Whether the High Court had supervisory jurisdiction with respect to decisions of the Judges and Magistrates Vetting Board

Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others
Petition 13A of 2013
(As Consolidated with Petition 14 of 2013 & Petition 15 of 2013)
Supreme Court of Kenya at Nairobi
W M Mutunga CJ & P, K H Rawal DCJ & VP, P K Tunoi, J B Ojwang, S C Wanjala & N S Njoki, SC JJ
November 5, 2014

Reported by Beryl A Ikamari & Karen Mwende

Download the Decision

Issues

  1. The scope and effect of the provisions of section 23(2) of the Sixth Schedule to the Constitution of Kenya, 2010 and section 22(3) of the Vetting of Judges and Magistrates Act, No 2 of 2011.
  2. Whether the effect of section 23(2) of the Sixth Schedule to the Constitution of Kenya, 2010 and section 22(3) of the Vetting of Judges and Magistrates Act, No 2 of 2011 was to oust the supervisory jurisdiction of the High Court.

Constitutional Law-interpretation of the Constitution-constitutional ouster clause-applicable principles of interpretation -import of section 23(2) of the Sixth Schedule to the Constitution of Kenya 2010- whether section 23(2) of the Sixth Schedule to the Constitution of Kenya 2010 ousted the High Court's supervisory jurisdiction-Constitution of Kenya 2010; article 1, 23, 10, 159, 259 & section 23(2) of the Sixth Schedule to the Constitution and of the Vetting of Judges and Magistrates Act, No 2 of 2011; sections 5 & 22(3).

Section 23 of the Sixth Schedule to the Constitution of Kenya 2010
23. (1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.
(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.

Constitution of Kenya 2010, article 259(1);
259. (1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.

Vetting of Judges and Magistrates Act, No 2 of 2011, section 22;
22. Review
(1) A judge or magistrate who has undergone the vetting process and is dissatisfied with the determination of the Board may request for a review by the same panel within seven days of being informed of the final determination under section 21(1).
(2) The Board shall not grant a request for review under this section unless the request is based—
(a) on the discovery of a new and important matter which was not within the knowledge of, or could not be produced by the Judge or Magistrate at the time the determination or finding sought to be reviewed was made, provided that such lack of knowledge on the part of the Judge or Magistrate was not due to lack of due diligence; or
(b) on some mistake or error apparent on the face of the record.
(3) The decision by the Board under this section shall be final.

Held

  1. Ouster clauses entailed provisions in the Constitution or statute which took away or purported to take away the jurisdiction of a competent court of law. They would deny the litigant any judicial assistance in the relevant matter and also deny the courts power to make any arbitral contribution with respect to that matter.
  2. Ouster clauses could be adopted for certain practical and procedural reasons which included protecting the integrity of the relevant body by separating it from the formal legal process, ensuring finality and preventing unnecessary litigation or judicial proceedings.
  3. The main anxiety with ouster clauses was that they had a tendency to extend immunity to negative governmental action. Courts were yet to find a rational and legitimate principle of interpretation. The relevant comparative judicial practice with respect to ouster clauses included the following findings and approaches;
    1. In Nigeria, section 3 of the Chieftaincy Disputes (Preclusion of Courts) Ordinance No. 30 of 1948, ousted the jurisdiction of the Court from matters relating to Chieftaincy. On a challenge to the validity of the appointment of a chief, the Nigerian Supreme Court held that pursuant to that clause, the court had no jurisdiction to hear the matter. (Salami Olaniyi v Gbadamosi Aroyehun and others (1991) 1 SCNJ 25). However, the same Supreme Court made a finding that the ouster clause on chieftaincy matters could not limit the court’s jurisdiction to determine civil rights and obligations and constitutional matters.
    2. In Barbados, the High Court held that an ouster clause could be usurped if there were strong and compelling reasons such as a breach of fundamental rights and freedoms and breaches of natural justice. (Austin v Attorney-General, Case No 1982 of 2003.)
    3. In the Endell Thomas case (Endell Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113 (Privy Council)), the Court found that a constitutional ouster clause would not preclude the Court from declaring actions that were outside of the relevant body’s functions null and void.
    4. In the Matter of the Application by John Rives for Leave to apply for Judicial Review, Supreme Court of Belize Action No. 299 of 1991, the Supreme Court of Belize remarked that an ouster clause in the Constitution could not take precedence over another provision in the Constitution which sought to protect and preserve the fundamental rights of the individual.
    5. The Court of Appeal of Fiji, on a determination on whether decisions of the National Land Commission could be reviewed despite the existence of an ouster clause, held that the constitutional ouster clause was clear and the court would have no jurisdiction over such matters. (Nava v Native Land Commission (1994) FJCA 52.)
    6. The Australian High Court, on an action for the remedy of certiorari in relation to the decisions of an administrative board which were by statute required to be final and conclusive without a right of appeal, found that the statutory provisions did not preclude the availability of the remedy of certiorari. (Hockney v Yelland (1984) HCA, 72; (1984) 157 CLR 1243). A similar decision was made by the same court in Houssein v Department of Industry & Technology (1982) HCA, 2; (1982) 148 CLR 88 and Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2.
    7. The general position in Australia was that Parliament had the popular mandate to enact ouster clauses and such enactments would have to be unequivocal. Generally, an ouster clause would not protect a decision which was made in situations of a jurisdictional error from being declared invalid. (Craig v South Australia [1995] 184 CLR.) Examples of jurisdictional errors offered in the decision included an administrative tribunal identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material making erroneous findings, or reaching a mistaken conclusion.
    8. As per the Hickman principles, in Australia, an ouster clause would oust the court’s jurisdiction over a challenge to a given body’s decision where three conditions were met, namely; the decision made had to be a bona fide attempt to exercise the relevant body’s power; secondly, it had to relate to the subject matter of the legislation; and thirdly, it had to bear a real relationship to the power given to the body. (R v Hickman Ex parte Fox and Clinton (1945) 70 CLR 598.)
    9. The Indian Supreme Court, on the question of ouster clauses, found that it was necessary to ascertain the legislative intent to exclude the court’s jurisdiction over a given matter. The Court, in interpreting an ouster clause, would have to consider the underlying justification for excluding the Court’s jurisdiction. Where a justification was ascertainable, the justification was not open to question but it was necessary to consider whether the statute, providing for the ouster clause, provided for a suitable remedy. The absence of such a remedy would mean that the court’s jurisdiction was not ousted. (State of A P v Manjeti Laxmi Kantu Rao.)
    10. In England, the Court of Appeal held that although the words of a statute were strong enough to exclude an appeal, such words did not exclude judicial review. (R v Medical Appeal Tribunal, ex p. Gilmore [1957] 1 QB 574.)
    11. The House of Lords, in England concluded that ouster clauses only related to valid determinations. Ultra vires decisions were void ab initio. It also established the principle of interpretation to the effect that statutory ouster clauses were to be interpreted in a manner likely to preserve the jurisdiction of the courts. (Anisminic v Foreign Compensation Commission [1969] 2 A C 147.)
  4. As per the provisions of section 23(1) of the Sixth Schedule to the Constitution of Kenya 2010, the purpose of the vetting process was to ensure that Judges and Magistrates continued to serve in accordance with the national values and principles of good governance and in accordance with the requirements of article 259 of the Constitution. Among the provisions of article to 259 was the requirement that the Constitution would be interpreted in a manner that promoted its purposes, values and principles and advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights.
  5. In conducting the vetting of Judges and Magistrates, the Vetting Board was to be guided by the Constitution and to give effect to the fundamental rights and freedoms enshrined in the Constitution. Section 5 of the Vetting of Judges and Magistrates Act, No 2 of 2011 provided that the guiding principles of the Vetting Board included judicial independence, natural justice and international best practices.
  6. An ouster clause could confer exclusive merit-issues jurisdiction with respect to a particular question, upon a non-judicial agency, on grounds of the unique elements of that question, the particular needs of the agency and the priorities that had been publicly acknowledged.
  7. The vetting process was intended to align the judicial arm of government to the new constitutional regime. It was a transitional process intended to allow for a smooth transition from the old constitutional order to the new constitutional order.
  8. In terms of section 23(2) of the Sixth Schedule to the Constitution of Kenya 2010, the Superior Courts had no jurisdiction to review the process or outcome attendant upon the operation of the Judges and Magistrates Vetting Board.

