Kenya Law Weekly Issue 013/22-23

Held:

1. The court was satisfied that it had jurisdiction. The court assumed jurisdiction, for the same reasons that the High Court declined jurisdiction, and transferred the petition to the Employment and Labour Relations Court.
2. The directive of the 1st respondent, was not exhibited in the petition, and could not therefore be quashed through an order of certiorari. The respondents relied on order 53 rule 7 of the Civil Procedure Rules, however the proceedings were not presented pursuant to the Civil Procedure Rules. They were presented pursuant to of Kenya Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution Practice and Procedure Rules, 2012 (Mutunga Rules). Rule 11 stated that if a party wished to rely on any document, the document may be annexed to the supporting affidavit, or the petition where there was no supporting affidavit.
3. The Mutunga Rules did not make it mandatory for petitioners to annex documents, or to file supporting affidavits. Rule 9 permitted petitioners to present oral applications, letters or other informal documentations, which disclosed denial, violation, infringement or threat to a right. The applicable procedural regime was the Constitution of Kenya Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution Practice and Procedure Rules, 2012, and not the Civil Procedure Rules. The former was a more liberal procedural regime on filing of documents and supporting affidavits, and the order of certiorari could not be denied only on the ground that the letter communicating the impugned directive was not annexed to the petition. The Attorney-General ought not to have submitted on a non-issue, the decision of the 1st respondent, having been exhibited in the Petition.
4. The letter of August 5, 2021 from the 1st Respondent was addressed to all Principal Secretaries and Accounting Officers. The directive fit the description of mandatory vaccination. Vaccination as directed by the 1st respondent, became mandatory in the public service by virtue of policy, which required public officers to be vaccinated to continue accessing offices, earning their salaries and other benefits. Public officers were threatened with disciplinary sanctions, if they did not submit to the jab. Vaccine mandates required people to be vaccinated, to be allowed to do certain things, such as working or travelling. Vaccination was compelled, by direct or indirect threats of imposition of restrictions, in cases of non-compliance.
5. Persons and property were subject to all kinds of restraints and burdens, to secure the general comfort, health and prosperity of the State. Liberty was freedom from restraint under conditions essential to the equal enjoyment of the same right by others. Those who had no faith in vaccination, put in peril the health of the persons who were vaccinated. The principle of social compact required that the whole people covenants with each citizen, and each citizen with the whole people, that each shall be governed by certain laws for the common good. Vaccine resistance needed not be tolerated, when it allowed disease to spread. Mandatory vaccination was entirely constitutional.
6. When disease was prevalent, the court would usurp the functions of another branch of the Government, if it adjudged the mode adopted by the State, to protect the population at large, to be arbitrary and not justified by the necessities of the case. Vaccine pessimists had to give way to modern consensus that vaccines worked. The Judiciary ought not to overturn vaccine mandate.
7. Article 24(1) of the Constitution, permitted reasonable curtailment of fundamental rights and freedoms, where among other instances, the exercise of rights and freedoms, impeded the rights and fundamental freedoms of others. Vaccine mandates justified the right to life. If someone rejected vaccination during a pandemic, it endangered the lives of others, violating their right to life. Exercise of police powers of the state became justifiable, and limitation of individual rights and freedoms became justifiable, in an open and democratic society.
8. When it comes to Covid-19 and other pandemics, it was the ‘liberty’ of the pathogen that was the greatest threat to humanity, and hence, exercise of police powers of the State, became justifiable.
9. The Nuremberg Code involved human medical experimentation. The court did not think that mandatory vaccination, amounted to human medical experimentation. Medical experimentation referred to testing and evaluation of a new drug, or procedure on a human person, in order to gain knowledge that can be used for various purposes.
10. The Code originated from the trial of Nazi Doctors in who were charged with counts of forcible medical human experimentations conducted on concentration camp prisoners; euthanasia programs carried out on mentally sick patients; and killing of camp inmates for the express purpose of collecting skeletons for medical research. The principle of informed consent arose from those extremities. Experimentation relating to vaccines subject matter of the 1st respondent’s directive, must have taken place during their clinical trials. The vaccines were approved for use by World Health Organisation (WHO). They did not reach the global markets before they received WHO’s Emergency Use Listing [EUL]. The vaccines went through various phases of experimentation. It was during those phases that medical human experimentation was involved. There were persons who consented to have vaccines for experimentation purposes.
