Constitution into effect
· The Matters set out at Section 4 of the Review Act.
· The review organs did not ensure that the national interest prevailed over regional or sectoral interests.
· The review organs were not accountable to the people of Kenya and the Petitioners.
· The review organs did not ensure that the review process accommodated the diversity of the people of Kenya including socio-economic status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disabilities and the disadvantaged. Review organs allegedly shielded one religion from interrogation by the Kenyan people and the Petitioners.
· The review organs took a rigid position and excluded the petitioners from any meaningful engagements.
· Review organs became the lords of the people of Kenya instead of (its stewards.
· Review organs acted contrary to the Act and did not keep within time-lines created by the Act.
· Copies of draft were delayed and did not reach parts of Kenya on time or at all.
· The draft was in English, a language not understood by many Kenyans.
· Review organs did not ensure that the process was guided by respect for the principles of human rights, equality, affirmative action, gender equity and democracy.
· Review organs failed to carry out duties and allowed government to hijack the process. Cabinet declared that Ministers must support the Process and even invited the Vice-President of the U.S.A. to come and support.
· CoE conducted partisan civic Education.
· Time allocated for steps of review was too short, time-lines are oppressive unachievable and unconstitutional.
· CoE acted ultra vires.
· The draft should first have been published in Kiswahili, not English language.
· The good faith efforts of the Petitioners on their own behalf and on behalf of all other Kenyans.
· The Petitioners on 16.12.2009 filed High Court Petition No. 669 of 2009 Bishop Joseph Kimani & 2 others V the Hon. The Attorney General & others where application was dismissed on 6.1.2010 and the suit struck out on 31.5.2010.
· On 6.5.2010 the Attorney general published proposed Constitution in terms of section 34 of the Act.
· IIEC published a Gazette Notice fixing the Referendum date as 4.8.2010.
· On 24.5.2010 the High Court in the Rev. Jesse Kamau (supra) case delivered a judgment declaring inter alia:
- Any provision similar to Section 66 of the Constitution is not ripe for determination.
- Enactment and application of Kadhis’ Court to areas beyond the 10 miles coastal strip of the protectorates is unconstitutional.
- Financial maintenance of Kadhis’ Courts from public funds is unconstitutional.
- religious courts should not form part of judiciary
· Review organs have ignored petitioners position on the kadhis court issue as contentious
· Petitioners have been branded negatively by top leadership of government.
· The referendum should be postponed to a later date to allow more dialogue.
· Review Act be amended to provide for further revision of the proposed Constitution in line with the Rev. Jesse Kamau case and Articles 169 and 170 be expunged from the proposed draft.
The petitioners frame 8 questions to be determined by the Court.
Other Documents
They are:
i) Petitioner’s submissions filed on 26.7.2010.
ii) Petitioners Authorities filed on 26.7.2010
iii) Skeletal submissions by the Attorney General filed on 26.7.2010
iv) Response by the Attorney General filed on 26.7.2010
v) 2nd Respondents skeletal arguments filed on 26.7.2010
vi) 3rd Respondents skeletal arguments filed on 23.7.2010.
vii) Notice of Preliminary Objection by the 3rd Respondent filed on 23.7.2010.
viii) Statement of Response by the 2nd Respondent filed on 22.7.2010.
A Motion which accompanied the Petition was dispensed with when the Court ordered that the Petition itself be heard.
Preliminary Objection
The 3rd Respondent named in the Petition as:
“The Chairman, Parliamentary Select Committee” filed a Notice of Preliminary Objection. Objection is as follows:
1. “TAKE NOTICE this Honourable Court has no jurisdiction to hear a suit filed against the Chairman, Parliamentary Select Committee in respect of either his own act or acts of a Committee in exercise of the powers conferred and vested by the Constitution of Kenya, any legislation and the Standing Orders. This Petition filed by the Petitioners has, as its cause of action against the 3rd Respondents, acts allegedly carried out by the Chairman of a Parliamentary Select Committee in exercise of the powers conferred and vested in him/her by the Constitution of Kenya, subsidiary legislation and the Standing Orders. This Honourable Court therefore has no jurisdiction to hear the Petition against the 3rd Respondent.
2. THAT the Proposed Constitution was adopted by the National Assembly On 1st April 2010 and subsequently published by the Attorney General and is now awaiting adoption or rejection by Kenyans at the 4th August 2010 referendum. This Honurable Court has no jurisdiction to interfere with a resolution of the House and the provisions of the Constitution and statue enacted by Parliament.
3. THAT Parliament properly exercised its powers under the Constitution by enacting the Constitution of Kenya Review Act, 2008. The Constitutional principle of separation of powers precludes the High Court from exercising any jurisdiction over the proceedings of Parliament and is further precluded from re-writing legislation.
4. THAT the Petitioners have sued “The Chairman, Parliamentary Select Committee”. The 3rd Respondent is not an organ of Review as set in the Constitution of Kenya Review Act. The 3rd Respondent is not a legal entity capable of being sued. Further to this, there are many Parliamentary Select Committees and the Petitioners have not specified which Select Committee they are suing.
5. THAT this Honourable Court is being urged to adjudicate on a political process. The Court is not equipped to do so under the political doctrine principle since it is not justiciable. The Court cannot interfere with the process that has been carried out of generating and assembling proposals for a new Constitution, the adoption of the proposed Constitution by the National Assembly and the exercise by the people of Kenya of their constituent power through the referendum to be held on 4th August 2010.
Although Counsel decided to urge the preliminary points as part of the main argument, it is usually necessary and convenient to deal and dispose of a preliminary point as it may influence the main suit.
Mr. Anthony Njoroge, Counsel for the 3rd Respondent, argued that the entity sued as “The Chairman, Parliamentary Select Committee” was not an organ of review as set out in the Constitution of Kenya Review Act. Further that the 3rd Respondent is not a legal entity capable of being sued and that, in any event, there were many Parliamentary Select Committees and the Petitioners had not specified which Select Committee they were suing.
The 2nd limb of Mr. Njoroge argument relates to the other points stated above on privilege of Parliament and Parliamentary Committees. He cited Sections 56 and 57 of the Constitution of Kenya and also the National Assembly (Powers and Privileges) Act Chapter 6 of the Laws of Kenya. The 3rd Respondent, if properly sued, would enjoy privilege.