The concurring opinion of Mutunga, CJ & President

  1. The decisions of the Judges and Magistrates Vetting Board were not subject to review by the High Court, was adopted. (The dissenting opinion of A K Murgor & F Sichale, JJ A in Law Society of Kenya v Centre for Human Rights and Democracy & 13 others, Civil Appeal No 308 of 2012, Court of Appeal at Nairobi).
  2. The transitional provisions were placed in the Schedules because their applicability would be for a limited period of time and for purposes of vetting, the supervisory jurisdiction of the High Court had been suspended to allow for the implementation of the Constitution. (The dissenting opinion of A K Murgor & F Sichale, JJ A in Law Society of Kenya v Centre for Human Rights and Democracy & 13 others, Civil Appeal No 308 of 2012, Court of Appeal at Nairobi).
  3. The Constitution was to be interpreted in a holistic manner and the country's history had to be taken into account. A stereotypical recourse to interpretative rules of common law, statutes or foreign cases could subvert the requisite approaches to interpretation of the Constitution.
  4. In interpreting the Constitution, Courts had to take cognizance of Kenya's unique historical context. The locus classicus case on statutory ouster, Anisminic case, would not apply in interpreting section 23(2) of the Constitution due to Kenya's unique historical circumstances. (Anisminic v Foreign Compensation Commission [1969] 2 AC 157).
  5. During the process of formulating the Constitution, it became clear that public confidence in the Judiciary was severely eroded and the public wanted all sitting Judges and Magistrates who were in office on or before August 27, 2010, to retire. However, the compromise reached at was that all sitting Judges and Magistrates would be vetted.
  6. The ouster clause in section 23(2) of the Sixth Schedule to the Constitution was to be construed strictly as a transitional clause in the context of Kenya's unique historical background.
  7. No provision of the Constitution could be unconstitutional. Although the Constitution did not obliterate judicial review, the fundamental principles of judicial review could be suspended as a transitional matter.
  8. The purpose of the theory of constitutional interpretation was to rescue the weaknesses of comparative jurisprudence while at the same time building on its strengths. Although certain jurisdictions such as India and Germany had perceived judicial review as an immutable structure of their Constitutions, those jurisdictions did not share the uniqueness of Kenya's Constitution.
  9. Question on whether those jurisdictions had Constitutions with provisions such as articles 1, 23, 159 and 259 which emphasized on sovereignty of the people, article 10 on the national values and principles of good governance, which applied to the interpretation of Kenya's Constitution needed to be asked. If the answer to these questions was negative, common law doctrines found in other jurisdictions, foreign cases and foreign Constitutions were to be interpreted in a manner that reflected Kenya's modern Constitution and unique conditions and needs.

The concurring opinion of Rawal, DCJ & Vice-President

  1. A broad, purposive and fused interpretation of the Constitution was requisite. The vetting of Judges and Magistrates was one of the constitutional precursors to the enforcement of Chapter Six and Chapter Ten of the Constitution and it was the intended mechanism for purposes of the judicial fulfilment of article 10 and 159 of the Constitution of Kenya 2010.
  2. The vetting process was a filter which ensured that, in accordance with the dictates article 73 of the Constitution, the authority entrusted to Judges and Magistrates as State Officers would be exercised in a manner that enhanced public confidence and the integrity of the office and the institution of the Judiciary.
  3. The founding objective of the vetting process was a psychic alignment of the Judiciary to the dictates of the Constitution both in institutional and leadership capacities. The transformation or realignment was to be guaranteed primarily through the process of vetting to ensure the commitment of Judges and Magistrates in office, to constitutional imperatives in values and principles.
  4. Section 23(2) of the Sixth Schedule to the Constitution ousted the jurisdiction of the High Court or any other Court to review the decisions of the Judges and Magistrates Vetting Board and also excluded the powers of the High Court to exercise original jurisdiction in claims brought as a consequence of the decisions of the Vetting Board.
  5. The vetting process as conceptualized was an act in institutional accountability and ultimately, it was an aspect of the rebirth of a State guided by norms of constitutionalism. The past malaise in the Judiciary had necessitated the conception of the mechanism of vetting for purposes of restoring public confidence in the Judiciary. The vetting process was premised upon a call by Kenyans to regularize the delivery of justice by the Courts.
  6. Transitions bore unsettling demands and the present case was not an exception. The vetting process was temporary in nature and had its foundations in the people's will.

