Judicial Innovation Or Schizophrenia? A Survey Of Emerging Kenyan Jurisprudence

MAIN THEME: MAKING AND BREAKING THE LAW: JUSTICE IN THE WAKE OF DISOBEDIENCE AND JUDICIAL COWARDICE

JUDICIAL INNOVATION OR SCHIZOPHRENIA? A SURVEY OF EMERGING KENYAN JURISPRUDENCE

PRESENTATION OUTLINE

By

PROF. PLO – LUMUMBA, LL.D, CPS (K), MKIM DIRECTOR/CHIEF EXECUTIVE & SECRETARY, KENYA SCHOOL OF LAW BOAR

PAPER PRESENTED AT THE LAW SOCIETY OF KENYA ANNUAL CONFERENCE AT LEISURE LODGE BEACH & GOLF RESORT, MOMBASA, HELD 14TH -15TH DAY OF AUGUST 2014 (14TH AUGUST 2014 AT 10.30AM)

Caveat: This is not an academic Paper. It is an outline of a presentation made to Legal Practitioners to provoke debate on trending Legal Issues 14TH – 15TH AUGUST, 2014 BRIEF PROFILE OF THE SPEAKER Prof. PLO – Lumumba is currently the Director and Chief Executive Officer of the Kenya School of Law.  He is a Professor of Public Law and Founding Dean, Kabarak University School of Law.   He has lectured law at the University of Nairobi, the United States International University (Africa), Widener University USA (Nairobi Summer School). He is an Advocate of the High Courts of Kenya and Tanzania.  He is a holder of Bachelor of Laws  and  Master  of  Laws  degrees  from  the  University  of  Nairobi  and  a  LL.D  from  the University of Ghent, Belgium.  He is Certified Public Secretary CPS (K) and a Member of the Kenya Institute of Management (MKIM). He has been trained on Humans Rights at the Institute of Advanced Legal Studies University of London in England and at the Raoul Wallenberg Institute of the University of Lund in Sweden and on International Humanitarian Law in Geneva, Switzerland. He is a renowned legal practitioner.   He is a former Secretary of the Constitution of Kenya Review   Commission   and   former   Director   of   the   defunct   Kenya   Anti-Corruption Commission, (KACC). He is also the Founder of the PLO – Lumumba Foundation (a Philanthropy Organization); founding Trustee of the African Institute for Leaders and Leadership (AILL) and founding Chairman of the Association of the Citizens Against Corruption (ACAC). He was recognized by the Kenya-USA Association for the Martin Luther King Jnr., Leadership Award in 1996 and was the recipient of the 2008 Martin Luther King Africa Salute to Greatness Award by the Martin Luther King Jr. Africa Foundation.   He has also been included in the Marquis Who’s Who in the World and is the Distinguished Mwalimu Nyerere Lecturer for 2014.

