Kenya Law Weekly Issue 002/24-25

The haste with which the Social Health Insurance Fund Act, the Primary Health Care Act, and the Digital Health Act were enacted infringed on the national values and principles of the Constitution

Headnote: The main issue that arose was concerned with the constitutionality of the Social Health Insurance Fund Act, the Primary Health Care Act, and the Digital Health Act . The court held that the effort of the Cabinet Secretary in attempting to realize the social economic rights provided under Article 43 was commendable. The objectives and purpose of the impugned legislation were to have a progressive, transformative, and huge impact on the realization of universal healthcare for the country. However , the haste with which they were enacted infringed on the national values and principles of the Constitution . In as much as it was a noble intention, the constitutional tenets that bound Kenya could not be disregarded. Article 20 required Kenyans to promote and protect the values that underlie an open and democratic society and the spirit, purports, and objects of the Bill of Rights. Being cognizant of the importance of the impugned Laws and the input that had already gone into their enactments and recognizing the purport of the enactments as far as realization of the rights under Article 43 of the Constitution, Parliament was allowed to redeem itself and save the Laws. The breaches that tainted the Laws were redeemable within and could be corrected. The court ordered that Parliament ought to undertake sensitization, adequate, reasonable, sufficient, and inclusive public participation under the Constitution before enacting the said Acts and amending the unconstitutional provisions in terms of the judgment.

Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment)
Neutral citation: [2024] KEHC 8255 (KLR)
The High Court at Nairobi
A Mabeya, RK Limo & FG Mugambi, JJ
July 12, 2024
Download the Decision

Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – violation of fundamental rights and freedoms – whether provisions of the SHIA infringed on Kenyan’s right to dignity and integrity; freedom from servitude and slavery, and the freedom of conscience, religion, and thought – whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level was a reasonable and justifiable limitation to Article 43 (1) (a) on the right to access to health – whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level infringed on the right to access emergency medical services – Constitution of Kenya, 2010, articles 28, 30 (1), 32, 43 (1) (a)
Constitutional Law – national values and principles of governance – participation of the people – public participation – threshold of public participation – what was the bare minimum guideline for public participation to be considered sufficient – whether the process of enacting the SHIFB, DHB and PHB involved sufficient public participation – Constitution of Kenya, 2010, article 10, 118 and 132
Constitutional Law – public finance – principles of public finance – principle of openness and accountability, including public participation in public finance matters – whether the introduction of a new section 38 that provided how to deal with the balance of the funds at the end of the year failed the constitutional test of openness, accountability, and public participation in financial matters – Constitution of Kenya, 2010, article 201 (a)
Civil Practice and Procedure – institution of suits – sub judice – determination of suit where there existed another similar suit pending before court, with similar parties who were seeking similar relief – whether there existed a similar suit with the same parties, seeking similar relief in another court, that would render the ongoing suit sub judice – Civil Procedure Act, section 6
Legislation – procedures for enacting legislation – bills concerning county government – consultation of the Commissioner of Revenue Allocation when enacting legislation relating to financial matters concerning County Government – whether failure to consult the Commissioner of Revenue Allocation when enacting legislation relating to financial matters concerning County Government rendered the SHIA, DHA, and PHA unconstitutional – Constitution of Kenya, 2010, Article 205 (1)
Legislation – procedures for enacting legislation – bills concerning county government – requirement that bills concerning county government required concurrence between the speakers of the National Assembly and Senate – whether the requirement for concurrence of the speakers of the National Assembly and Senate was mandatory – whether the concurrence between the speakers of the National Assembly and the Senate could be presumed as implicit, where the Memorandum and Objects and Reasons of the impugned laws had already stated that they were Bills concerning counties – Constitution of Kenya, 2010, Article 110 (3)
Legislation – procedure for enacting legislation – publication of bills - timelines for publication of bills – discretion of parliament to reduce timelines for publication of bills – whether parliament had the discretion to reduce the timelines for publication of bills – whether parliament exercised proportionate judgment when they reduced the period of publications of the three Bills from the requisite 14 days to less than half of that time
Statutes – enactment of statutes – procedure of enactment of statutes – enactment of Acts of Parliament viz-a-viz statutory instruments – what was the distinction between Acts of Parliament and statutory instruments – whether Acts of Parliament ought to be enacted according to the process set out within the Statutory Instruments Act – Statutory Instruments Act, sections 5, 6, 8, 9 and 11.

