Trusted Society of Human Rights Alliance v Matemo & 3 others (Petition 12 of 2013) [2015] KESC 26 (KLR) (17 June 2015) (Ruling)
Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR
Neutral citation:
[2015] KESC 26 (KLR)
Republic of Kenya
Petition 12 of 2013
MK Ibrahim & N Ndungu, SCJJ
June 17, 2015
Between
Trusted Society of Human Rights Alliance
Petitioner
and
Mumo Matemo
1st Respondent
The Attorney General
2nd Respondent
Minister for Justice & Constitutional Affairs
3rd Respondent
Director of Public Prosecution
4th Respondent
(Being an application by Katiba Institute to be enjoined in these proceedings as amicus curiae)
Ruling
A.introduction
1.This is a Notice of Motion dated 3rd March, 2015, filed by Katiba Institute seeking leave to be enjoined in the substantive appeal as amicus curiae. The application is supported by affidavit sworn by Christine Nkonge, the applicant’s litigation counsel.
Submissions Of The Parties
The Intended Amicus curiae/Applicant
2.Learned counsel for the applicant, Mr. Lempaa submitted that the applicant is an institution with expertise in constitution-making and design, and would therefore contribute to the resolution of the issue at hand. He urged that the applicant was non-partisan in the matter, and was only keen to aid the Court in interpreting and applying constitutional principles on the issues arising, by proposing a comparative approach. Mr. Lempaa submitted that the applicant had no special interest in the matter, personal or commercial, and its sole motivation was fidelity to the law and the Constitution of Kenya, 2010.
3.In its grounds in support of the application, the applicant stated that it would assist the Court by providing the relevant historical context, constitutional design and principles relating to institutional comity, judicial and quasi-judicial processes, integrity, transparency and accountability, and comparative foreign law on the issues entailed.
4We were urged to admit the applicant as amicus curiae because of the public interest nature of the appeal before the Court. According to counsel, it was the first time Chapter 6 of the Constitution was coming up for consideration before the Court. Drawing from the supporting affidavit of Christine Nkonge, counsel submitted that the learning of the applicant’s founder and director, Prof. Yash Pal Ghai, an expert in constitutional law, would benefit the Court in the resolution of this matter.
5It was submitted that Katiba Institute’s admission as amicus in this case would outweigh any possible prejudice to any of the parties. It was thus deponed in paragraph 10 of the applicant’s affidavit:
6.On the issue of delay, counsel submitted that no prejudice would be occasioned to any party as a result of the time taken in filing application.
The 1st Respondent
7.The 1st respondent contested the application by way of a replying affidavit sworn on 16th March, 2015 and learned counsel Mr. Kilonzo, urged that the principles for admission of amicus curiae had already been set by this Court in Trusted Society of Human Rights Alliance v. Mumo Matemo& 5 Others, Sup. Ct. Pet. No. 12 of 2013, and that the applicant’s case in this instance, fell short of the prescribed standard.
8Learned counsel questioned the value of the applicant’s amicus intervention, given that the 5th and 6th respondents had already been admitted as amici right from the trial Court. He urged that the intended amicus brief had no issues not already covered by the two amici on record.
9Mr. Kilonzo submitted that a Court ought to consider its limited resources, including time, in determining the number of amici it should admit or engage. Counsel urged that an extension of the issues for determination by amici ought to be avoided, since matters before the Court must be expedited and finalized. Counsel urged the Court, in determining this matter, to consider the fact that this was a second and final appeal.
The Petitioner
10.Learned counsel for the petitioner, Mr. Mwongela submitted that his client had not taken a partisan position in this matter even though he had made reference to the High Court decision; and thus his case for amicus status was not compromised.
11.The 2nd and 3rd Respondents11 Learned counsel for the 2nd and 3rd respondents, Mr. Muiruri submitted that the draft submissions appended to the amicus brief portrayed a partial inclination by the applicant. He urged further, that it was apparent from the said brief, that the applicant would bring no new element to the issues of law. Counsel urged the Court to focus its attention on the live dispute between the real parties, in this adversarial system, in such a manner that the same is not overshadowed by a multiplicity of amici.