11. The Health Act, while requiring that health service providers obtain the patient’s informed consent, had various exceptions to the rule. Provision of health service was allowed without informed consent if the patient was unable to give consent; if an applicable law or order of the court allowed; if the patient was being treated in an emergency situation; if failure to treat the user or group of people which includes the user, will result in serious risk to public health; or if any delay in provision of the health service might result in the user’s death or user’s irreversible damage to health.
12. The Covid-19 situation was a medical emergency. The Health Act defined medical emergency, under section 2, as an acute situation of injury or illness that posed an immediate risk to life or health of a person, or had potential for deterioration in the health of a person or if not managed timely, would lead to adverse consequences in the person’s well- being.
13. The Covid-19 vaccination should not be limited by the concept of informed consent, as it was being administered in a globally acknowledged emergency situation. Failure to vaccinate would result in serious risk to public health. Delay in vaccination could result in death or irreversible damage to health. The Health Act did not therefore require that informed consent was obtained from the patient, at all times.
14. Public Officers had not been directed by the 1st respondent to have mandatory medical human experimentation; they had been directed to have vaccines, which had gone through the experimentation phase, and been approved for use by the manufacturers’ regulators such as US Food and Drug Administration, and globally by WHO. Human experimentation took place when the vaccine manufacturers, carried out their clinical trials.
15. Section 66 of the Health Act regulated the standards of medicine, vaccine or other health product and technology, intended for use by the Kenyan Public. Licensing was only granted, if after due assessment, the vaccine was found to achieve the intended effect it claimed to possess, which may reasonably be attributed to it; it was sufficiently safe under normal conditions of use; and was made and packaged according to satisfactory standards. Vaccines in use in Kenya must have gone through that licensing process.
16. There was a distinction between mandatory vaccine, and human medical experimentation. The petitioners did not adequately recognize the presence of the Health Act, in vaccination quality assurance and administration. Once it was accepted that vaccination was not human medical experimentation, the exercise of police power of the State, did not violate individual rights and freedoms.
17. In conducting vaccination, the 3rd respondent had protocols, which would not allow a person with allergies, contraindications and underlying conditions, which would have an adverse reaction to vaccination, to be voluntarily or mandatorily vaccinated. Kenyan medical personnel conducting vaccination were not proceeding from a position of ignorance. They acted in accordance with their oath of calling and in accordance with the Health Act. Every person receiving vaccination was taken through those protocols and signed a form, indicating consent. The allusion to compelled vaccination, was overstated. There were protocols, and consent was sought before vaccination. Vaccination was a minor medical procedure that reduced or eliminated the risk of contracting a targeted disease. The success of vaccination as a medical intervention in pandemic responses had been witnessed.
18. Individual liberties and rights secured by the Constitution did not import an absolute right in each person to be at all times and in all circumstances, wholly freed from restraint. The directive by the 1st respondent, was for the common good of the public officers and the general consumers of public service. It was meant to protect them from Covid-19 infections and prevent cross – infections. Public officers were an integral aspect of the community, and when they were vaccinated, it minimized community spread. The directive was to be seen against other measures put place by the 3rd respondent, in conjunction with WHO and US FDA, in ensuring that the vaccines were safe for human use.
19. Mandatory vaccination was necessary and justified, under the principle of social compact. Our common good, overrides our personal spaces. A community had the right to protect itself against a pandemic, which threatened the safety of its members.
20. The court would be usurping the functions of another branch of government, if it adjudged that vaccine mandate was unjustified. Vaccine pessimism must give way to the global consensus, that vaccines worked.
21. Article 24(1)(d) recognized the need to ensure that the enjoyment of rights and fundamental freedoms by any individual did not prejudice the rights and freedoms of others. The Constitution upheld the principle of social compact, where the whole people covenants with each citizen, and each citizen with the whole people, that all were to be governed by certain laws for common good.
22. Mandatory vaccines promoted the right to life. If someone rejected vaccination in a pandemic situation, it endangered the lives of others, thus violating the right to life of others. Vaccine mandates became a means of protecting others’ right to life. Vaccinated public officers not only protect their own lives; they protect the lives of the public. The State could not be a bystander while Covid-19 ravaged the community, and while article 43 of the Constitution mandated that every person had the right to highest attainable standards of health. Article 21(2) of the Constitution mandated the State to take legislative policy and other measures including the setting of standards to achieve the progressive rights guaranteed under article 43 (including right to the highest attainable standards of health).