The concurring opinion of Njoki Ndung’u, SCJ

  1. Constitutional transition was one of the contentious issues placed before the Committee of Experts. It was clear that a transition from the old to the new constitutional order ordained and approved by Kenyans was imperative.
  2. With respect to transition within the Judiciary two submissions were considered. The first one proposed a complete overhaul in which all judicial officers were to reapply in order to continue serving. The second option entailed vetting in order to bring the Judiciary into conformity with the Constitution of Kenya 2010. The vetting process was adopted and as a consequence section 23 of the Sixth Schedule to the Constitution of Kenya 2010 was enacted.
  3. Various institutions and public officers were subject to different modes of transition. Honouring the demands of transition was a reaffirmation of the adoption, by those institutions, of their constitutional character and a reaffirmation of the Kenyan people's sovereign and inalienable right to determine their form of governance.
  4. The mischief in the societal and political system was remedied in the new constitutional order. The shift from the old dispensation to the new one required a bridge which was availed in the form of transitional provisions.
  5. The wording of section 23 of the Sixth Schedule to the Constitution did not leave doubt as to the intention of the Constitution to hasten the process of vetting and to restrict it to a single body established in accordance with the Constitution.
  6. It was the duty of every Judge and Magistrate serving on the effective date, to participate in the patriotic duty of conforming to the Constitution. The vetting process was a constitutional-transitional imperative, akin to a national duty upon every judicial officer to pave way for judicial realignment and reformulation.

Petition allowed.



Kenya Law
Case Updates Issue 32/2014
Case Summaries

CONSTITUTIONAL LAW Supreme Court sets aside Court of Appeal decision that suspended switch off date for analogue - digital migration broadcasting

Communications Commission of Kenya & 5 others v Royal Media Services & 5 others
Petition No.14 of 2014
(Consolidated with Petitions Nos. 14A, 14B & 14C of 2014)
Supreme Court of Kenya at Nairobi
W M Mutunga; CJ, K H Rawal; VP & DCJ, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu,SCJJ
September 29, 2014
Reported by Teddy Musiga & Getrude Serem

Download the Decision

Brief facts:
The instant petition had its origins at the High court. At the High Court, the petitioners (now respondents) sought orders to compel the respondents (now appellants) to issue them with Broadcasting Signal Distribution (BSD) licenses & frequencies & an order restraining those respondents from switching off their analogue frequencies, broadcasting spectrums and broadcasting services pending the issuance of a BSD license. However, the trial judge dismissed the petition holding that the petitioners were not entitled to be issued with a BSD license merely on the basis of their established status or legitimate expectation on their part and further that the implementation of the digital migration was not a violation of the petitioners fundamental rights and also that their intellectual property rights had not been infringed.
Aggrieved by that decision, they appealed to the Court of Appeal who set aside the decision of the High court by holding that inter alia;

  1. The Communications Commission of Kenya was not the independent body contemplated by article 34(3) (b) & (5) of the Constitution and therefore could not grant the BSD licenses.
  2. The direction for the then respondents to air the appellants’ (now respondents’) Free to Air (FTA) programmes without their consent was a violation of the appellants’ intellectual property rights and was thus declared null and void.

Subsequent to the determination by the Court of Appeal, four petitions were filed at the Supreme Court by the appellants (Petitions Nos. 14, 4A, 14B & 14C of 2014) and were all consolidated into the instant petition

Issues:

  1. Whether Communications Commission of Kenya (CCK) as at the time (then) constituted was the regulatory body (regulating broad casting and other electronic media) envisaged under article 34(5) of the Constitution of Kenya, 2010.
  2. Whether CCK violated the intellectual property rights of the content producers (respondents) by authorising the 4th & 5th appellants to transmit the respondents’ broadcasts without the respondents’ consent.
  3. What is the scope of the “must-carry” rule? And whether the “must–carry” rule infringed upon the intellectual property rights of a content producer.
  4. Whether a case involving the violation of intellectual property rights could be addressed by a petition to enforce fundamental rights and freedoms.
  5. Whether legitimate expectation for the grant of Broadcasting Signal Distribution (BSD) license can arise on account of substantial/ massive investments in the broadcasting sector
  6. Whether or not there exist circumstances in which an award of Broadcasting Signal Distribution (BSD) license could be issued without a tendering process under the Public Procurement & Disposal Act

Media Law – freedom of the media – regulation of the media – licensing – Broadcasting Signal Distribution (BSD) licensing – role of the Communications Commission of Kenya (CCK) in BSD licensing - claim challenging the independence & constitutionality of CCK as regulatory body – Constitution of Kenya, 2010, article 34(3) & (5) Kenya Information & Communications Act, section 25(3)(e)

Intellectual Property Law - copyright – limitations to copyright – fair dealing – “must-carry rule” – scope of “must-carry” rule – whether the “must-carry” rule infringes on the intellectual property of a content producer – Copyright Act, section 26(1), section 29(a); Kenya Information & Communications Act, section 25(3)(e)Kenya Information & Communications (Broadcasting) Regulations, Regulations 14(2)(b) and 16(2)(a) .Read More...