1.   Introduction

As has been succinctly stated by the Hon. Justice (Prof.) Jackton B. Ojwang’ What  is  special  as  regards  the  Judiciary  as  the bearer of  the  people’s  mandate is that it is  the  primary and ultimate arbiter, when the operations of the several public bodies run into conflict; it is the dominant interpreter not only of the totality of the Constitution, but also of all other laws applying in the land… Notable as a central theme of the Constitution constantly falling within the judicial mandate is its longest chapter, on the Bill of Rights.  The Bill of Rights indeed, is the main bond in the Constitution that creates the integrality of the judicial function and the processes of governance. The current Constitution was promulgated against the backdrop of widespread public concern over the performance of the Judiciary over the years.   The people of Kenya aspired for an independent, efficient and impartial Judiciary. The outcome in this regard was the transitional provision in Section 23 of the Sixth Schedule of the Constitution which provides that all Judges and Magistrates, who were in office on the effective date of the Constitution (27th   August, 2010) be vetted on their suitability to continue to serve in the Judiciary. The Judges and Magistrates Vetting Board, was therefore established as a result of the Vetting of Judges and Magistrates Act, 2011, which was passed by Parliament to create the necessary institutional framework and guidelines for the vetting of Judges and Magistrates. Judges and Magistrates appointed after the promulgation of the Constitution were appointed after vetting by the Judicial Service Commission in accordance with the Constitution. To its credit, the ‘reforming’ Judiciary has presided over a number of cases touching on diverse areas such as human rights, environment and land, election petitions and other areas such as the Attorney General’s engagement in ‘extra Governmental’ cases. In addition, the Judiciary has demonstrated a new attitude towards the requirement for locus standi in institution of public interest litigation cases. This attitude shift is exemplified by the increasing involvement of the Law Society of Kenya (LSK) in public interest litigation (PIL) and other public spirited persons such as Okiya Omtatah Okoiti, Aluoch Polo Aluochier and Charles Omanga. In this short article we sample a few cases in our attempt to answer the question whether episodic innovation and bravery demonstrated in a number of judgments is undermined by what presents The decision of the Court in the 2010 case of Priscilla Nyokabi Kanyua v Attorney General and the Interim Independent Electoral Commission6  marked a major shift on the issue of “legal standing  in  public  interest  cases”.  In  this  case  Ms.  Priscilla  Nyokabi  Kanyua  acting  on instructions of Kituo cha Sheria’s Board of Directors, which authorized Kituo’s Advocates to represent the prisoners, filed the case on behalf of the inmates. After her letter dated 20th  April 2010, as Kituo cha Sheria’s Executive Director addressed to the Chairman of the Interim Independent Electoral Commission demanding that prisoners be registered was not acted upon by the Interim Independent Electoral Commission. She sought a declaration that prisoners should be allowed to vote in the Referendum on the Proposed Draft Constitution of Kenya.  The Court in granting the prayers sought held that: …That the Interim Independent Electoral Commission do gazette the prisons as polling stations and that they facilitate the registration of all eligible inmates within 21 days to enable those who wish to vote in a referendum to do so without any hindrance. That the Attorney General and the necessary Authorities do facilitate the accessibility of prisons and the prisoners’ identification documents to enable the Interim Independent Electoral Commission to register those inmates who wish to do so in the time specified… Although there have been a few other judgments delivered  in relation to standing,  giving standing to a wide range of individuals, such as Okiya Omtatah Okoiti,8 Charle Omanga,9 Isaac Aluoch Polo Aluochier,10  and also to the Law Society of Kenya11  the judgment in the Priscilla Nyokabi case remains relatively the most influential judgment as far as public interest litigation is concerned. This is mainly because of the strength of the language used by the Court while delivering the judgment. The pronouncement of the Court seems to suggest that it is possible to initiate public interest litigation without founding the same strictly on the provisions of Articles 22 and 258 of the Constitution. This fact was illustrated by the Court when it quoted an extract from the case of Albert Ruturi, JK Wanyela & Kenya Bankers’ Association v The Minister of Finance & Attorney General and Central Bank of Kenya –which was a pre-Constitution 2010 decision on locus standi in which the Court expressly stated that: If an authority which is expected to move to protect the Constitution drags its feet, any person acting in good faith may approach the Court to seek judicial intervention to ensure that the sanctity of