Mr. Gikandi Ngibuini, Counsel for the Petitioners, even in the face of the said Preliminary objections filed and served on him, did not apply for amendment of pleadings. Instead, he believed, and so submitted, that under the powers donated to the Court by Section 60A of the Constitution and Rule 10 of the Rules of Court, the Court had a wide discretion even on its own motion to amend the pleadings. What prejudice, he wondered, could the 3rd Respondent suffer when it (the 3rd Respondent) had appointed Counsel and even filed documents in response to the suit?
On privilege, Mr. Ngibuini submitted that Sections 56 and 57 of the constitution of Kenya and the provisions of the National Assembly (Powers and Privileges) Act were inapplicable and must give way to Section 60A of the Constitution which not only created this Court but expressly gave power to the Court to act independently and not under the control of any power or authority. According to him, this section (60A) was supreme as it is a new provision created when the other provisions existed.
Sections 56 and 57 of the Constitution provide as follows:
“56(1) Subject to this constitution, the National Assembly may:-
(a)make standing orders regulating the procedure of the Assembly (including in particular orders for the orderly conduct of proceedings)
(b)Subject to standing orders made under paragraph (a), establish committees in such manner and for such general or special purposes as it thinks fit, and regulate the procedure of any committee so established.
(2) Subject to this Constitution, the National Assembly may act notwithstanding a vacancy in its membership (including a vacancy not filled when the Assembly first meets after a general election), and the presence or participation of a person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.
57 Without prejudice to the powers conferred by section 56, Parliament may, for the purpose of the orderly and effective discharge of the business of the National Assembly, provide for the powers, privileges and immunities of the Assembly and its committees and members”
Section 29 of the National Assembly (Powers and Privileges) Act provides that:
“Neither the Speaker nor any officer of the Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the speaker or such officer by or under this Act or the Standing Orders”
We note that the Notice of Appointment of Advocates by the 3rd Respondent is made under protest. Even the skeletal arguments filed on 23rd July, 2010 are drawn under protest. The Petitioners Advocate having been served with all the said documents did not make any attempt to amend the Petition.
We have noted and considered the above omissions and errors but note that this suit raises issues of a public interest nature. The 3rd Respondent, wrongly named as “The Chairman, Parliamentary Select Committee” was served, proceeded to appoint Counsel and filed documents in response to the suit. The 3rd Respondent is thus not embarrassed or prejudiced in any way and we agree with Mr. Ngibuini that the error is not fatal to the pleadings. It is obvious from the pleadings and the circumstances of this matter that the Petitioners intended to sue the Chairman, Parliamentary Select Committee on the Review of the Constitution (as defined at Section 2 of the Act). It is prayed that we exercise our discretion and amend accordingly. We agree and it is so ordered.
The 2nd limb of the submission relates to parliamentary privilege as provided by Section 56 and 57 of the Constitution and Section 29 of the National Assembly (Powers and Privileges) Act.
Mr. Njoroge argued that even if the 3rd Respondent was properly named, a suit against him would not stand in view of the privilege donated by the said provisions of the Constitution and statute. Mr. Ngibuini argued that Section 60A of the Constitution was a superior provision having come into force recently and the other provisions must give way to it.
With respect, we do not agree that one provision of the Constitution is superior to the others. Although we shall say more on this later, suffice to say that the Constitution as supreme law is a wholesome document, it is a living document and operates through all the provisions, not one. To hold otherwise would be to say of the living person: Can the eye say to the nose: you protrude on the face and make it uneven and must be expunged! Or the right hand says to the left hand: “we are right – handed and do not need you!” This would be illogical and unreasonable and in this we have the comfort of the scriptures because it is written in 1st Corinthians 12:12 -26 (New International Version)
“The body is a unit, though it is made up of many parts; and though all its parts are many, they form one body. So it is with Christ. For we were all baptized byone Spirit into one body—whether Jews or Greeks, slave or free—and we were all given the one Spirit to drink.
Now the body is not made up of one part but of many. If the foot should say, "Because I am not a hand, I do not belong to the body," it would not for that reason cease to be part of the body. And if the ear should say, "Because I am not an eye, I do not belong to the body," it would not for that reason cease to be part of the body. If the whole body were an eye, where would the sense of hearing be? If the whole body were an ear, where would the sense of smell be? But in fact God has arranged the parts in the body, every one of them, just as he wanted them to be. If they were all one part, where would the body be? As it is, there are many parts, but one body.
The eye cannot say to the hand, "I don't need you!" And the head cannot say to the feet, "I don't need you!" On the contrary, those parts of the body that seem to be weaker are indispensable, and the parts that we think are less honorable we treat with special honor. And the parts that are unpresentable are treated with special modesty, while our presentable parts need no special treatment. But God has combined the members of the body and has given greater honor to the parts that lacked it, so that there should be no division in the body, but that its parts should have equal concern for each other. If one part suffers, every part suffers with it; if one part is honored, every part rejoices with it”
Justice M.K. Ibrahim, sitting at the High Court in Mombasa, in Petition No. 669 of 2009 (the parties are the same parties as in this suit) expressed himself thus:
“The High Court of Kenya is a legal creature of the Constitution and is therefore subject to/and inferior to the Constitution. I am of the firm view that the High Court has no legal or moral authority or power to sit on judgment or jurisprudential opinion over the Constitution of Kenya. It is only the Parliament vested with the will of the people of Kenya and the mandate to represent them and act on their behalf in accordance with the provision of the Constitution that can purport to review, alter or amend the Constitution. Also at the appropriate time in the Constitutional development and progress of a nation, the people of Kenya themselves can endeavour to alter the Constitution through a legally constituted Referendum. This is the ultimate instrument of legal devolution……………………..
On the basis of the said provisions and oaths taken no Judge ought to question the Constitutionality, legality, validity or propriety or otherwise of any constitutional provision or the Constitution in its entirety. Equally, a judge sitting in the High Court in its interpretational functions cannot in law question the constitution or purport to interpret or construe on any inconsistencies inter se or between various provisions of the Constitution.
On what basis can I as a Judge interpret or construe that section 60 is superior to section 60 A and therefore assume jurisdiction over matter or disputes touching on the Constitutional Review Process.