23. The fight against Covid-19 and combating of pathogens through vaccination, was in line with article 21 and 43 of the Constitution of Kenya. It was not correct to equate the 1st respondent’s directive, as amounting to torture, cruel, inhuman and degrading treatment of the public officers. Vaccine mandates, (and mask mandates) were necessary and constitutionally valid.
24. The directive by the 1st respondent was constitutionally justified, and well-founded in Occupational Safety and Health Act, 2007. By requiring Public Officers to be vaccinated, the Head of Public Service fulfilled an obligation imposed on Employers by the Act, and acted in accordance with the Constitution. Public officers had a responsibility to submit to those safety and health requirements, by being vaccinated.
25. Section 4 and 15 of the Health Act similarly made it clear that it is the role of the State to ensure every person enjoys the highest achievable standards of health. The Health Act did not view mandatory vaccines as a novelty. Section 5(3) obligated the National and County Governments to ensure the provision of free and compulsory vaccination for children under 5 years of age. Most Kenyans encountered vaccine mandates from the time of their birth. There was absolutely nothing unconstitutional or illegal about them having mandatory vaccination, in their adulthood, while faced with emerging and deadly pathogens.
26. The proposal in the directive, to have public officers who were not compliant being subjected to disciplinary proceedings, appears to the court within the norm of a carrot and stick policy, to ensure as many public officers as possible, submitted to vaccination. Denial of access to office, for the unvaccinated was a common method of encouraging compliance among public officers and the public. Stoppage of salary and withdrawal of salary and other benefits, in a situation where public officers were found to have deliberately avoided vaccine and opted to stay or ‘work’ at home, could be justified under section 19 of the Employment Act. The court did not see the directive as being in violation of fair labour practice, or fair administrative actions, rights. Disciplinary proceedings in individual cases, would still have to meet the standards of fairness under the Employment Act.
27. The circumstances in which the 1st respondent’s directive issued, warranted the application of police powers of the State. When state officials undertook to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. The directive issued alongside other measures undertaken by the 3rd respondent, which included: public education; imposition of curfews and general restriction of movement; social distancing; and face masking.
28. The Government of Kenya adopted vaccine mandate in the public service, alongside other measures. One did not mask up, socially distance, or sanitize, as an alternative to being vaccinated against Covid-19. The court did not think other measures were alternatives; the measures, in a pandemic situation, were complementary.
29. The mandated vaccines had been approved by Institutions such as WHO. They had been licensed by the 3rd respondent. The 3rd respondent had guidelines in the administration of vaccines and was governed by the Health Act in that undertaking. The vaccines went through clinical trials and approvals in their countries of origin. Vaccination was not medical human experimentation. The U.S. Food and Drug Administration, and other regulators in the vaccines’ countries of origin, did not permit vaccines to leave the laboratories, without strict quality assurance. There were multiple clinical trials.
30. The anti-vaccination literature exhibited by the 1st petitioner in his supporting affidavit, was downloaded from google and did not constitute probative medical evidence. The literature was generated by vaccine pessimists and was not evidence the court could act on. Declaratory and compelling orders sought by the petitioners, to have no merit. Certiorari order sought would amount to the court unreasonably infringing the sphere of another arm of Government, in ensuring safety and health for all.
31. The prayers that sought the court to have the 3rd respondent maintain a control and monitoring system that aims to minimize Covid-19 related side effects, contraindications and deaths, was not based on medical evidence availed to the court. Orders compelling the 3rd respondent to investigate and publish data every 7 days, on persons who had been vaccinated and still contracted Covid-19, and publication of data on those with pre-existing conditions who died from Covid-19, were not necessary. The petitioners had not laid a basis for such compulsion.
32. Section 100 of the Health Act obligated the 3rd respondent to facilitated the establishment and maintenance of a comprehensive integrated health information system. There was no point in ordering the 3rd respondent to do what the Health Act, already obligated the 3rd respondent to do. If the 3rd respondent had not complied with section 100 of the Act, it was open to the petitioners to seek enforcement under the Health Act. Ultimately, the State must have had a broad latitude in vaccination of the masses, and the judiciary was not to interfere with the police powers of the State, in the fight against covid-19 pandemic.