the Constitution of Kenya is protected and not violated. We state with a firm conviction, that as a part of reasonable, fair and just procedure to uphold the Constitutional guarantees, the right of access to justice entails a liberal approach to the question of ‘locus standi’. Another area that has seen the development of legal standing is the Anglo Leasing type cases. The Anglo Leasing cases are a total of eighteen (18) cases involving Government Contracts entered into by the Government of the Republic of Kenya for the supply of various passport printing system and security contracts. Anglo Leasing type case filed in Kenyan Courts was precipitated by the judgment of the High Court of Justice Queens Bench (Claim No. 2006 Folio 881) which ordered the Government of Kenya to  pay Universal  Satspace  (North  America).  Universal  Satspace  (North  America)  in September 2006 sued the Government over claims of $12,366,816 (Sh1.4 billion) at the Justice Queen's Bench Division Commercial Court in England. The English court entered judgment against the Government of Kenya after its defence and counterclaim was struck out. On May 15, 2014 President Uhuru Kenyatta authorized the payment of the controversial Anglo Leasing  debt.  He  ordered  Treasury to  pay Sh1.43  billion  (US$16.4  million).  The  National Treasury paid out Sh1.4 billion to lawyers representing First Mercantile and Universal Satspace Limited,  a  firm  connected to  one  Anura  Perera,  after losing to  him  in  a  London  court  in controversial circumstances. The payment was pushed through on the orders of President Uhuru Kenyatta. Perera immediately made an additional claim of Sh3.5 billion. These actions prompted the Law Society of Kenya to go to Court to seek conservatory orders staying the decision of the Government  of  Kenya  to  pay  Universal  Satspace  (North  America)  LLC,  in  pursuance  of judgment in High Court of Justice Queens Bench Claim No. 2006 Folio 881 in Law Society of Kenya v Cabinet Secretary Treasury & another.12 The Judge in refusing the application, pronounced himself thus: The protection and promotion of human rights creates legal obligations on the State to ensure everyone enjoys rights. In the realm of civil and political rights this has been actively protected as  opposed  to  economic social  and  cultural  rights.  The protection  of  economic,  social  and cultural rights together with the principle of non-discrimination puts focus on the most excluded, discriminated and marginalized groups in society. This assertion has been judicially enunciated in John Kabui Mwai and 3 Others v Kenya National Examinations Council & Otherswhere the High Court was called upon to determine whether a Government policy restricting the number of pupils from private Primary Schools who could join National High Schools was discriminatory and in violation of the right to education. The Court held that: The inclusion of Economic, Social and Cultural rights in the Constitution is aimed at advancing the Socio-economic needs of the people of Kenya, including those who are poor, in order to uplift their human dignity. The protection of these rights is an indication of the fact that the Constitution’s transformative agenda looks beyond merely guaranteeing abstract equality. There is a commitment to transform Kenya from a society based on socio-economic deprivation to one based on equal and equitable distribution of resources… Further, in Mathew Okwanda V Minister of Health and Medical Services & 3 Others14  while quoting excerpts from the earlier decision of Anarita Karimi Njeru v Attorney General15 established the principle, that in matters concerning enforcement of fundamental  rights and freedoms, a petitioner must plead with particularity that of which he complaints, the provision said to be infringed and the manner in which the particular right is violated. This principle is correct. The issue of progressive realization of economic and social rights has also been dealt with in a number of cases in Kenya. In the case of Mitu-Bell Welfare Society v Attorney General & 2 others,17 Mumbi Ngugi J. observed that: The argument that socio-economic rights cannot be claimed at this point, two years after the promulgation of the Constitution also ignores the fact that no provision of the Constitution is intended to wait until the state feels it is ready to meet its constitutional obligations. Article 21 and 43 require that there should be ‘progressive realization’ of socio-economic rights, implying that the state must begin to take steps, and I might add be seen to take steps, towards realization of these rights.... Its obligation requires that it assists the Court by showing if, and how, it is addressing or intends to address the rights of citizens to the attainment of the social economic rights, and what policies, if any, it has put in place to ensure that the rights are realized progressively, and how the petitioners in this case fit into its policies and plans. Similarly, it has been held in Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others18 (hereinafter the Muthurwa Case) that … it is now an accepted cardinal