The 4th Respondent
12.Learned counsel for the 4th respondent, Mr. Okello submitted that the intended amicus was merely seeking to introduce a historical perspective to the cause, and had indeed taken a position in support of the High Court’s stand.
13.1st and 2nd Amici curiae 5th and 6th Respondents13 It is noted that the 1st and 2nd amici curiae were erroneously listed as the 5th and 6th respondents. The effect of describing an amicus curiae as a respondent is that, by default, such amicus gains the status of a respondent. Courts should always be mindful of party description, so as to protect the interests of the parties to the dispute, from a multiplicity of stakes crowding the litigation- forum. So in the instance matter, we amend the status of current amicus, to refer to 1st and 2nd amici curiae. At the hearing of the appeal, this Court will also regulate amicus interventions, to ensure that the amici do not assign to themselves the substance of the claims in the cause.
14.Learned counsel for the 1st and 2nd amici curiae, Mr. Nderitu urged the Court to reject the submissions that an amicus curiae ought not to take a particular position in a matter. He submitted that an amicus expresses an opinion, whether or not it would favour one side or the other. Counsel urged that as a matter of fact, a determination made by a Court assisted by amicus, would still favour one side. Counsel submitted that the disqualification of an amicus should only be for lack of adherence to relevant legal principles.
15.Counsel urged that the admission of the applicant as amicus curiae would serve the objects of the Court, as outlined in the Constitution and the Supreme Court Act.
16.The Applicant in Response16 Learned counsel, Mr. Waikwa for the applicant, submitted that there was no evidence to show that the instant application had occasioned any delay in the proceedings; for the main cause was yet to be cleared for hearing.
17.On the issue of partisanship, Mr. Waikwa submitted that this has two aspects: partisanship based on factual evidence; and partisanship based on legal interpretation. He urged that the category of partisanship raised by the 1st respondent was one of legal interpretation; and that all the authorities cited by parties beckoned legal, as opposed to factual evaluation. He submitted that the exclusion of the applicant in Moses Kiarie Kuria & 2 others v. Ahmed Isaack Hassan & Another, Petition No. 3 of 2013, 2013 eKLR from amicus status, was based on the applicant’s proposed factual appraisal, which is distinguishable from the current instance. Counsel urged the Court to allow the application.
Issue For Determination
18.The single issue for determination in this application is whether Katiba Institute should be admitted to these proceedings as amicus curiae.
Analysis
Establishing Principles
19.This Court has previously made pronouncements regarding the participation of parties in proceedings as amici curiae. This matter, however, presents an opportunity to consolidate the principles previously developed on the subject, drawing on earlier decisions, as well as on comparative jurisprudence.
20.In this regard, certain specific questions emerge, calling for this Court’s attention, as follows:
21.The Constitution of Kenya, 2010, by express terms, requires Courts to “develop the law to the extent that it does not give effect to a right or fundamental freedom” Art. 203a. This is the very foundation for well -informed inputs before the Court, which inherently, justifies the admission of amici curiae. We have a duty to ensure that our decisions enhance the right of access to justice, as well as open up positive lines of development in jurisprudence, to serve the judicial system within the terms of the Constitution.
22The Constitution further bestows upon all State Organs and all public officers the duty to respond to the needs of vulnerable groups within the society Art. 213. This obligation, in the context of an enlarged locus in the enforcement of fundamental rights and freedoms Article 222, and of the enforcement of the Constitution itself Article 258, enjoins that a person seeking to canvass the values and principles under the Constitution, by applying legal expertise, materials, or information available, is a potential friend of the Court. As observed by the Constitutional Court of South Africa in the case of Children's Institute v. Presiding Officer of the Children's Court, District of Krugersdorp and Others CCT 69/12 2012:
23Rule 3 of the Supreme Court Rules, 2012 defines “amicus curiae” as “a person who is not party to a suit, but has been allowed by the Court to appear as a friend of the Court.” Rule 541 vests the Court with the power to appoint amicus curiae in any proceedings, while sub-rule 2 sets out the criteria:Rule 25 on the other hand outlines the admission of interested parties into the Court’s proceedings.25.1A person may at any time in any proceedings before the Court apply for leave to be joined as an interested party.2An application under this rule shall include−aa description of the interested party;bany prejudice that the interested party would suffer if the intervention was denied; andc.the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties.” emphasis supplied.