I do hereby hold that all Sections of the Constitutions of Kenya are the same and none is superior to the other. I do hold that there are and cannot be any inconsistencies between sections of the Constitution of Kenya in the eyes of the High Court and if there is such possibility then the High Court has no jurisdiction to entertain any matter inviting it to make any finding to that extent. That can only be the role of the Supreme law making body of the Legislature or Parliament or when the time comes the Referendum by the people of Kenya…”
Mr. Njoroge argued further that the process envisaged by Section 47A of the Constitution having began and the proposed Constitution adopted by Parliament and a Referendum date fixed, the Court lacked jurisdiction to entertain the suit. In any event, he argued that on the political principle doctrine the reliefs sought by Petitioners were not justiciable, as the Committee of Experts had exercised discretion in determining what contentious issues were. The Petitioners would not, according to him, suffer irreparably as Article 257 of the proposed Constitution provided a necessary avenue for redress.
These submissions will be considered with the submissions of other Respondents.
On the Preliminary objections on whether the 3rd Respondent can be sued it will be seen that Sections 56 and 57 of the Constitution and Section 29 of the National Assembly (Powers and Privileges) Act grant privilege to Parliament, its members and Committees who cannot be sued for words spoken or actions taken in an official capacity.
There is one aspect of the matter that we must raise ourselves. Section 5 of the Constitution of Kenya Review Act creates organs of review as follows:
“The organs through which the review of the Constitution shall be completed are-
(a) the Committee of Experts;
(b)the Parliamentary Select Committee;
(c) the National Assembly; and
(d)the Referendum
So that the Parliamentary Select Committee defined in Section 2 of the Act as “Parliamentary Select Committee on the Review of the Constitution” is one of the organs of review. As discussed above, Parliament, its Officers and Committees enjoy privilege and immunity donated by the law and cannot be sued. What, therefore, happens if there is a genuine complaint against that organ acting as an organ of review? Where is the complainant who has a genuine grievance to take his complaint? According to Mr. Ngibuini there is a conflict in laws which must be resolved by the provisions of the constitution (Sections 56 and 57 thereof) and Section 29 of the National Assembly (Powers and Privilege Act) giving way to Section 60A of the constitution for the reasons inter alia that this is a provision that came later in time.
We have already expressed ourselves on the supremacy of each of the various provisions of the constitution and we will say no more on this aspect of the matter.
We must say however that the framers of the Constitution Review Act left a lacuna in law, which may cause injustice. Parliament may consider giving a fresh look to the said provision. For the foregoing reasons we agree with the 3rd Respondent that it enjoys privilege and cannot be sued and to that end, the suit against the 3rd Respondent is hereby struck out.
Tied to the same is the prayer raised by the petitioners for the court to amend the Review Act as prayed by the petitioners.
According to Albert Venn Dicey in an Introduction to the Study of the Law of the Constitution (1885), he is of the view;
'Parliament has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.'
This view is in line with the pronouncements of the English Courts in the case of Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 wherein Lord Campbell pronounced:
'...all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a bill has passed both houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, what was done to it previously being introduced, or what passed in Parliament during the various stages of its progress through both houses of Parliament.'
The same principle was affirmed in the case of Pickin v British Railways Board [1974] AC 763, where Lord Reid reiterated the words of Lord Campbell in Edinburgh & Dalkeith and stated in judgement,
'For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.
In the same case and in similar vein, Lord Morris had this to say;
'It is the function of the courts to administer the laws which Parliament has enacted. In the process of Parliament, there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all.'
This view is buttressed by section 12 of the National Assembly (Powers & Privileges) Act (Chapter 6), which states;
Sec 12. Proceedings not to be questioned in Court: No proceedings or decision of the Assembly or the Committee of Privileges acting in accordance with this Act shall be questioned in any court.
From this, it is quite clear that courts will obey statutes as long as they are passed correctly and abide the constitution and further, that ordinary courts have no jurisdiction, nor are they willing, to enquire into issues concerning the internal affairs of Parliament. Despite the foregoing, we must take the opportunity to affirm the fact that the courts are not powerless when it comes to pronouncing statutes unconstitutional, which largely has been the domain of the high court exercising constitutional jurisdiction.
The Arguments
We have dealt with a substantial part of the argument when considering submissions on preliminary objections.
Mr Ngibuini argued in support of the Petition that the Petitioners had been involved in the constitutional review process. They presented views to the Committee of Experts through the Memorandum received by the CoE on 30.11.2009. In that Memorandum the Petitioners detailed what they considered to be contentious issues as:
i) Devolution of Powers
ii) State and Religion
iii) Land
iv) Right to Life
V) Right to marry
The Petitioners complain that the CoE recognized devolution as one of the contentious issues but not the other issues raised by them. They contend that the state must be separated from religion and Article 170 of the proposed constitution must be expunged as the CoE acted ultra vires. The Petitioners rely on the holding of the High Court in Misc. Civil Application No. 890 of 2004 Very Right Rev. Dr. Jesse Kamau & 25 others V. The Hon. The Attorney – General & Another where it was held inter alia that Section 66 of the constitution was in conflict with Section 82 of the Constitution.
Mr. Ngibuini submitted further that the harmonized draft should have contained in one document issues that were contentious and issues that were not contentious. According to him the issue on Kadhi Courts was contentious and having been omitted from the list of “contentious issues”, there was a fatal error in the process and every action that ensued by the CoE or any other organ of review was flawed, ultra vires and illegal. The effect of the fatal error was to stop time from running and the court has jurisdiction to order the review organs to correct errors so time can start running again. This submission was made also in respect of the other grievances on land, right to life and right to marry.
Miss. Wanjiku Mbiyu, the Senior Deputy Chief Litigation Counsel, appearing for the 1st Respondent reminded the court that the Attorney General had filed a Notice of Appeal to the Court of Appeal against the judgment in the Very Right Rev. Dr. Jesse Kamau case (supra) and there was a pending application for stay of execution pending appeal. Ms.Mbiyu cited Section 47 A of the constitution in support of her submission that several processes of review roles of the CoE, Parliamentary Select Committee and the National Assembly – had been accomplished and that only outstanding issue was holding of the Referendum. The people of Kenya must thus be given an opportunity to exercise their primordial power (the Rev. Njoya case) through Referendum slated for 4.8.2010.