Petition declined with costs.

Relevant Provisions of the Law
Elections (Registration of Voters) Regulations, 2012
Regulation 13(c)
13C.  Transfer of registration:
A voter is not qualified to transfer his or her registration unless at the date of his or her application to be transferred he or she was ordinarily resident in that constituency six months immediately preceding the date of his or her application for transfer.

Elections Act, No. 24 of 2011
Section 7
7.       Transfer of registration
(1)       Where a voter wishes to transfer the voter's registration to an electoral area other than the one the voter is registered in, the voter shall notify the Commission, in the prescribed manner, of the intention to transfer the registration to the preferred electoral area not less than ninety days preceding an election.
(2)       Upon receipt of the notification referred to in subsection (1), the Commission shall transfer the voter's registration particulars to the register of the preferred constituency not later than sixty days preceding the election.

Constitution of Kenya, 2010
Article 38
38.     Political rights:
(1)       Every citizen is free to make political choices, which includes the right—

(a)      to form, or participate in forming, a political party;
(b)      to participate in the activities of, or recruit members for, a political party; or
(c)       to campaign for a political party or cause.

(2)       Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a)      any elective public body or office established under this Constitution; or
(b)      any office of any political party of which the citizen is a member.

(3)       Every adult citizen has the right, without unreasonable restrictions-

(a)      to be registered as a voter;
(b)      to vote by secret ballot in any election or referendum; and
(c)       to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Held:

1. Articles 20(4) and 259(1) of the Constitution gave guidelines on how the Constitution was to be interpreted. The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms and in a manner that contributed to good governance.
2. The Constitution should be interpreted in a holistic manner, within its context, and in its spirit. The approach to interpret the Constitution should be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution.
3. Courts utilized a three-pronged criteria in determining whether a fundamental right or freedom may be justified.
   1. The objective test established that a limit was reasonable and demonstrably justified in a free and democratic society, the objective, which the measures responsible for a limit on a charter right or freedom were designed to serve, had to be of sufficient importance to warrant overriding a constitutionally protected right or freedom.
   2. The proportionality test. Once a sufficiently significant objective was recognized, then the party invoking had to show that the means chosen were reasonable and demonstrably justified. That involves a form of proportionality test. A proportionality test had three important components:
   1. the measures adopted had to be carefully designed to achieve the objective in question. They were not to be arbitrary, unfair or based on irrational considerations. They had to be rationally connected to the objective.
   2. The means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question.
   3. There had to be a proportionality between the effects of the measures which were responsible for limiting the Charter right or freedom, and the objective which had been identified as of sufficient importance.
4. Regulation 13C of the Elections (Registration of Voters) Regulations, 2012 ( the impugned regulation), section 7 of the Elections Act and article 38 of  the Constitution made provisions which had a bearing on the transfer of registration by voters. The Constitution, unlike the Elections Act and the impugned regulation, did not make express provisions on the transfer of registration. However, as said, the provisions of the Elections Act and the impugned regulation in a way impact upon article 38 of the Constitution.
5. On one hand, the Elections Act spoke of the Commission to be notified by a registered voter of the voter’s intention to transfer the registration. On the other hand, the impugned regulation spoke of making of an application to the Commission for transfer of registration.
6. Apply meant to make a formal request or motion. Notify meant to inform (a person or group) in writing or by any method that was understood or to give notice of; to make known. In applying one made a formal request to the IEBC for the IEBC’s permission or consent to effect the transfer. It, therefore, meant that if the IEBC declined the application then that was the end of the road for the voter. The consent of the IEBC was a prerequisite for effecting the transfer of registration.
7. A voter was just required to inform the IEBC of the intention to transfer the registration. Once the IEBC received the notification, then it had to make the changes. No permission of the IEBC was required in the case of a party notifying the IEBC.
8. Section 7 of the Elections Act was different from that of the impugned regulation. The application requirement under the impugned regulation overrode the notification called under the Elections Act. The impugned regulation was in conflict with the Elections Act.
9. The Elections Act was a substantive Act of Parliament. It was a parent Act. It made provision for the IEBC to make subsidiary legislation under section 109 thereof. The Elections (Registration of Voters) Regulations, 2012 which derived life from the Elections Act, was a subsidiary legislation or delegated legislation. The subsidiary legislation was in contrast with the parent Act. That called for reconciliation by the court.
10. Sections 2, 29 and 31(b) of the Interpretation and General Provisions Act amplified the need for harmony in meanings between the parent Act and a subsidiary legislation. The law abhorred inconsistencies. The only instance where the law allowed any variance was where the parent Act expressly stated that the subsidiary legislation was to provide to the contrary. No subsidiary legislation shall be inconsistent with an Act of Parliament.