24.We have in several cases, considered the role of amicus and outlined the difference between amici curiae and interveners. This guideline has been followed by other Courts in our jurisdiction, in cases such as Judicial Service Commission v. Speaker of the National Assembly and Another, High Court Petition No. 518 of 2013 2013eKLR; and Justice Philip K. Tunoi & Another v. Judicial Service Commission & 2 Others, High Court Petition No. 244 of 2014 2014eKLR. We elaborated the difference between interveners and amici curiae in the application to be enjoined as amicus by the Law Society of Kenya, in this matter, - Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others, Sup. Ct. Pet. No. 12 of 2013 - at paragraphs 17 and 18 of the ruling:
25We have observed the trend of applications by persons seeking amicus status, to aid this Court in the execution of its duty. We approbate this inclination, as the transformative cast of the Constitution invites due diligence on the part of all persons. Judicial authority flows from the people as the final arbiter, with the capacity to affect any settled precedent. It justifies any person with special legal expertise, in matters coming up before this Court, coming as a friend of the Court. Rule 54 beckons the invitation of persons as amici curiae and also recognizes the need to allow, from time to time, and on a case-by-case basis, the appearance of legal or technical experts and advocates in proceedings before us. The dichotomy of interest and expertise shreds any doubt as to the role of a party in any proceedings before us. In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Sup. Ct. Appl. No. 2 of 2012, we admitted certain organizations to appear as interested parties representing the interest of the public and went further to admit those with certain expertise to appear, including Charles Kanjama who was admitted as Advocate under this rule to enrich the legal submissions in the proceedings before the Court. The expanded forum by our Constitution is a testament that we continue to witness various forms of legal mobilization in pursuit of a constitutionally engineered rights-based jurisprudence.
26.However, this opening ought to be regulated, in order to protect the rights of the parties to the causes before us. Amicus briefs ought to be carefully appraised, so as not to interfere with the causes of the parties, or the bounds of jurisdiction. While the Court may admit a motion to appear in any proceedings as amicus, there is the risk of the real interest of the amicus threatening the position of the original suitors, whose rights and obligations stand to be upset by the outcome of the appeal.
27This question has also been considered by the United States Supreme Court in the case of Florida v. Georgia, 58 U.S. 17 How. 478 1854. In that case, the Attorney - General of the United States sought to be heard in a case, on appeal, where the interests of the Federation were likely to be compromised. The Court considered the familiar practice of hearing the Attorney - General on behalf of the State, in suits between individuals involving matters of public interest; and if recognized that the Federation would be adversely affected by the decision, if it was accorded no opportunity to be heard. The Court acceded to the Attorney - General’s request, granting the motion. There were, however, dissenting opinions by Justices Curtis and McLean which proceeded on the basis that the Supreme Court’s jurisdiction had been compromised by the majority decision.
28What should be this Court’s position on amicus briefs inviting factual appraisal? The legitimacy of amicus briefs flows from their engagement with points of law.