principle of constitutional interpretation that the entire Constitution must be read as an integrated whole, and that no one particular provision destroys the other but each sustains the other. This is what has come to be known as the rule of harmony; rule of completeness and exhaustiveness and the rule of paramountancy of a written Constitution.19 In the case of Okiya Omtatah Okoiti V Attorney General & 2 Others,20 the gravamen of the case was that a play known as Shackles of Doom to be performed by Butere Girls High School at the 2013 National Drama Festival that were to be held in Mombasa from 16th to 24th April 2012 was banned. The Applicant argued that this case concerned the freedom of speech and expression protected under Article 33 of the Constitution and the only remedy the Court could issue to secure that right and freedom of expression for the public was to issue the mandatory injunctions His argument was that between August 27, 2010 and August 2011, both Uhuru and Ruto held double positions as Cabinet Ministers and officials of political parties contrary to Article 77(2) of the Constitution. The Article provides that any appointed State officer shall not hold office in a political party.  The  petitioner  argued  that  the  two  should  have  then  been  disciplined  for contravening the law. And under Articles 75(2) and (3), the disciplinary action would have ensured they were not cleared to run for the seats of President and Deputy President. He has actually asked the court to declare that the two should not be holding State offices. Though the petition was against Uhuru and Ruto in their private capacities, the Attorney General joined the suit to defend them. On October 20 2013, Aluochier filed an application seeking determination by the court on whether the AG could defend the two leaders in a private case. He made a strong argument that under Article 156(6) of the Constitution, the AG can only represent the Government and the public in civil proceedings and not individuals sued in their private capacities. He noted that there was no provision under the Office of the Attorney-General Act22 allowing him to represent individuals in Court: He could only join the case as an ‘amicus curiae’ and not in any other capacity. His purported representation of Uhuru and Ruto should be declared unlawful and his appointment as legal counsel be struck off the record. Said the petitioner. However, the AG, through Senior Deputy Chief Litigation Counsel filed an objection to the application, saying he could represent the two respondents. The AG argued that under Article 156(6) of the Constitution, the Attorney-General has a wide mandate to promote, protect and uphold the rule of law and defend the public interest. It is within his discretion to determine when and to whom to offer his legal services in cases of public interest.  She argued that where any proceedings may affect the rights, property or profits of Government, then he had the power to intervene as a counsel, even where a public officer had been sued in a private capacity. Since the issues raised in the petition revolve around constitutionalism, rule of law and public interest, the private and official capacities of Uhuru and Ruto were fused and the AG could properly defend them. But presiding Judge Isaac Lenaola dismissed the objection by the AG: The respondents are presently part of Government but the actions complained of really turn on their past… I do not see how those actions can be termed as actions of the National Government to attract representation in Court by the Attorney General. In the Kenyan context, the two levels of Government; national and devolved, form the Government of Kenya and the Constitution deliberately limited the role of the Attorney General to legal proceedings involving the National Government, whereas the devolved governments are left to seek their own legal representatives. But it must be noted that his advice as opposed to representation is to “the Government” in the wider context as defined above. Ms Munyi has argued that there is “public interest” involved in the present petition and since the AG is enjoined to uphold the public interest, then he should be allowed to appear and defend the respondents.  I disagree. The question of “advise”, “legal representation”   and   “public   interest”   cannot   be   lumped   together   because   the Constitution has demarcated them as such.  Whereas the AG is enjoined to uphold the public interest in the discharge of his mandate, the Constitution specifically limited his role as “advocate” and one cannot properly import public interest as a basis for legal representation. d.   