11. Before the court decided that a particular instrument or subsidiary legislation was inconsistent with the Act, it had be satisfied that the two provisions could not stand together. What the court was required to do was to construe the instrument with the necessary alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Act. It was only when the instrument could not, despite such construction, conform to the Act that the court would be entitled to nullify the instrument. If the choice was between two strongly competing interpretations, the advantage may lie with that which produced the fairer and more convenient operation so long as it conformed to the legislative intention.
12. The impugned regulation which called for a voter to make a formal application for transfer of registration could not be read into section 7 of the Elections Act which only called for such a voter to just notify the Commission. The two requirements were worlds apart. The Elections Act made no provision or intention for a contrary meaning of section 7 in the subsidiary legislation. The impugned regulation was irredeemably inconsistent with section 7 of the Elections Act and as such, the impugned regulation had to give way to the parent Act.
13. Whereas the impugned regulation may seem to be aimed at curtailing the commission of some election offences, there was a law in place dealing with all forms of electoral offences and malpractices. The Elections Act and other regulations made thereunder had provisions on when voter registration and transfer was suspended. Further, the Constitution and the Elections Act put a lot of premium on avoiding unreasonable restrictions in voter registration and voting. The objective of the impugned regulation could not be said to relate to concerns which were pressing and substantial in a free and democratic society.
14. The impugned regulation could not be characterized as sufficiently important to limit a right. The impugned regulation cannot be said to be proportional to the alleged mischief. The mischief, if any, was already and sufficiently taken care of by other existing laws.
15. The impugned regulation had the effect of constricting the right to register as a voter rather than creating an enabling environment for the greater realization of the right. The impugned regulation did not stand the threshold in article 24 of the Constitution to limit the right of a voter to transfer registration. In essence, the impugned regulation was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The impugned regulation infringed on article 38 of the Constitution to the extent that it curtailed a voter’s right to freely make political choices and to transfer registration. Likewise, the impugned regulation infringed article 27(1) and (2) of the Constitution to the extent that it did not accord a voter the right to equal protection and benefit of the law. The impugned regulation contravenes Articles 27(1) and (2) and 38 of the Constitution.
16. The amendments that brought forth the impugned regulation were originated by the IEBC. The amendments were made pursuant to section 109 of the Elections Act. The provision granted power to IEBC to make regulations generally for the better carrying out of the purposes and provisions of the Act. The Elections (Registration of Voters) (Amendment) Regulations, 2017, was, hence, a subsidiary legislation. As such, it had to strictly comply with the Constitution and the Statutory Instruments Act.
17. There was need for all persons, state organs and public bodies to undertake public participation in appropriate cases for their actions or decisions to gain constitutional validity. Whereas an allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
18. The impugned regulation was so germane that it went into root of inter alia the political rights of citizens. As such, it was a matter that called for appropriate engagement especially on the clarity of the subject matter for the public to understand, the medium of engagement ought to have been clear and simple; there ought to be an opportunity for balanced influence from the public in general; the commitment to the process could not be overemphasized; inclusive and effective representation was necessary; the integrity and transparency of the process was to be guaranteed; the capacity to engage on the part of the public was cardinal, including that the public must be first sensitized on the subject matter. The IEBC was under a duty to satisfy the court that the above had been undertaken. That called for evidence. However there was no such evidence tendered. The hollow averments could only amount to hearsay.
19. The effect of the impugned regulation on the general public, it was incumbent upon the IEBC to undertake a robust public engagement, a duty which IEBC failed to discharge. The lack of engagement ran contra articles 10 and 47 of the Constitution as well as the Statutory Instruments Act and the Fair Administrative Actions Act for want of public participation and fair administrative procedures.