Mr. P. Nowrojee, Counsel for the 2nd Respondent referred the Court to the Preliminary Report of The Committee of Experts on Constitutional Review issued on the publication of The Harmonized Draft Constitution on 17/11/2009. This was the Report prepared by the CoE in compliance with its mandate under the Constitution of Kenya Review Act (2008). He submitted that the CoE had given a full consideration of the Petitioners grievances stated above and to demonstrate took the Court through various sections of the said report. He also made the point that more than 12,000 people gave their views which were considered together with the Petitioners views, which views were later collated into the harmonized draft from which thereon was tabled before the Parliamentary Select Committee for consensus building on the contentious issues. Subsequently, he went on to say, that the draft was introduced into the National Assembly and was passed unanimously without any amendments.
On the Petitioners prayer that the Referendum be postponed, Mr. Nowrojee submitted that the court had no jurisdiction as granting such a prayer would be tantamount to an amendment of the constitution where, at Section 47A, the time-lines for holding a Referendum are couched in mandatory terms. Mr. Nowrojee reminded the court not to trespass on an area of legislative function and that the CoE, in determining what was contentious or not exercised discretion. The petitioners had a lay feeling that they were denied something.
On the issue of delay, Mr. Nowrojee submitted that there was inordinate delay on the Petitioners part as debate on “contentious issues” started in May 2009. The Petitioners waited until 18.12.2009 when they filed a case at the High Court of Kenya, Mombasa (HC. Misc No. 669/2009). This Court was operationalized in January, 2010. The Petitioners did not file this suit until 12.7.2010.
Mr. Ngibuini in reply reminded us of some principle “Prevention is better that cure” and submitted that it would be unfair to allow a flawed process to continue when it would be a herculean task to move an amendment if the Proposed Constitution was approved at the Referendum.
We do hope that we have fairly summarized the various positions, pleadings and submissions made in this matter and, lest we forget, must express our sincere gratitude to the Advocates who appeared before us and argued the case. They were all well prepared and it is obvious that a lot of industry was employed in doing so.
The Constitution of Kenya Review Act and the Constitution
The Constitution of Kenya Review Act (No. 9 of 2008) (“the Act”) commenced on 22.12.2008. The long title to the Act is instructive for it describes itself as:
“AN ACT of parliament to facilitate the completion of the review of the constitution of Kenya, and for connected purposes”.
Section 3 of the Act on “objects and purpose of the Act” provides that:
“3. The object and purpose of this Act is to-
(a)provide a legal framework for the review of the Constitution of Kenya.
(b)provide for the establishment of the organs charged with the responsibility of facilitating the review process;
(c) establish mechanisms for conducting consultation with stakeholders;
(d)provide a mechanism for consensus-building on contentious issues in the review process; and
(e) preserve the materials, reports and research outputs gathered under the expired Act.
Section 4 of the Act provides for “Objects and purpose of constitution review process as:
“4. The object and purpose of the review of the Constitution is to secure provision therein-
(a) guaranteeing peace, national unity and integrity of the Republic of Kenya in order to safeguard the well-being of the people of Kenya.
(b)establishing a free and democratic system of Government that guarantees good governance, constitutionalism, the rule of law, human rights, gender equity, gender equality and affirmative action;
(c) recognizing and demarcating divisions of responsibility among the various state organs including the executive, the legislature and the judiciary so as to create checks and balances between them and to ensure accountability of the Government and its officers to the people of Kenya;
(d)promoting the peoples’ participation in the governance of the country through democratic, free and fair elections and the devolution and exercise of power;
(e) respecting ethnic and regional diversity and communal rights including the right of communities to organize and participate in cultural activities and the expression of their identities;
(f) ensuring the provision of basic needs of all Kenyans through the establishment of an equitable frame-work for economic growth and equitable access to national resources;
(g) promoting and facilitating regional and international co-operation to ensure economic development, peace and stability and to support democracy and human rights;
(h) strengthening national integration and unity;
(i) creating conditions conducive to a free exchange of ideas;
(j) ensuring the full participation of people in the management of public affairs; and
(k) committing Kenyans to peaceful resolution of national issues through dialogue and consensus”.
The organs through which the review of the constitution shall be completed are:
a) The Committee of Experts.
b) The Parliamentary Select Committee
c) The National Assembly; and
d) The Referendum
The guiding principles on which the organs of constitution review will be guided are at Section 6 of the Act as follows:
“6. In the exercise of the powers or the performance of the functions conferred by this Act, the organs specified in section 4 shall-
“(a) ensure that the national interest prevails over regional or sectoral interests;
(b) be accountable to the people of Kenya,
(c) ) ensure that the review process accommodates the diversity of the people of Kenya including socio-economic status, race, ethnicity, gender, religious , faith, age, occupation, learning, persons with disabilities and the disadvantaged;
(d) Ensure that the review process-
i) Provides the people of Kenya with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to review and replace the Constitution.
(ii) Is guided by the principles of stewardship and responsible management;
iii) Is, subject to this Act, conducted in an open manner; and
iv) Is guided by respect for the principles of human rights, equality, affirmative action, gender equity, and democracy;
e) Ensure that the outcome of the review process faithfully reflects the wishes of the people of Kenya.
The functions and power of the Committee of Experts are seen at Section 23 of the Act. They are:
“23. The Committee of Experts shall-
a) identify the issues already agreed upon in the existing draft constitutions;
b) identify the issues which are contentious or not agreed upon in the existing draft constitutions;
c) solicit and receive from the public written memorandum and presentations on the contentious issues;
d) undertake thematic consultations with caucuses, interest group and other experts;
e) carry out or cause to be carried out such studies, researches and evaluations concerning the constitution and other constitutions and constitutionals systems;
f) articulate the respective merits and demerits of proposed option for resolving the contentious issues;
g) make recommendations to the Parliamentary Select Committee on the resolution of the contentious issues in the context of the greater good of the people of Kenya;
h) prepare a harmonized draft Constitution for presentation to the National Assembly.
i) facilitate civic education throughout the review process in order to stimulate public discussions and awareness of constitutional issues;
j) liaise with the Electoral commission of Kenya to hold a referendum on the Draft Constitution; and
k) do such other things as are incidental or conducive to the attainment of the objects and principles of the review process”.