29Cases involving matters of general public interest may occasion the Court inviting certain parties, such as the Attorney - General, to participate in proceedings as amicus curiae. The special role of the Attorney - General as amicus, on behalf of the State, was considered in the case of Moses Kiarie Kuria & 2 others v. Ahmed Isaack Hassan & Another, Petition No. 3 of 2013, 2013 eKLR . In that case we contemplated various governing scenarios in admitting the Attorney - General’s amicus brief. Indeed the position of the Attorney - General as the custodian of the legal instruments of the Executive Branch, and as advisor in matters of public interest cannot be challenged. We also considered the position of the Attorney - General in the performance of the Executive’s role vis-à-vis the operationalization of the Constitution; and the nature of this Court’s discretion to regulate the extent of the Attorney - General’s participation in the proceedings. The Attorney - General, in a proper case, therefore may be admitted to take part in proceedings as amicus curiae, where great public interest is involved. The Office of the Attorney General Act No. 49 of 2012 reinforces the centrality of this office in relation to the facilitation, promotion and monitoring the rule of law, the protection of human rights and democracy in Kenya S. 52. Section 7 of this Act gives a statutory right of audience in proceedings of any suit or inquiry in matters involving public interest and those concerning the legislature, Judiciary and any other independent department or agency in government. It is to be observed, however, that despite the Attorney General’s extraordinary role, certain exceptions, may be made by a Court in considering an application by the Attorney General seeking audience before it.
30.A comparative examination of amicus jurisprudence from other apex Courts is relevant in illuminating the practice of amicus briefs, in other jurisdictions.
31The Supreme Court of Minnesota in the case of State v. Finley, 242Minn. 288 1954 rejected an amicus brief that suggested by implication, that an accused person was guilty. The Court delimited the remit of amicus in the following terms:
32.The Supreme Court of Ireland had occasion to examine the role and place of amicus curiae in appellate proceedings in the case of I v. Minister for Justice Equality and Law Reform, 2004 1 ILRM 27; 2003 IESC 38. The Court allowed the United Nations High Commissioner for Refugees to appear as amicus in a case involving an issue referred to the Supreme Court by the High Court, as involving great public interest. The Court adopted the definition of amicus curiae approved in the case of United States Tobacco Company v. Minister for Consumer Affairs and Others 83 ALR 79, which comes from Jowitt’s Dictionary of English Law:
33.The amicus practice in South Africa has been to allow persons and organisations or entities that may not have a direct legal interest in a matter, to participate, where sufficient interest has been established. This follows the terms of the Rules of the Constitutional Court R. 10. The duty of amicus to the Court, in that country, was succinctly stated by the Constitutional Court in Re: Certain Amicus Curiae Applications; Minister of Health and Others v. Treatment Action Campaign and Others, CCT 8/02 2002 at paragraph 5 of the Judgement, in the following terms:
34Justice Sachs in the case of Government of the Republic of South Africa and Others v. Grootboom and Others 2001 1 SA 46 CC, noted the special merits brought by advocates who participated in the case as amici.
35.Although there are no formal rules governing the role of amicus curiae in Uganda, the issue has been the subject of legal scholarship. M. Ssekaana and S. Ssekaana in their book, Civil Procedure and Practice in Uganda 2010 at page 50 have considered the role of amicus curiae as follows:
36The evolution of the amicus role in Kenya is distinguishable from the position in jurisdictions such as the United States, Australia, South Africa and Ireland. This distinction surfaces in the light of the decision of the Supreme Court of Ireland, in I v. Minister for Justice, Equality and Law Reform op.cit.:
37.While such jurisdictions require amicus to have bona fide interest in the matter, our practice is that amicus ought to come into the proceedings on a foundation of neutrality; and by virtue of the express terms of the Constitution, parties with an interest in the proceedings are accommodated in the capacity of interveners .
38.Amicus participation is a matter of privilege, rather than of right. And “intervention” in a case, as provided under Rule 25 of the Supreme Court Rules, 2012 allows parties with sufficient interest in the matter to apply to be enjoined as interveners or interested parties. This avenue is set apart from that of amicus. As opposed to amicus, interveners have an interest in the res of the suit, as to be affected by the resulting Judgement of the Court. Amicus curiae on the other hand, are “advisors to the Court”, and not to the parties, and are in no way bound by the resulting Judgement, except by way of precedent. Amici curiae cannot be perceived as an extension of the Court; and they are not to advance any party’s case, and ought not to extend their participation to the realm of interveners in any legal proceedings. The interposition of amici in judicial proceedings is terminated when they have put forward the points of law outlined in their amici brief.