Petition allowed.
Orders

1. Declaration issued that regulation 13C of the Elections (Registration of Voters) Regulations, 2012 was in violation of article 38 of the Constitution to the extent that it curtailed a voter’s right to freely make political choices and to transfer registration, hence, unconstitutional.
2. Declaration issued that regulation 13C of the Elections (Registration of Voters) Regulations, 2012 infringed article 27(1) and (2) of the Constitution to the extent that it did not accord a voter the right to equal protection and benefit of the law and further infringes articles 10 and 47 of the Constitution as well as the Statutory Instruments Act and the Fair Administrative Actions Act for want of public participation and fair administrative procedures, hence, unconstitutional.
3. The petitioners were at liberty to transfer their registrations once the registration of voters’ resumed.
4. Each party was to bear its own costs.

Held :

1. The Petition in Francis Nzioki Kavuu v Kenya Copyright Board & 3 others; Kenya Music Copyright Society of Kenya & 3 others (Interested Parties) [2021] eKLR.dealt with the issue of whether a forensic audit called for by KECOBO amounted to retrospective application of the Copyright Act, 2001 (as amended in 2019) and whether KECOBO, in applying the law retrospectively, had violated Articles 10, 36 and 47 of the Constitution or any other law. The issues in the Francis Nzioki Kavuu v Kenya Copyright Board & 3 others; Kenya Music Copyright Society of Kenya & 3 others case (supra) were distinct from those raised in the current proceedings.
2. Whereas  Laban Toto Juma & 4 Others v Kenya Copyright Board & 9 others [2018] eKLR dealt with whether section 46(5) of the Copyright Act violated articles 36(1) and (2) and 40 of the Constitution, the ground for such the challenge was whether section 46(5) of the Copyright Act was in violation of the Constitution for allowing only one licensed collecting society to operate in a class of rights and category of works. As a result, the Laban Toto case interrogated the decision by KECOBO to licence Music Publishers Association of Kenya (MPAKE) to the exclusion of MCSK (the petitioner). The issues in the instant Petition dealt with whether sections 46 and 46A to G of the Copyright Act violated articles 27 and 40 of the Constitution on the basis of the allegation that the petitioner, Music Copyright Society of Kenya (MCSK), was not a collective management organisation (CMO) within the meaning of the Copyright Act; that sections 46 and 46A to G of the Copyright Act were in contravention with article 40 of the Constitution as they perpetrate the infringement of intellectual property rights by requiring a rights holder to seek a license before exercising/ exploiting/administering its own rights as well as the contention as to whether Section 46A of the Copyright Act violates Article 27 of the Constitution to the extent of allowing the respondents to arbitrarily peg value of music/tariff to a percentage of business permit and by further perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works. The issues in the instant petition were different from those in the former case.
3. Decisions by multi-Judge benches were generally considered to be at par with those of a single-judge bench. However, the input of several judges in coming up with a composite decision remained an important consideration. Although the decisions of multi-Judge benches were highly persuasive and presumably jurisprudentially enriched, they were not binding on the single-judge benches of the High Court.
4. The unconstitutionality of a statutory provision could be challenged on several grounds. When a court upheld the constitutionality of a statutory provision, that did not, per se, bar another court of concurrent jurisdiction from considering the unconstitutionality or otherwise of the same statutory provision. As long as the grounds challenging the constitutionality of a statutory provision were different, courts were at liberty to consider such pleas. The doctrine of res judicata was not applicable in the instant matter.
5. Where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. The special procedure provided by any law must be strictly adhered to since there were good reasons for such special procedures.
6. while, exceptions to the exhaustion requirement were not clearly delineated, courts had to undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applied.
7. The High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. That exception to the exhaustion requirement was particularly likely where a party pleaded issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value was at stake. It was also essential for the court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it was suitable to determine the issues raised.
8. The jurisdiction of the courts to consider valid grievances from parties who lacked adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which was proportionate to the interests the party wished to advance in a suit must not be ousted. Statutory provisions ousting the court’s jurisdiction had to be construed restrictively.
9. Section 48 of the Copyright Act which dealt with the establishment and duties of Copyright Tribunal. The objection on the strength of the exhaustion doctrine could not be said to be a serious one. It was apparent that none of the issues raised in the petition could be resolved before the Copyright Tribunal. The objection was dismissed.
10. The position of a deputy executive director in the 1st respondent was a creation of the law. The person holding the position was necessary personnel in enabling the 1st respondent to discharge its duties.
11. It was not mandatory for the 1st respondent to have annexed a copy of the Board’s resolution authorizing the deputy executive director to execute documents on behalf of the 1st respondent.  The issue of the authority of the deputy executive officer of the 1st respondent to execute dispositions on behalf of the 1st respondent was only raised in the petitioner’s submissions. In such a scenario, the 1st respondent relied on the law to justify its position. Had the Petitioner raised the matter in its disposition, the 1st respondent would have had an opportunity of responding to the issue and may have availed the authority. As the 1st respondent opted not to do so and in view of the position of the law, the objection lacked any legal leg to stand on.
12. The Constitution was a sui generis document. It was the ultimate source of law in the land. It commanded superiority and dominance in every aspect and its interpretation as of necessity was to be in a manner that all other laws bowed to.