Even reference materials are statutorily provided for in explicit terms at Section 29 of the Act as follows:
In the performance of its functions under this Act, the Committee of Experts shall draw upon the views and materials collected or prepared by the various organs of review under the expired Act, including but not limited to-
a) the summary of the views of Kenyan’s collected and collated by the Commission:
b) the various draft constitutions prepared by the Commission and the Constitutional Conference;
c) the Proposed new Constitution, 2005;
d) documents reflecting political agreement on critical constitutional questions, such as the document commonly known as the Naivasha Accord:
e) analytical and academic studies commissioned or undertaken by the Commission or the Constitutional Conference.
Power is donated to the CoE at Section 30 of the Act to study all existing draft constitutions and other appropriate material and prepare a report identifying on the one hand issues not contentious and agreed upon and on the other issues contentious not agreed upon whereafter, after representations from the public, interest/groups and experts prepare a harmonized draft constitution.
Section 31 created a “Reference Group” of 30 representatives. Section 32 of the Act is instructive for it states that:
“Section 32(i) The Committee of Expert shall-
(a)“Upon preparation of its report and the harmonized draft Constitution referred to in section 30-
(i) Publish the draft Constitution for a period of thirty days; and
(ii) Ensure that the report and the draft Constitution are made available to the public;
(b) upon the expiry of the period provided for in paragraph (a) (i), review the draft Constitution and incorporate the views of the public ; and
(c) within twenty one days of the expiry of the period provided for in paragraph (a) (i), present the draft Constitution and the report to the Parliamentary Select Committee for deliberation and consensus building on the contentious issues on the basis of the recommendations of the Committee of Experts”
The various steps to be undertaken thereafter are spelt out at Section 33 of the Act on revision of the draft constitution, handing over of the draft constitution to the Parliamentary Select Committee, tabling of the same before the National Assembly; debate, approval and publication. A Referendum to approve or reject the proposed Constitution is provided for.
Section 35 of the Act provides for Civic education and time-lines on the same while the “Referendum Question” is provided for at Section 37 and notice of holding referendum is to be found at Section 39.
We have travelled the long journey of going through the provisions of the Act in details inter alia because the various complaints raised by the Petitioners are squarely on matters and time-lines in-build in those provisions.
The above provisions of the Review Act borrow directly from section 47 A of the constitution and we here below set it out in full:
“47A. (1) Subject to this Section, this Constitution may be replaced.
(2) Notwithstanding anything to the contrary in this Constitution-
(a)the sovereign right to replace this Constitution with a new Constitution vests collectively in the people of Kenya and shall be exercisable by the people of Kenya through a referendum, in accordance with this section;
(b)when a draft Constitution proposing the replacement of this Constitution has been introduced into the National Assembly, no alteration shall be made in it unless such alteration supported by the votes of not less than sixty-five per cent of all the members of the Assembly (excluding the ex officio members); and
(c) the National Assembly shall, within thirty days of the introduction in the Assembly of a draft Constitution proposing the replacement of this constitution, debate all proposed amendments to the draft Constitution, and submit to the Attorney-General the draft Constitution and any proposed amendments thereto as may be approved by the Assembly in accordance with paragraph (b)
(3) Proposals for amendment to a draft constitution under subsection (2) shall be considered and the draft Constitution published in such manner as may be prescribed by or under an Act of Parliament.
(4) The Interim Independent Electoral Commission shall, not later than ninety days from the date of publication of a draft Constitution pursuant to subsection (2), hold a referendum as may be prescribed by or under an Act of Parliament to give the people of Kenya the opportunity to ratify the draft Constitution.
(5) The following provisions shall apply with respect to a referendum on a draft Constitution
(a) section 43 shall apply with necessary modification with respect to the referendum.
(b) the draft Constitution shall be ratified if-
(i) More than fifty per cent of the valid votes cast are for ratification; and
(ii) At least twenty-five per cent of the votes cast in at least five of the eight provinces are for ratification.
(6) If a draft Constitution is ratified pursuant to subsection (5) (b), the president shall, not later than fourteen days from the date of the publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette.
Authorities considered
The Petitioners relied on the following authorities:
(i) Taib V. Minister of Local Government & 4 others (2008) KLR 433 where the main issue revolved around the Ministers (of Local Government)power to revoke a nomination of a councilor and whether notification of revocation through Kenya Gazette was proper when personal service was provided for. It was held that the Ministers’ breach of statutory requirements was improper and fatal to the action.
(ii) Chemelil Sisal Estate Ltd. V. Makongi Ltd. (1967) E.A 166 where failure to obtain mandatory consent of the land Board in a land transaction voided the transaction.
(iii) Criminal Appeal No. 119 of 2004 Gerald Macharia Githuka V Rep where failure to produce an accused person before Court within the period provided in the Constitution was fatal to the charge.
(iv) HCCC no. 82 of 2004 Njoya & Others V Attorney General & Others – this is the celebrated case that recognized the primordial power of the people to replace the constitution through a Referendum. It can be said that Section 47 A of the constitution resulted therefrom.
(v) Hc Misc. Application No. 890 of 2004 Very Right Rev. Dr. Jesse Kamau & Others V. The Attorney General & Another where the High Court found section 66 of the constitution providing for Kadhis’s courts to be unconstitutional
The Issues calling for answers
The petitioners drew what they called:
“The Questions for the Decision of the Interim Independent Constitution Dispute Resolution Court” as follows:
a) Was it necessary or not for parliament to define what the CoE was to take as amounting to a contentious issue in the Review Act?
b) Did the absence of the definition of what amounts to a contentious issue prejudice the petitioners in letting the CoE to define such a central term? If so how? If not why?
c) Was the CoE justified in identifying the contentious issues to be i) The Executive and Legislature, ii) Devolution of Powers and iii) Bringing the constitution into effect? If so why? If not why?
d) Did the review organs comply with the parent Act, the Review Act? If so how? If not how and to what extent?
e) Were the issues raised by the petitioners weighty enough to qualify to be classified as contentious issues? If so which ones and why? If not why?
f) With the judgment in the Kadhis Court Case, can Kenyas still include in a draft a clause similar to Section 66 of the current constitution and section 4 of the Kadhis Court Act? If so how and why? If not why?
g) Looking at the whole of the review process, were the constitutional as well as the natural basic rights of the petitioners breached by the review organs or the government? If not why? If yes how and what are the implications of that breach?
h) Does this court have jurisdiction (sic) to redress the petitioners as prayed?”