39There is, however, an exception in amicus interventions, in the case of advisory-opinion proceedings before this Court, as signalled in Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No.2 of 2011. The absence of a live controversy in such proceedings opens a window for the amicus to steer the Court, by specific proposals, towards a definite legal position. The ultimate decision, however, lies with the Court.
40.In the High Court case, Justice Phillip K. Tunoi & Another v. Judicial ServiceCommission & 2 Othersop. cit at para.30, Mr. Justice Odunga had aptly observed, in relation to amicus status in Kenya today, thus:
41.From our perceptions in the instant matter, we would set out certain guidelines in relation to the role of amicus curiae:
46.The 1st respondent urged that the intended amicus curiae has taken a position of bias, by supporting the appeal. The applicant, on the other hand, has denied the 1st respondent’s assertions of partiality. Learned counsel for the 2nd and 3rd respondents, Mr. Muiruri submits that the persuasive authorities cited by the applicant had already been placed before the Court and, in the circumstances, the applicant was introducing no new material to aid the Court in the resolution of the case before it. He is also of the view that the applicant is partisan, and should not be admitted to amicus status, except upon conditions. Learned counsel, Mr. Okello for the 4th respondent, agrees with Mr. Muiruri, and submits that the applicant’s amicus brief brings no additional value to the proceedings. But Mr. Nderitu, learned counsel for the 1st and 2nd amici curiae, submits that the intended amicus curiae only presents its legal interpretation of the decision of the High Court, rather than delve into matters of fact. Mr. Waikwa, learned counsel for the applicant, disputes the submissions on partisanship, and urges that a dichotomy be drawn between factual and legal partisanship. He urges that the applicant’s submissions are purely legal, and therefore sustainable.
47.Impartiality is a central tenet in the conduct of judicial proceedings. As counsellor before the Court, an amicus curiae should not exhibit partiality towards any party’s cause; otherwise some party would be prejudiced. Given the role of amicus as friend of the Court, impartiality is required of an amicus curiae. The role of an amicus is to aid the Court so it may reach a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty. In an adversarial legal system such as ours, impartiality on the part of the Court, and all its agencies such as amici curiae, must withstand all compromise. The Court, in an adversarial system, is but an umpire, not to be seen to descend into the arena of conflict in the cause before it see Muriu & Others v. R. 1955 22 EACA 417. An amicus curiae has to stay aloof, assisting the Court, without being seen to take sides.
48.In the amicus brief attached to this application, the applicant gives at paragraphs 59-65 an analysis of the decisions of the two earlier superior Courts. It is this analysis that Mr. Waikwa urges to be an impartial legal interpretation. Do these paragraphs disclose any impartiality? Justice from the Court has to be assessed from the eyes of the ordinary litigant. When determining whether amicus is partisan, the test should be that of the ordinary litigant, rather than of a legal expert examining the dichotomy between factual matter and legal matter. How will an ordinary litigant perceive the submissions of Katiba Institute, as presented in paragraphs 59 to 65 of the proposed draft submissions? The Court is of the opinion that the applicant has scrutinized the decisions of the superior Courts, and taken the stand that the Court of Appeal erred in upsetting the finding of the High Court. A perception of bias beckons, when the ordinary litigant reads these submissions. At paragraph 65 of the amicus brief, the applicant states:
49.The only course open to an amicus is to aid the Court in arriving at a determination based on the law, and/or upon uncontroverted, scientific and verifiable facts. Whether the superior Courts erred in arriving at their determination is to be left to the value judgement of the Court, as the ultimate decision - maker, following a conscientious evaluation of the parties’ respective cases. It is not for amicus to suggest to the Court whether a decision was wrong or right, nor to advise on which resolution to arrive at. The pursuit of a particular outcome is reserved to the parties to the controversy, including the interested parties or interveners. Consequently, we agree with the 1st respondent that the applicant has demonstrated partiality, and does not satisfy the threshold of admission as amicus in these proceedings.
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JUNE, 2015M.K IBRAHIM JUSTICE OF THE SUPREME COURTN.S. NDUNGU JUSTICE OF THE SUPREME COURT I certify that this is a true Copy of the originalRegistrarSupreme Court Of Kenya