Actio Popularis in Abstracto An actio popularis was an action in Roman penal law brought by a member of the public in the interest of public order.The action exists in some modern legal systems. For example, in Spain, an actio popularis was accepted by Judge Garzón in June 1996 which charged that certain Argentine military officers had committed crimes of genocide and terrorism. The actions were brought by the Free Union of Lawyers, Izquierda Unida and the Madrid Argentine Association for Human Rights: private citizens and organizations who were not themselves the victims of the crimes  in  the  action  and  who  proceeded  without  the  sanction  of  the  public  prosecuting authorities. In India, public interest litigation has been used to guarantee several human rights, including the right to health, livelihood, free and compulsory primary education, unpolluted environment, shelter, clean drinking water, privacy, legal aid, speedy trial, and several rights of under-trials, convicts and prisoners. Having found that the National Assembly had no mandate to make resolutions nullifying the Gazette Notices issued by the SRC, and in light of our other findings in relation to the issues for determination in this matter, we make orders and issue declarations as follows: ‘That the National Assembly exceeded its mandate by purporting to annul the Gazette Notices issued by the SRC on 1st March, 2013. Its decision was therefore both unlawful and unconstitutional. That in view of the provisions of Article 230 and 260 of the Constitution of Kenya 2010, the National Assembly Remuneration Act Cap 5 is unconstitutional.’ Further, in Okiya Omtatah Okoiti & another v Attorney General & 7 others28  which was a Preliminary Objection raising one point of law; that the 1st  Respondent, the Attorney General, cannot represent an independent Commission, the 3rd  Respondent (the National Police Service Commission) and a body corporate, the Public Procurement Administrative Review Board, the 8th Respondent, in these or any other Court proceedings. The Judge held that: I should also state that the Preliminary Objection was generally narrowly argued by the parties and the scope of the issue was thus limited but I should say this in passing; there is no bar to Commissions in the nature of their mandates to hire counsel when funds and circumstances allow. In fact the better and viable option would be for them to hire in- house counsel who can adequately represent them in Court when and if necessary. I am aware for example that the Ethics and Anti-Corruption Commission has routinely done that. But the Attorney-General also has a mandate to represent the national interest in Court proceedings and where Commissions are minded to seek his representation, I see no bar either. To hold otherwise would be impractical and illogical given the structure of our Constitution. But where for example in specific cases the Attorney-General has to defend a claim by a Commission, for obvious reasons he cannot act and one cannot look at the office in the same way a law firm is looked at in the circumstances. In the end, and given the narrow yet important issue raised, I find no merit in the objection and will overrule it. The Preliminary Objection was thus dismissed. Mr. Isaac Aluochier has also been active in the public interest arena. A sampling of some of his efforts is therefore appropriate. In Isaac Aluoch Polo Aluochier V Independent Electoral And Boundaries Commission (IEBC) and 19 others29  where the petitioner filed his petition on 5th February, 2013, exactly 27 days before the national elections for the Presidency, the Legislature and the Counties under a new constitutional set-up. He was contesting the validity of the nominations and approvals made by the Independent Electoral and Boundaries Commission (IEBC) in respect of candidature for the office of President. The petitioner questioned the actions of the sponsoring political parties in their initial nominations of candidates who would, at the time, be classified as State Officers in the terms of Article 260 of the Constitution of Kenya, 2010. The Supreme Court ruled that it lacked jurisdiction to hear the matter and dismissed the application. In  the  case  of  Isaac  Aluoch  Polo  Aluochier  V  Independent  Electoral  and  Boundaries Commission  & 19  Others30,  the  Applicant  applied  to  be  enjoined  in  the  2013  Presidential Election Petition at the Supreme Court, but the Supreme Court rejected the application stating that: After giving this application due consideration, we have come to the conclusion that it cannot be allowed at this stage. While we have a commitment to hear and determine the three petitions on the basis of which the Court has been moved, time is of the essence – and judicial notice is to be taken of this fact. In our assessment of the present setting for the resolution of the issues before us, the belated application now being brought can only cause unnecessary delay. Accordingly, we hereby disallow the application. Another active public interest litigator is Mr Charles Omanga. In Charles Omanga & another v Independent Electoral & Boundaries Commission & another & another31the Applicant sought the following declarations: (a)   A declaration that the provisions of Section 43(5) of the Election Act, 2011 requiring the resignation of State officers seven (7) months prior to the elections while at the same time excluding other categories of State or public officers is discriminatory, accords an unfair advantage to some, breaches the requirement for fairness, equality and proportionality and therefore unconstitutional.