These issues can be compressed as follows:
i) Power and mandate of CoE
ii) Whether that power and mandate was exercised within the law.
iii) What is the place of the Kadhi Court in view of the Judgment in High Court Misc. Application No. 89 of 2004?
iv) Jurisdiction of the Court.
Power and Mandate of CoE and whether the same was exercised within the law
We have in the course of this judgement set out in full the provisions of Section 47A of the Constitution and relevant parts of the Review Act. We have also set out the complaints and grievances of the Petitioners and the Respondents responses thereto. In sum, the Petitioners complain that CoE executed its mandate inadequately and tendentiously especially because the CoE identified only 3 issues as contentious, namely
i) The Executive and Legislature
ii) Devolution of power and
iii) Transitional clauses
Since petitioners had identified in their memoranda other “contentious issues” as Kadhis’ courts, land, electoral system and affirmative action, these should have been included. The forlorn and loud cry is therefore that the end product of the document to be presented at the Referendum on 4.8.2010 in wrong, inadequate and has failed the popular consultation test.
The CoE in response believes that it adhered to the law in full. It produced a document” The Preliminary Report of the Committee of Expert on Constitutional Review issued on the Publication of the Harmonized Draft Constitution” issued on 17.11.2009 where the various stages taken by the CoE are set out.
We have perused the said Report. Chapters 1, 2 and 3 deal with an Executive Summary: History and Context of the constitution making in Kenya and Methodology and Public Participation. Set out in those Chapters are detailed steps taken to comply with the relevant provisions of the Review Act.
Mr. Nowrojee referred the Court to Chapter 4 “Challenges to the Constitutional Review Process,” where it is stated:
“Thirdly the statutory methodology for the identification of contentious issue to some extent qualifies and defines the meaning of the term “contentious “in a manner that is not as broad as the popular understanding of the word. In particular section 23(a):23(b);29 and 30 of the constitutive Act, require that in identifying contentious issues the Committee shall draw upon the views of the people of Kenya as collected by the CKRC: study the two CKRC Drafts(the Ghai Draft and Bomas); and the PNC (Wako Draft ) and “Shall Identify” areas where these drafts agree and where they are not agreed (areas in contention).
The CoE does not therefore have an unfettered discretion in determining what is contentious or not. This has both advantages and disadvantages. The advantages lies in the fact that the statutory methodology establishes minimums for identifying what is contentious and thus limits the scope of what can be classified as such which theoretically should enable focus on and resolution of the presumably limited area of “contention”. Furthermore the statutory methodology enables the current review process to build on gains of the earlier review processes in respect to reaching areas of agreement; inherent in this methodology is therefore an assumption that if there agreement on principle in the CKRC and |Bomas Drafts and PNC, consistent with the views submitted to the CKRC, there is agreement and consensus on the issue.
The disadvantage of the statutory methodology and obligation to identify areas of agreement in the draft is that it does not take cognizance of the fact that areas of contention emerged largely after the views of the people have been collected. That since there was never an openly stated articulation of what was actually contentious, they were never truly surfaced and guessing what they are, does not necessarily surface them; in fact it is politically expedient for those opposed to reform to identify a plethora of other areas of contention. Worse still in fact several political actors deliberately misrepresented areas of agreement between the various drafts as not being agreed during the 2005 Referendum campaigns. Most importantly the statutory qualifications on “contentious” and the popular understanding of the term had become an area of contestation. So that whereas land is generally an area of concern in Kenya and indeed historically a source of conflict there is generally agreement between the views of the people as to how it should be treated thus the chapter remains the same in all three drafts and is consistent with the views submitted to the CKRC. Yet due to lack of clarity about the statutory methodology many critics of the CoE have faulted it for not labeling the chapter as “contentious”, even despite being made aware of the fact that when the CoE did call for written memoranda, the memoranda and presentations made to it, did not differ from the provisions of the Land Chapter and therefore did not suggest a change in the view of the people on this issue.
And even more complicated variation of this problem has occurred in relation to the issue of the Kadhis’ Courts. Again the principle is accepted and provided for in the three drafts and so cannot be classified as an area of contention within the statutory requirement that such areas be issued that are “not agreed upon within the existing draft constitution”. These provisions in the three drafts are consistent with the views as submitted to the CKRC. A constituency within the religious sector wants this issue now declared “contentious” as it is an issue of concern to them. Given the statutory methodology, 3 See sections 30 and 31 of the Constitution of Kenya Review Act (2008) question arises as to whether or not the CoE has the legal mandate and power to declare as “Contentious” a principle on which there is agreement between the drafts. The CoE has therefore faced the challenge of effectively articulating to the religious sector that it does understand their concerns, has heard them and is attempting to respond to them but there is a statutory framework and methodology within which the CoE operates and therefore it does not enjoy an unfettered discretion in identifying issues that are agreed upon and not……
The Court was also referred to Chapter 5 ‘Agreed Issues in the Harmonized Draft Constitution.” We need not set it out here; suffice to say that the matters upon which the Petitioners complain are squarely addressed.
The CoE posits, therefore, that it adhered to the entire criteria provided in law. It solicited and received from the public written memoranda and presentations on contentious issues. It also carried out consultations, studies, researches and evaluations and made recommendation”. In addition, it published the “Road to the Review of the Constitutions’ in the national newspapers on 18.6.2009 which set out the details of the review process and the time-lines thereof. It then published, again in national newspapers on 19.6.2009 “Invitation for Proposals on Contentious Issues.”
The phrase “contentious issues” is not defined in the Review Act. It appears in various provisions of the Act; Section 23 on “Functions of the Committee of Experts” is set out in full in this opinion. A core mandate of the CoE was to identify contentious issues.