Held:

  1. Article 34(3) of the Constitution of Kenya, 2010 guaranteed the freedom of establishment of broadcasting & other electronic media but subject to licensing procedures that were necessary to regulate the airwaves and other forms of signal distribution. Article 34(5) commanded Parliament to enact legislation for the establishment of a “body” that had to be independent of governmental, political and commercial control. However, such a body could not disengage from other players in public governance.
  2. The shield of independence could be attained in a number of ways. The main safeguard was the constitution and the law. Other safeguards in place to attain independence could range from the manner in which members of the said body were appointed, to the operational procedures of the body and even the composition of the body. However, none of those “other safeguards” could singly guarantee “independence”. It took a combination of those and the fortitude of the people who occupied office in the said body to attain independence.
  3. Under section 6 of the Media Council Act, one of the listed functions of the council was the setting of journalistic standards, ethical and professional standards, and the regulation and monitoring of compliance with those standards. Section 7 thereof on the composition required that the nominees had to reflect the interests of all sections of the society. Section 11 thereof provided that the Council had to be independent of control by Government, political or commercial interests.
  4. Section 5 of the Kenya Information & Communication Act described the Communications Commission of Kenya (CCK) as a licensing and regulatory body but made no mention of a “standard setting” function. Therefore, from the two statutes above, the body contemplated by article 34(5) of the Constitution was the Media Council of Kenya and not the successor to CCK.
  5. That notwithstanding, articles 34(3) & (5) of the Constitution could not be the basis for declaring CCK unconstitutional as there could to be no vacuum occasioned by the failure or delay on the part of the legislature. That was why all existing laws were given the leeway to continue operating, on condition that they were construed with necessary alterations, adaptations, qualifications and exceptions to bring them into conformity with the Constitution.
  6. At the time the Constitution came into force, CCK was the body mandated to license broadcasting and other electronic media. CCK had a lawful existence & its functions were not unconstitutional. Unless it was demonstrated that the legislation establishing CCK was incapable of being construed with the necessary alterations and exceptions, so as to bring it into conformity with the constitution, pending the three year legislative intervention, then it would have been improper in law and in principle to declare CCK unconstitutional.
  7. From the various agreements and letters between the parties, the 1st, 2nd and 3rd respondents had given the 4th & 5th appellants (Signet ltd & PANG ltd) consent to transmit their content.
  8. Under the “must-carry” rule, transmission frequencies for radio or television broadcasting and telecommunication were considered national resources for the public interest. That rule required cable television companies to carry locally-licensed television stations on their cable system. That obligation could only be imposed if the respective networks were the principal means of receiving radio and television channels for a significant number of end users of those networks. The rationale for the rule was to preserve the free circulation of information through access to the most important television channels such as national public television channels as well as the principal private television channels such as those owned by the 1st, 2nd & 3rd respondents.
  9. The appellants were not “re-broadcasting” the content of the 1st, 2nd & 3rd respondents because they were not broadcasting organizations, since they did not take financial and editorial responsibility for the selection and arrangement of, and investment in the transmitted content. That was to say, the appellants did not interfere with the broadcast-content of the 1st, 2nd and 3rd respondents. The content was delivered digitally without any interference from the signal distributors. As they were not rebroadcasting the content, therefore the appellants did not infringe on the intellectual property rights of the respondents.
  10. The exceptions on the law of copyright were conventionally referred to as fair dealing. Fair dealing was thus a defence against copyright infringement. What amounted to fair dealing depended on the facts of each case. Therefore the “must-carry” rule which required the appellants to carry the signals of the 1st, 2nd & 3rd respondents was by no means inconsistent with the requirement of fairness. Indeed it was clear that the appellants’ dealings with the 1st, 2nd and 3rd respondents did satisfy the “fair dealing” defence, and therefore did not infringe upon the copyrights of the 1st, 2nd and 3rd respondents.
  11. CCK did not infringe upon the 1st, 2nd & 3rd respondents intellectual property rights, in effecting the “must-carry” rule. That rule was essentially consistent with the terms of article 7 of the constitution which required the state to protect & promote diversity language in Kenya; article 10 which listed sustainable development as one of the national values & principles that bound persons & entities interpreting the constitution as well as article 11 which required to promote all forms of national and cultural expression through communication, information and mass media; and also article 35 which gave citizens access to information; and article 46 which protected the rights of consumers.
  12. The principle of constitutional avoidance entailed that a court could not determine a constitutional issue when such a matter could properly be decided on another basis. The 1st, 2nd & 3rd respondents claim in the High court, regarding infringement of intellectual property rights was a plain copyright – infringement claim, and it was not properly laid before that court as a constitutional issue. That was therefore not a proper question falling to the jurisdiction of the appellate court.
  13. CCK had exclusive powers under section 5(1) of the Kenya Information & Communications Act to issue broadcast licenses. Section 5B thereof guaranteed the independence of CCK in the performance of its functions. However the promises made to the respondents on account of their substantial investment in broadcast infrastructure, and upon which they claimed legitimate expectation for the grant of BSD licenses emanated from the Permanent Secretary, Ministry of Information, Communications & Technology. Under the Kenya Information & Communications Act, the Permanent Secretary had no role in the granting or cancellation of a BSD license or any other broadcast licenses. It was therefore unlawful for the Permanent Secretary to make such promises to the 1st and 2nd respondents.
  14. Although the Public Procurement Administrative Review Tribunal was not a court of law, the administrative proceedings (the appeal by National Signal Networks) that took place before it were judicial in nature. Section 112 of the Public Procurement and Disposal Act provided that a party could seek a review of the Tribunals decision at the High court within 14 days of the decision being rendered. In the instant case, the National Signals Network chose not to exercise their right to appeal against the tribunal’s decision at the High court. It was therefore fair to hold that the 1st & 2nd respondents were bound by the decision of the Tribunal regarding the BSD license. That finality gave rise to estoppel.
  15. Although CCK deployed the procurement procedure in the Public Procurement & Disposal Act, in granting a BSD license to the 5th appellant (Pan African Network Group Kenya, Limited) and denying the same to the 1st, 2nd & 3rd respondents, that decision was not informed by the imperatives of the values of the Kenyan Constitution as decreed in article 10. Given the fact that the subject matter of the license was a critical public resource and whose capitalization the Kenyan public had an interest in, CCK was bound to conduct its affairs more responsibly & transparently. Instead CCK chose to be hamstrung by the technicalities of procedure as if it were an ordinary procurement of goods and services. It was operating as if the constitution did not exist.
  16. The concurring judgment of H K Rawal, DCJ & Vice President