13. The rules of constitutional interpretation did not favour formalistic or positivistic approaches. The Constitution had incorporated non-legal considerations had to be taken into account in exercising the High Court’s jurisdiction. Courts, while observing the importance of certainty of the law, had to nurture the development of the law in a manner that eschewed formalism, in favour of the purposive approach. Interpreting the Constitution, was a task distinct from interpreting the ordinary law. The Constitution compelled a broad and flexible approach to interpretation.
14. the Constitution should be interpreted in a holistic manner, within its context, and in its spirit. Holistic interpretation meant interpreting the Constitution in context. It was the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
15. The Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance. The spirit and tenor of the Constitution had to preside and permeate the process of judicial interpretation and judicial discretion.
16. The Constitution was to be interpreted broadly, liberally and purposively so as to avoid the austerity of tabulated legalism. The Constitution was to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle). The above principles of interpretation of the Constitution also applied to the construction of statutes.
17. There were other important principles which applied to the construction of statues which also applied to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that created an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produced artificial result and, lastly, the principle that the law should serve public interest – meaning that the court should strive to avoid adopting a construction which was in any way adverse to public interest, economic, social and political or otherwise. The court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be guided by the letter and spirit of the Constitution.
18. A CMO was a licensed organisation which acted on behalf of a copyright rights holders in negotiating, collecting and distributing royalties. A CMO in further dealing with the third parties granted permission for the use of the copyright works or related rights. A CMO took the form of an agent of a known principal. A CMO usually undertook such duties either on behalf of its members or on behalf of any copyright rights holder who was not its member.
19. There was no evidence that the petitioner was a copyright rights holder. What was on record was that the petitioner was acting on behalf of copyright rights holders. As such, the petitioner was an agent and could only be a CMO within the meaning of the Copyright Act.
20. What the petitioner was attempting to engage in was to approbate and reprobate on whether it was a CMO. Such approach was impermissible and held out the petitioner as a vexatious litigant.
21. State regulation of intellectual property rights was provided for in article 40(5) of the Constitution. However, in the course of undertaking the regulation, whether through statutory interventions or by policy decisions, the State had to ensure that it acted within the confines of the Constitution and the law more so as specifically cautioned in article 40(2), (3) and (4) of the Constitution. The petitioner was a CMO and was subject to lawful regulation.
22. Sections 46 and 46A-G of the Copyrights Act were not in contravention of article 40 of the Constitution as they did not provide for any licensing of an intellectual property rights holder before such an owner could exercise/exploit/administer one’s own rights. Section 46A of the Copyright Act showed that the law restricted any collection society from otherwise dealing with the imposition or collection of any royalty which was not based on a tariff that had been approved and published in the Gazette by the Cabinet Secretary. Although the provision imposed the duty to gazette the tariff on the Cabinet Secretary, it did not, however, state the manner in which the tariffs would be arrived at.
23. Arbitrariness was a decision or an action that was based on individual discretion, informed by prejudice or preference, rather than reason or facts. Whereas section 46A of the Copyright Act did not provide for the manner in which a Cabinet Secretary may come up with a tariff. The position of a Cabinet Secretary was a creation of the Constitution. A cabinet secretary was a state officer under article 260 of the Constitution. Article 10 of the Constitution called upon state officers, among others, to be bound by the national values and principles of governance in the discharge of their duties. Further article 3 of the Constitution obligates every person to respect, uphold and defend the Constitution.
24. It could not be the case that a cabinet secretary was at liberty to arbitrarily exercise its powers as conferred upon by the Constitution or the law. Just like caged animals, cabinet secretaries had to comply with the constitutional and statutory demands while discharging their duties. It was not open for a cabinet secretary to exercise any power conferred upon whimsically.
25. The apprehension that the cabinet secretary was likely to, albeit, arbitrarily exercise its powers, could not be a basis of a Court to determine a matter before it. Courts were called upon to adjudicate upon dispute which were real and had crystallized. The allegation that section 46A of the Copyright Act violated article 27 of the Constitution to the extent of allowing the respondents to arbitrarily peg value of music/tariff to a percentage of business permit and by further perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works was only, but illusionary.
26. For the petitioner to succeed in such a matter, there was need for proof of the arbitrariness and discrimination on the part of the cabinet secretary. The petitioner had not disclosed any single approved tariff by the cabinet secretary as a basis of the allegation. There was no gazette notice of any approved tariff on record.
27. There was no evidence to prove the allegation of arbitrariness on the part of the respondents. The petitioner had, on an equal footing, failed to demonstrate any form of discrimination in imposing an alleged flat rate tariff on broadcasts of musical works. The court was only called upon to decide on an imaginary issue. The petitioner failed to discharge the burden of proof.
28. Proceeding with the matter further would be an act in futility since a party can only be cited for disobeying a court order if the order, in a defined way, related to such a party. In the instant case, the order did not. As the petitioner had the opportunity to amend the order, but opted not to, it could only be fair that the contempt proceedings were instituted against Music Copyright Authority and not the petitioner. The application was made against a non-party in the proceedings, and hence, it also lacked any legal leg to stand on.

Petition and applications dismissed, the petitioner was to bear the costs of the petition.