It is instructive that the functions of the CoE and the dealings with contentious issues were not from the abstract but were extracted from a particular context, the context being the various previous efforts on constitution making – the efforts of the Constitution of Kenya Review Commission (CKRC) under the framework of the Constitution of Kenya Review Act, 1999. The CKRC travelled the length and breadth of the country soliciting views on the kind of constitution the people wanted. CKRC produced a preliminary Draft Constitution, which was presented to the Constituent Assembly at the Bomas of Kenya Constitutional Conference. “The Bomas Draft” was borne of this effort. Others were “the Zero Draft”; “the Kilifi Draft”, “the Wako Draft…”
However, all the efforts aborted because there was no consensus on certain contentious items hence the reason why the CoE was required to study all previous documents and identify issues upon which consensus had been reached and issues upon which consensus had not been reached. The CoE was also legally mandated to articulate the respective merits and demerits of proposed options for resolving the contentious issues and make recommendations to the Parliamentary Select Committee on the resolution of these issues for the good of the people of Kenya. The emerging consensus would then result in preparation of a harmonized draft constitution for presentation to the National Assembly.
It will therefore be seen that the core mandate of the CoE was to identify issues in contention, achieve consensus and pave way for a widely acceptable document (Constitution). The underlying message being that the process (review of the constitution) did not fail again.
To the CoE was granted a power or discretion to define “contentious issues” and like every discretion, this had to be exercised carefully, reasonably and in accordance with the law. That is to say that the discretion was not absolute. The CoE was availed a power to identify contentious issues but no precise unambiguous formula was provided for doing so. The nearest Parliament came to offering a direction or formula is perhaps in the provision of a set of principles to guide the review process together with certain reference documents to draw information or inspiration from. Contrast this with the very specific scientific formula in the rules that guided the Bomas Constitutional Conference.
As stated CoE appear to have been ill-equipped thus leading to abuse of discretion. But Parliament appears to have been alive to this danger by donating discretion with one hand but providing certain guidelines and checks with the other. Thus, we see in Section 29 of the Review Act the following guidelines:
29 “in the performance of its functions under this Act, the committee of Experts shall draw upon the views and materials collected or prepared by the various organs of review under the expired Act, including but not limited to-
a) The summary of the views of Kenyan’s collected and collated by the Commission;
b) the various draft constitutions prepared by the Commission and the Constitutional Conference,
c) the Proposed New Constitution, 2005;
d) documents reflecting political agreement on critical constitutional questions, such as the document commonly known as the Naivasha Accord;
e) analytical and academic studies commissioned or undertaken by the Commission or the Constitutional Conference”.
It will therefore be seen that, though a rough guide, the net was wide enough to catch the fish and did not tie down the CoE since reference materials were varied and opinions come from far and wide.
As has already been seen, further guidelines will be found in the objects and principles for the constitution review process at Section 4 of the Review Act (which we have already set out in full in this judgement).
Section 5 of the Review Act created organs of review being:
“a) the Committee of Experts;
b) the Parliamentary Select Committee;
c) the National Assembly; and
d) the Referendum”.
Looking at the various provisions of the Review Act, it becomes obvious that these organs of review (Section 5) were created specifically as checks on each other, ie each organ as a check against the organ preceding it. But central to the organs (“the nerve centre”) was the CoE wherein was to be found legal requirements for various professional disciplines and expertise.
The conglomeration of experts and disciplines was to create the necessary confidence in use and application of “discretion” which would satisfy the ordinary person, the man in “the Pangani bus”. Any abuse of discretion would be checked by the Parliamentary Select Committee, which would in turn be checked by the National Assembly. If there were fault – lines in this seemingly water- tight check system – the people, through their sovereign power would act as a final check at a Referendum. But so sensitive and important was this matter in the eyes of Parliament that further checks were devised – a Reference Group was created by Section 31 of the Review Act comprising of 30 representatives chosen by the interest groups. The composition reads like a cross section of Kenya’s active society and should ideally have occasioned a consensus on contentious issues. Let us see who they are:
“FOURTH SCHEDULE
Organizations to Choose Representatives to the Reference Group
Religious Sector:
Supreme Council of Kenya Muslim (SUPKEM)
National Council of Churches of Kenya (NCCK)
Kenya Episcopal Conference (KEC)
Evangelical Alliance of Kenya (EAK)
Hindu Council of Kenya (HCK)
Seventh Day Adventist (SDA)
Organization of Africa Instituted Churches (OAIC)
National Muslim Leadership Forum (NAMLEF)
African Independent Pentecoastal Church of Africa (AIPCA)
Women Organizations:
Maendeleo ya Wanawake Organization (MYWO)
National Council of Women of Kenya (NCWK)
Federation Women Lawyers (FIDA)
Private Sector:
Central Organization of Trade Unions (COTU)
Kenya Private Sector Alliance (KEPSA)
Kenya National Union of Teachers (KNUT)
Federation of Kenya Employers (FKE)
Professional Group
Association of Professional Societies in East Africa (APSEA)
Law Society of Kenya (LSK)
Kenya Magistrate and Judges Association (KMJA)
Kenya Medical Association (KMA)
Special Interest
United Disabled Persons of Kenya (UDPK)
Kenya Alliance for the Advancement of the Right of the Child (KAARC)
The Cradle – The Children’s Foundation.
Kenya Society for the Blind.
Civil Society
NGO Council.
National Convention Executive Council (NCEC).
Youth Agenda
Kenya Human Rights Commission
Others
Media Council of Kenya
Association of Local Government Authorities of Kenya
So that, in identifying contentious issues and even in determining the content of the draft constitution, the CoE had discretion. But this latitude was susceptible to checks and balances at each and every stage of the review process. Hence, the discretion was not arbitrary. Checks and balances ensured that there was no room for error and an insulation of the process from abuse. And yet the Petitioners in this case cry that despite all these checks and counterchecks their grievances were ignored and they ask the court for intervention.
If it is shown that the organs of review have discharged their mandate in accordance with the law and in good faith would the court still clothe itself of a jurisdiction and intervene?
And there is also the question begging of an urgent answer: the Petitioners who felt aggrieved by the CoE had recourse to the PSC failure to which there was opportunity to lobby the National Assembly where, presumably, their representatives sit. Not to be downplayed is the role of the Reference Group which as has been seen comprised a cross-section of shades of opinion: religious groups; the media; human rights organizations; private sector; professional groups; civil society organizations; women organizations; special interest groups.