  17. Article 34 of the constitution of Kenya, 2010 was a whole package of rights, obligations and protection against undue intervention by the government in respect of the freedom of the media. It guaranteed institutional freedom against other individual freedoms enshrined in the constitution.
  18. Content provision and signal distribution were designed to be separate market segments. The separation of broadcasting and signal distribution by law and policy could be understood in the history of the media development in Kenya. During the analogue system, broadcasting and signal distribution were diagrammed into a single entity thus only allowing those of substantial means to share and disseminate ideas. Therefore, that separation was envisaged to allow other broadcasting entities capable of content development to distribute it through the medium of a common indiscriminate entity (the Broadcast Signal Distributors)
  19. The migration from the analogue to digital terrestrial television introduced the signal distributor whose only mandate was to provide a channel for the transmission of the broadcaster’s content to the public. The distributor did not develop but only distributed the content. As such the signal distributor required a broadcasting signal distribution (BSD) license to carry the content.
  20. The issuance of the license under article 34(3) of the Constitution of Kenya, 2010 was an administrative action that had to adhere to the prerequisites of articles 47 of the Constitution on the principles of administrative propriety. However issuance of the license was itself not a right under article 34 but a process to actualize that right and whose conduct was sanctioned by article 47 to the benefit of all who were subject to the process including the 1st, 2nd and 3rd respondents.
  21. The intention of the constitution through article 47 was to strengthen the procedural fairness expected when dealing with public administrative processes. Those processes had to be conducted in the sanctity of imperative principles such as expedition, efficiency, rule of law, reason and procedural fairness.
  22. The 1st, 2nd and 3rd respondents mistakenly asserted a guaranteed entitlement to a BSD license ignoring the required procedural processes to vindicate their grievances as provided by the constitution and the Act.

The orders of the court of appeal made on March 28, 2014 were set aside.
The declaration by the Court of Appeal annulling the issuance of a BSD license by the 1st appellant (CCK) to the 5th appellant (Pan African Network Group Ltd) was set aside.
The order by the court of appeal directing the independent regulator to issue a BSD license to the 1st, 2nd & 3rd respondents was set aside.
The 1st appellant, within 90 days to consider the merits of applications for BSD licenses to the respondents
The 1st appellant (CCK) was to ensure the BSD license awarded to 5th appellant (Pan African Network Group Ltd) was duly aligned to constitutional and statutory imperatives
The 1st appellant (CCK) in consultation with all parties to set the time lines for digital migration for the digital migration pending the international deadline of June 17, 2015

CONSTITUTIONAL LAW Courts have supervisory jurisdiction over impeachment proceedings

Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others [2014] eKLR
Civil Appeal (Election Petition) No. 21 Of 2014
Court of Appeal at Nyeri
A Visram, MK Koome, J Otieno-Odek, JJA
September 30, 2014
Reported by Nelson K. Tunoi and Marietta Gachegu

Download the Decision

Brief facts:
In 2013, the County Government of Embu (2nd Appellant) procured services of contractors to face lift the Embu County Stadium and advertised for tenders for supply and distribution of maize seeds to the farmers in the County. The County Assembly of Embu (6th Respondent), was dissatisfied with the refurbishment and the type and quality of maize seeds supplied to farmers. Consequently the County Assembly summoned the then County Secretary (4th Appellant), to appear before the Joint Committee on Infrastructure, Youth and Sports and the Joint Committee on Agriculture, Livestock, Fisheries and Co-operatives to answer queries over the stadium and the maize seeds supplied to farmers. The 6th respondent made a recommendation to the Governor (1st Appellant) to suspend the 4th Appellant pending investigations by the Ethics and Anti- Corruption Commission (EACC). A motion to impeach the 1st Appellant from office was tabled before the 6th respondent on the grounds that the 1st Appellant had refused or neglected to act on the recommendation of the 6th respondent which amounted to gross violation of the Constitution and abuse of office. The matter was forwarded to the Senate, which heard the matter and affirmed the 1st Appellant’s impeachment.
Several petitions and judicial review proceedings touching on these facts were consolidated into Petition No. 3 of 2014. The High Court issued declarations that the County Assembly and the Senate were best placed to determine whether a motion for the removal of a Governor was in accordance with the Constitution. However the proceedings conducted by the County Assembly and the Senate with regard to removal of the 1st Appellant were held in violation and in disregard of court orders and were therefore null and void. An order of certiorari was issued quashing the impeachment proceedings against the 1st Appellant. The 1st Appellant appealed against that decision.

Issues:

  1. Whether the County Assembly and the Senate were best placed to determine whether a motion for removal of a Governor was in accordance with the Constitution.
  2. Whether the High Court failed to exercise its constitutional mandate to determine whether the grounds for removal of the 1st Appellant met the constitutional threshold.
  3. Whether there had to be a nexus between the motion tabled in the County Assembly and the 1st Appellant.
  4. Whether personal conduct needed to be established in order to remove a Governor from office.
  5. Whether the impeachment and removal of the 1st Appellant as Governor was in accordance with the Constitution and the County Governments Act.
  6. Whether concept of equal protection under the law of constitutional offices was enforced.

Constitutional Law- Devolved Government- County Governments-impeachment of a county Governor- process for the removal of a County Governor from office-circumstances when a Governor could be impeached-impeachment for gross violation of the Constitution-definition of gross violation-standard of proof of gross violation-the constitutional threshold amounting to gross violation-whether the court has a constitutional duty to substantively analyse a charge of gross violation of the Constitution made against a Governor Constitution of Kenya, 2010, article 181; County Governments Act, 2012 section 33.

Constitutional Law-devolved government-County Governments-impeachment of a county Governor-exclusive power of the County Assembly and Senate to determine an impeachment motion-whether the High Court had a role to play in the process of impeachment of a Governor.

Constitutional Law-separation of power-balance of power in a democratic government- distribution of power to the Legislature, Executive and Judiciary- independence of branches of democratic government in performing functions.

Jurisdiction-jurisdiction of the High Court- supervisory jurisdiction of the High Court- constitutional jurisdiction of the High Court-quasi-judicial nature of County Assemblies during impeachment proceedings- whether High Court has jurisdiction to hear a substantive matter regarding the impeachment of a County Governor-Constitution of Kenya, 2010, article 165(6) .Read More...

Held:

  1. The terms ‘separation of power’ and ‘balance of power’ meant that the power of the three branches of a democratic government– the Legislative, Executive and Judiciary – should not be concentrated in one branch, but should be distributed such that each branch could independently carry out its own respective functions.
  2. The separation and balance of power rested on two main principles. First, the competencies of the three branches of governmental power had to be clearly delimited and defined. Second, all branches of government were bound by the rule of law. No branch of government was superior to the other but all were subject to the supremacy of the Constitution. No person or institution was immune to judicial scrutiny.
  3. The core function test served as a guiding principle to determine if the County Assembly and the Senate had the exclusive mandate and jurisdiction to remove a Governor from office and what the threshold to remove a Governor was. No organ was to interfere with the core function of another. The doctrine of separation of powers did not permit organs of government to interfere with the other’s functions. Each organ was empowered with countervailing powers which provided checks and balances on actions taken by other organs of government. Such powers were, however, not a license to take over the functions vested elsewhere.
  4. Article 181 of the Constitution as read with section 33 of the County Governments Act showed that removal of a Governor was a constitutional and political process. It was a sui-generis process that was quasi-judicial in nature and the rules of natural justice and fair administrative action had to be observed. The removal of a Governor was not about criminality or culpability but about accountability, political governance as well as policy and political responsibility.
  5. The organ vested with the mandate at the first instance of removal of a Governor was the County Assembly. Neither the courts nor the Senate had the constitutional mandate to move a motion for the removal of a County Governor.
  6. The jurisdiction and process of removal of a Governor from office was hierarchical and sequential in nature. There were three sequential steps to be followed. First was the initiation of a motion to remove the Governor by a member of the County Assembly; second was the consideration of the motion and resolution by two-thirds of all members of the County Assembly and third, the Speaker of the County Assembly was to forward the County Assembly’s resolution to the Senate for the hearing of charges against the governor.
  7. The Senate’s constitutional mandate to hear charges against a Governor was activated upon receipt of a resolution of the County Assembly to remove a Governor. The Senate could then convene a meeting to hear the charges against the Governor and could appoint a Special Committee to investigate the matter.
  8. The courts, in the above stated sequential steps, had neither been vested with jurisdiction to initiate a motion, consider a resolution nor to hear the charges levied against a Governor. The province of the court in the process of the removal of a Governor from office was solely to decide on the rights of individuals and not to enquire how the County Assembly and Senate performed the duties in which they had discretion.
  9. The Constitution exhaustively provided for the jurisdiction of a Court of Law, within which it had to operate. The High Court had four distinct constitutional jurisdictional mandates relevant to the question of removal of a Governor from office founded on article 165. These were :
    1. Supervisory jurisdiction over any authority exercising judicial or quasi-judicial functions.
    2. Jurisdiction to hear any question on actions performed under the authority of Constitution or any law that was inconsistent with or in contravention of the Constitution.
    3. Jurisdiction to hear and determine any matter relating to constitutional powers of State Organs in respect of county governments.
    4. Jurisdiction to interpret the Constitution.
  10. The supervisory role of the High Court in removal of a Governor ensured the procedure and threshold provided in the Constitution and the County Governments Act were followed. If the process for removal of a Governor was unconstitutional, wrong, un-procedural or illegal, it could not be said that the court had no jurisdiction to address the grievance arising therefrom. In its supervisory role, the jurisdiction of the High Court was dependent on the process and the constitutionality of the action taken.
  11. Article 181 of the Constitution and section 33 of the County Governments Act could not be interpreted as clauses that ousted the supervisory jurisdiction of the High Court nor construed as provisions that prohibited the right of a citizen to access a court of law where there was an allegation of infringement of a constitutional right to hold public office under Article 38 (3) of the Constitution. The right of access to courts could only be taken away by clear and unambiguous words of the Parliament of Kenya.
  12. In the exercise of its supervisory role, the High Court could not replace the decision of the competent organ with its own decision; it could only find fault with it. The court had to determine if the action taken was constitutional, rational and examine if there had been any procedural impropriety.
  13. The process of impeachment of a Governor was neither a civil nor criminal trial; it was a sui generis political and quasi-judicial process that had to adhere to the Constitution. The process involved policy and political responsibility and was a tool for ensuring good governance. When a court examined the constitutionality of any action, it was not seated in appeal over the opinion of the relevant organ but would only examine whether relevant material and vital aspects having a nexus to the constitutional and legislative purposes were taken into account in the actual process.
  14. Kenya’s legal system was premised on the concept of individual and personal liability or responsibility. The act or omission complained of must have been done or undertaken with the knowledge, consent or connivance of the person charged. The Senate in impeaching the 1st Appellant adopted the concept of collective responsibility in article 226(5) of the Constitution. A holder of a public office who directed or approved the use of public funds contrary to law or instruction was liable for any ensuing loss. However collective responsibility was a policy, governance and accountability concept and not a principle of personal liability or individual culpability.
  15. Collective responsibility did not mean that the leader/head was individually responsible and politically liable for all acts or omissions of subordinates. If collective responsibility were to be a principle of culpability and liability, it would follow that all persons who are collectively bound must individually be held answerable, blameworthy and accountable.
  16. The High Court was correct in stating that there had to be a nexus between the alleged gross violation and the conduct of a Governor. An element of personal knowledge that included intentional, brazen or wilful gross violation of the Constitution or other written law had to be established. However the High Court erred by not making a determination as to whether on the facts before it, nexus was established between the appellant and the alleged gross violation.
  17. There was need to maintain a high threshold for removal of the Governor and to ensure that the law was strictly followed. The standard of proof was neither beyond reasonable doubt nor on a balance of probability. Noting that the threshold for removal of a Governor involved “gross violation of the Constitution”, the standard of proof required for removal of Governor was above a balance of probability but below reasonable doubt.
  18. The Constitution did not define gross-violation. What amounted to gross violation had to be considered on a case by case basis taking into account the peculiar facts and circumstances of each case. Grave violation or breach of the Constitution constituted, inter alia, interference with the constitutional functions of the legislature and the judiciary by an exhibition of over constitutional executive power; abuse of the fiscal provisions of the Constitution; abuse of the Code of Conduct for public officers; disregard and breach of the provisions on fundamental rights; interference with local government funds and stealing from the funds, pilfering of the funds for personal gains; instigation of military rule and military government and any other subversive conduct which was directly inimical to the implementation of some other major sectors of the Constitution. (Hon. Muyiwa Inakoju& Others – vs- Hon. Abraham AdaoluAdeleke(The Inakoju Case)- Nigerian Supreme Court)
  19. The standard to be used to determine if the constitutional threshold for removal of a Governor had been met had to take into account the intendment of article 181(1) of the Constitution. Whatever was alleged against a Governor;
    1. Had to be serious, substantial and weighty.
    2. There had to be a nexus between the Governor and the alleged gross violations of the Constitution or any other written law.
    3. The charges framed against the Governor and the particulars thereof had to disclose a gross violation of the Constitution or any other written law.
    4. The charges as framed had to state with degree of precision the article(s) or even sub-article(s) of the Constitution or the provisions of any other written law that had allegedly been grossly violated.
  20. The motion to remove a Governor from office and particulars of the charge had to expressly state that the alleged violation was gross and give particulars of the alleged gross violation. An analogy could be drawn from criminal cases involving robbery with violence. Where the charge against the accused person involved an allegation that the weapon used was offensive and dangerous; the charge sheet had to expressly contain the words offensive and dangerous. If violation of the Constitution was alleged to be gross, the motion and charges against the Governor had to be expressly indicated with the words “gross violation” in the charge and the specific particulars of the alleged gross violation had to be given.
  21. Where the violation was not gross, then the removal process under article 181 of the Constitution was not available. The word “gross” had been omitted from the charges levelled against the 1st Appellant. A Governor was entitled to notice and particulars of the charges facing him and notice as to whether the allegation was merely an allegation of violation of the Constitution or other law or gross violation of the Constitution and other law.
  22. Gross violation of the Constitution included violation of the values and principles embodied in it that provided the bedrock and foundation of Kenya’s constitutional system. The facts that proved gross violation had to be proved before the relevant constitutional organ. The High Court was duty bound to determine if the facts in support of the charges against a Governor met and proved the threshold in article 181 of the Constitution.
  23. Though the process of removal of a Governor from office was both a constitutional and a political process, the political question doctrine could not operate to oust the jurisdiction vested on the High Court to interpret the Constitution or to determine the question if anything said to be done under the authority of the Constitution or of any law was consistent with or in contravention of the Constitution.
  24. The grounds for removal of a Governor stipulated in article 181 of the Constitution were substantively similar with some of the criteria in article 145 of the Constitution for impeachment of the President. In both articles, one of the criteria for removal of the President or Governor was gross violation of the Constitution or any other law or where there were serious reasons for believing that the office bearer had committed a crime under national or international law or if there was gross misconduct on the part of the office bearer. It was a principle of interpretation that provisions in pari material (of the same matter; on the same subject) were construed to have the same meaning. The facts that gave rise to invocation of the provisions of the respective Articles would differ but the meaning and import of the terms remained the same.
  25. The office of Governor was different from the office of Member of County Assembly although both were subject to a competitive electoral process. The rule of differentiation was inherent in the doctrine of equality; different treatment of different offices was equality of treatment. Parliament through the County Government Act had prescribed different procedure and threshold for removal of Governors and Members of the County Assembly. In relation to members of the County Assembly, the High Court had to confirm the grounds for removal.
  26. Whereas that was not the case with Governors, the supervisory jurisdiction of the High Court as well as the High Court’s jurisdiction to interpret the Constitution ensured that a Governor could not be removed from office if the constitutional procedure had not been followed and the constitutional threshold established and proved.
  27. The difference in procedure and grounds for removal of the President, Governor or Member of the County Assembly did not vitiate the constitutional process and threshold that had to be fulfilled for each of the distinctive offices.
  28. A court of law could not act in vain. The proceedings before the Embu County Assembly and the Senate that led to removal of the 1st appellant as Governor were declared null and void and quashed by the judgment of the High Court, and no appeal was lodged to challenge the decision.