Blacks Law Dictionary (9th Edition) defines “discretion” “administrative discretion and “judicial discretion” as discretion.
1. Wise conduct and management; cautious discernment; prudence.
2. Individual judgment; the power of free decision-making”
3. “Administrative discretion; a public officials or agency’s power to exercise judgment in the discharge of its duties’
4. Judicial discretion; The exercise of judgement by a judge or court based on what is fair in the circumstances and guided by the rules and principles of law; a courts power to act or not to act when a litigant is not entitled to demand the act as a matter of right – also termed legal discretion.
In this petition, what clearly comes to the fore is the exercise of statutory discretion which discretion ideally should be used to promote the policies and objects of the governing Act which in our case is the Review Act. This view was echoed by Lord Reid in Padfield vs Minister of Agriculture, Fisheries and Food & Others (1968) 2 WLR 924, wherein he stated;
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”
Further, in In R vs Commission of for Racial Equality ex. Hillingdon L.B.C (1982) Q.B 276, Griffith L.J had this to say:
Now it goes without saying that parliament can never be taken to have intended to give any statutory body a power to act in bad faith or a power to abuse its powers. When the court says it will intervene if the particular body acted in bad faith, it is but another way of saying that the power was not being exercised within the scope of the statutory authority given by parliament. Of course, it is often a difficult matter to determine the precise extent of the power given by the statute particularly where it is a discretionary power and it is with this consideration that the courts have been much occupied in the many decisions that have developed our administrative law since the last war.
Therefore, it will be seen that when something is to be done within the discretion of an authority, then that something is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. In addition, it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.
Thus the reasonable exercise of a power or right to act in an official capacity involves the idea of choice, of an exercise of the will, so that abuse of discretion would involve more than a difference in opinion but a demonstration of perversity of will, a defiance of good judgment, or bias.
In light of the standards set herein and on application to the conduct of the CoE in exercising its discretion on the determination of contentious issues, can it then be said that there was a case of abuse of discretion? We do not agree with that view.
Mr. Pheroze Nowrojee, the counsel for the 2nd respondent demonstrated to us how the CoE exercised the discretion it had been statutorily granted and undoubtedly to our mind, it was a reasonable exercise of the said discretion which is in tandem with the ideals and purpose of the Review Act. Mere differences in opinion on contentious issues, their definitions, and the fact that they never made it to the draft constitution should not be taken to mean that the CoE exercised the powers conferred on it in a capricious manner. Consequently, we do not agree with the petitioners on this point at all.
ii) What is the place of the Kadhi Court in view of the judgement in High Court Misc. Application No. 890 of 2004.
The High Court of Kenya (Nyamu, JA, and Wendo and Emukule, JJ) on 25.5.2010 delivered a judgment in High Court Misc. application No. 890 of 2004 Very Rt. Rev. Dr. Jesse Kamau & 25 others Vs The Hon The Attorney General & Anotherwhere it was held inter alia that there was a conflict of constitutional provisions and that Section 66 of the Constitution (which establishes Kadhis Courts) was inconsistent with Sections 65 and 82 of the Constitution. The Petitioner’s have asked us to apply this judgment in expunging from the proposed constitution provisions that establish Kadhi Courts.
We have already expressed ourselves on this aspect of the case. As stated by Counsel for the attorney-General there is an appeal filed in the Court of Appeal. The last has therefore not been said or heard on that matter as the Court of Appeal will in the fullness of time express itself on the same.
That judgment is in any event not binding on us or any other Judge as witnessed by the holding of Ibrahim, J in Mombasa HC Petition No. 669 of 2009 (supra), a Ruling delivered on 31.5.2010 where the Judge criticized the said judgment as not meeting known legal standards of constitutional interpretation.
iii) Jurisdiction
Section 60A of the Constitution has donated to this Court original jurisdiction to hear and determine disputes relating to the constitutional review process.
We held in IICDRC Petition No.1 of 2010 Priscilla N. Kanyua vs The Hon the attorney General & another that we had jurisdiction on matters of constitutional review process. The matters complained of in this Petition are matters arising from the constitutional review process and we therefore have jurisdiction.
Findings:
On the authorities cited it will be seen that:-
i. In Taib v Minster of Local Government
the issue to be determined was on whether failure to serve a notice which was statutorily provided for voided the Ministers action. This has no application in this Petition as has been seen the CoE has carried out duties as provided in law.
ii. In Chemelili Sisal Ltd
There was statutory requirement for consent of land board. This case has no application at all.
iii. The Issue in Macharia Githuku was failure by the police to produce the accused to Court within the period provided in the Constitution. That failure was fatal to the charge.
Again this has not application as the CoE has carried out its duties.
iv. The primordial power of the people recognized in the in the Njoya Case has direct application here. The people of Kenya have waited long enough to exercise a right to review or refuse to review the Constitution. Nobody should come in their way – let them do so on Wednesday 4th August, 2010.
We therefore find that:
a) The CoE has exercised its power and mandate in accordance with the law.
b) The petitioners grievances are misconceived.
c) There is no valid reason advanced for prayers to postpone the referendum.
d) The mandatory orders sought are not available and cannot be granted.
Conclusions:
1) The suit against the 3rd Respondent is struck out.
2) The suit against the 1st and 2nd Respondent is dismissed.
Costs:
There cannot be any doubt that the Petitioners misadvisably travelled a long journey through the Courts and finally to this Court to seek justice. They misconceivably perceived a breach of their rights. They were public spirited and we think that the proper order is that there shall be no order as to costs.
DELIVERED at NAIROBI this 2nd day of August, 2010.
V. K MAVISI
PRESIDING JUDGE
S. N. MUKUNYA
JUDGE
S. ole KANTAI
JUDGE
In the presence of:
1. Mr. Tindika holding brief for Mr. Ngibuini for Petitioners.
2. Ms. Wanjiku Mbiyu for 1st Respondent.
3. Mr. P. Nowrojee for 2nd Respondent.
4. Mr. Anthony Njoroge for 3rd Respondent.
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| 1. | Nusu v National Assembly & 5 others; Law Society of Kenya (Interested Party) (Constitutional Petition E009 of 2023) [2024] KEHC 3949 (KLR) (22 April 2024) (Ruling) Mentioned | 1 citation |