Appeal partly allowed. The 5th and 6th respondents shall bear half the costs of this appeal.

CONSTITUTIONAL LAW Action taken by an employer against an employee in the Public Sector does not fall within the definition of administrative action under Article 47.

Prisca Kemboi & 2 others v Kenya Post Office Savings Bank [2014] eKLR
Petition 38 of 2013
Industrial Court of Kenya at Nairobi
October 7, 2014
L Ndolo, J
Reported by Njeri Githang'a & Charles Mutua

Download the Decision

Brief facts:
The Petitioners were all faithfuls of the Seventh Day Adventist (SDA) Church and employees of the Kenya Post Office Savings Bank, the Respondent herein. The Seventh Day Adventists ordinarily observed Saturday as their day of worship. The dispute in the Petition arose from the requirement by the Respondent that the Petitioners work on Saturdays. The Petitioners pleaded that at the commencement of their employment contracts, their adherence to the SDA faith was made known to the Respondent. Among the fundamental tenets of the SDA faith was the observance of the hours between sunset on Friday and sunset on Saturday as a day of worship, also known as the Sabbath. Prior to the dispute before the Court, the Petitioners had not been required to work on Saturdays. In order to accommodate the Petitioners, the Respondent had generally allowed arrangements such as working through the lunch break, working extra hours in the evenings and on Sundays to compensate for the half day work hours that the Petitioners did not serve on Saturdays. However, the Respondent began to compel the Petitioners to work on Saturdays. The Respondent had also instituted disciplinary proceedings against the Petitioners on account of failing to report to work on Saturday. It was the Petitioners' case that the Respondent's actions are in contravention of their rights and freedoms as guaranteed in the constitution of Kenya 2010.

Issues:

  1. Whether in requiring the Petitioners to work on Saturdays, the Respondent had violated the Petitioners' rights under Article 32 of the Constitution on rights to freedom of conscience, religion, belief and opinion.
  2. The extent to which the Petitioners' rights to freedom of conscience, religion, belief and opinion under Articles 32 could be limited
  3. Whether the Respondents' past conduct amounted to a waiver of its Terms and Conditions of Service and Code of Conduct and operated as an estoppel against the Respondent;
  4. Whether the right to fair administrative action under Article 47 of the constitution applies in employment relationships in the public sector.

Constitutional Law - fundamental rights and freedoms - freedom of worship -freedom against discrimination - an alleged violation of the freedom of worship -an alleged violation of freedom against discrimination-where an employee is compelled to attend work on his day of worship-Whether in requiring the Petitioners to work on Saturdays, the Respondent had violated the Petitioners' rights under Article 32 of the Constitution on freedom of worship-Constitution of Kenya, 2010, article 27 and 32; Employment Act, 2007, section 5

Constitutional Law-fundamental rights and freedoms-freedom of worship-limitation of the freedom of worship-an alleged violation of the freedom of worship-where an employer imposed work on the employee’s day of worship-The extent to which the Petitioners' rights on freedom of worship under Articles 32 could be limited-what justifications were to be taken into account by an employer before imposing work duties on an employee’s day of worship-Constitution of Kenya 2010, article 24

Labour Law-employment law-employment relationships-disciplinary rules-discipline of employees-who is to discipline an employee for failure to attend to work on his day of worship-whether an employer could invoke his administrative disciplinary proceedings against an employee for a misconduct during worship day that was on a working day and was not part of the terms and conditions of service-Whether the right to fair administrative action under Article 47 of the constitution applied in employment relationships in the public sector. Read More...

Estoppel-doctrine of estoppel-meaning of the doctrine and its application-waiver-meaning and the application of the doctrine of waiver-dispute-whether by allowing time off on Saturdays to the petitioners to observe their day of worship, the Respondent waived its policy and was therefore estopped from demanding compliance by the Petitioners-Whether the Respondents' past conduct amounted to a waiver of its Terms and Conditions of Service and Code of Conduct and operated as an estoppel against the Respondent.

Article 32

(1) Every person has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person's belief or religion.
(4)
A person shall not be compelled to act, or engage in any act, that is contrary to the person's belief or religion.

Held:

  1. Courts were expected to consider the effect of their decisions. That became more crucial in interpreting and enforcing rights under the Constitution. The Court was fully aware and had warned itself of the inherent minefield in adjudicating the dispute in the Petition. The fear expressed by the Respondent that if the Court ruled in favor of the Petitioners, then other employees would follow suit; pilots would refuse to take to the skies, doctors would switch off dialysis machines and chefs would refuse to cook on their respective days of worship. That would definitely result in industrial chaos. Court was called upon to consider every dispute that came before it without succumbing to judicial cowardice. In that spirit, the issues rose in the Petition and had formed the opinion that the Petitioners were seeking enforcement of their individual rights under the Constitution and their respective employment contracts. Those claims lend themselves to adjudication on their own merit.
  2. Matters of conscience and religion were uniquely personal and for an employer to simply insist that its employees had to report to work on Saturday and therefore ignore their day of worship was to miss the point. Considering the efforts made by the Petitioners to secure their day of worship, including offering to put in extra hours during the week, taking leave and forfeiting salary showed the seriousness which the Petitioners attached to their day of worship.
  3. Employers had to exercise flexibility in handling staff time off, one had to focus on what got done rather than how many hours employees put in. In light of advancement in technology, employers should have indeed exercised flexibility in working hours in order to accommodate deserving exemptions to human resource policies.
  4. Managers of institutions had to move from their corner offices to the shop floor and address the unique needs of employees for maximum returns. An employee who was consistently denied the opportunity to observe their day of worship would not be productive. A human resource policy that did not accommodate the unique spiritual needs of employees was unreasonable and it matters not that only a section of employees raised the issue. Nevertheless, employees themselves had to also exercise flexibility and be ready to attend to a sheep or ox that fell into a ditch on the Sabbath. (Mathew 12:11 and Luke 14:5).
  5. The effect of the Respondent's policy on hours of work was not to just limit the Petitioners rights under article 32 but obliterated them altogether and that flew right in the face of article 24 (2)(c) of the Constitution which prohibited limitations that derogated from the core and essential content of rights and freedoms.
  6. The Respondent created a legitimate expectation in the Petitioners that they would be granted time off on Saturdays to observe their day of worship. The arrangements thus created became part of the Terms and Conditions of Service of the Petitioners which could not be varied by a general instruction from the Human Resource Department. The Petitioners were allowed time off on Saturdays by their supervisors and the Respondent could not be heard to say that it had no knowledge of that arrangement, there was no evidence that the supervisors and managers involved were found to have done the wrong thing. An employee dealing with a senior official of an organization was not expected to go into the corporate boardroom to confirm whether the official in fact had authority to do what he sought to do. [Michael Mwalo Vs Board of Trustees National Social Security Fund Cause No 1093 of 2012].
  7. Action taken by an employer against an employee in the Public Sector did not fall within the definition of administrative action under Article 47. That did not however diminish the rights of the employee under the Constitution and applicable labor laws and in the current case; the findings of the Court were not affected by the interpretation accorded to article 47 of the constitution of Kenya 2010.
  8. The Respondent's actions were in violation of the Petitioners' right to observe their day of worship.

orders
(a)
The Respondent to review its policy on hours of work in order to accommodate the Petitioners' right to observe their day of worship on Saturday within acceptable limitations;
(b)
Respondent by its managers, supervisors, employees and/or agents restrained from taking any disciplinary action against the Petitioners on account of their observing Saturday as a day of worship;
(c)
The Respondent shall meet the costs of this Petition.