Brief Facts:
Article 43(1)(a) of the Constitution of Kenya 2010 (the Constitution) provides that every person has the right—to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. To realize the aspirations, set out in the Article, in October 2023 the Legislature enacted 3 legislations: - The Primary Health Care Act No. 13 of 2023 (“PHCA”) whose purpose was to provide a framework for the delivery of, access to and management of primary health care and for connected purposes; The Digital Health Act No. 15 of 2023 (“DHA”) whose purpose was to provide for the establishment of the Digital Health Agency; to provide a framework for the provision of digital health services; to establish a comprehensive integrated digital health information system; and for connected purposes and; The Social Health Insurance Act No. 16 of 2023 (“SHIA”), whose purpose was to establish the framework for the management of social health insurance; to provide for the establishment of the Social Health Authority; to give effect to Article 43(1)(a) of the Constitution; and for connected purposes.
The petitioner challenged the constitutionality of the 3 statutes (“the impugned statutes”). The respondents, in turn, justify the enactment of those statutes by citing the overarching need to breathe life into Article 43(1)(a) and Article 24 of the Constitution, which pertained to limitations of rights and fundamental freedom.

Issues:

Whether there existed a similar suit with the same parties, seeking similar relief in another court, that would render the ongoing suit sub judice
Whether the process of enacting the social health insurance fund bill, digital health bill and primary healthcare bill involved sufficient public participation
Whether the concurrence between the speakers of the national assembly and the senate could be presumed as implicit, where the memorandum and objects and reasons of the impugned laws had already stated that they were bills concerning counties
Whether parliament had the discretion to reduce the timelines for the publication of bills
Whether parliament exercised proportionate judgment when they reduced the period of publication of the three bills from the requisite 14 days to less than half of that time
Whether acts of parliament ought to be enacted according to the process set out within the statutory instruments act
Whether provisions of the SHIA infringed on Kenyan’s right to dignity and integrity; freedom from servitude and slavery, and the freedom of conscience, religion, and thought
Whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level was a reasonable and justifiable limitation to Article 43 (1) (a) on the right to access to health
Whether sections 26 (5) and 27 (4) which set compliance with the SHIA as a precondition for access to services at both the county and national level infringed on the right to access emergency medical services
Whether failure to consult the Commissioner of Revenue Allocation when enacting legislation relating to financial matters concerning the County Government rendered the SHIA, DHA, and PHA unconstitutional
Whether the introduction of a new section 38 that provided how to deal with the balance of the funds at the end of the year failed the constitutional test of openness, accountability, and public participation in financial matters

Held:

Under section 6 of the Civil Procedure Act, the doctrine of sub judice required the existence of two similar suits, with one being first in time, pending before different courts, and involving the same parties seeking similar reliefs. A party invoking the doctrine of sub judice must establish that there was more than one suit over the same subject matter; one suit was instituted before the other; both suits were pending before Courts of competent jurisdiction; and the suits involved the same parties or their representatives.
Dominic Masinya Oreo was the petitioner in NRB H.C Pet No. E413 of 2023 and ELRC Pet. No. E 199 of 2023, suing 3 respondents; the National Assembly, the Attorney General and the Cabinet Secretary of the Ministry of Health. In contrast, the petitioner in the instant case was Aura Joseck Enock, who had sued not only the 3 respondents but also 8 additional respondents and two interested parties. While some reliefs in the cited petitions overlapped, they were not entirely similar. The instant petition was more comprehensive and expansive in its scope. The parties involved were not identical and neither were all the issues. Although the other petitions touch on employment issues and NHIF, those were not central to the instant case. The instant petition was not sub judice.
Public participation was a fundamental national value and governance principle prominently enshrined in the Constitution of Kenya and highlighted in Articles 10, 118 and 232. Article 10 (2) (a) specifically emphasizes on participation of the people as a cornerstone of Kenya's governance ethos. The provision reinforced Article 1 of the Constitution on the sovereignty of the people. Its spirit was that decisions should not be made affecting the people of Kenya without recourse to them.
Article 118 of the Constitution requires Parliament to ensure public participation in the process of legislation. Parliament was required to conduct its business transparently and in the open and hold its sittings and those of the Committees in a place open and accessible to the public. The importance of that requirement was that the participation of the people in their affairs gave impetus to good governance, improved service delivery and responsiveness of government and its agencies.
Public participation required the following bare minimum: -
1. Proper sensitization on the nature of legislation to be enacted or policy to be effected;
2. Adequate notice depending on the circumstances which must however be reasonable;
3. Facilitation of the public that ensured that members of the public could access the information required in a convenient and practical manner, understand the same, and have a meaningful opportunity to attend, contribute and provide their views;
4. The views of the public should be considered and where they were to be rejected or declined, the reason for such rejection and dismissal should be stated; That would obviate the public participation being a cosmetic or a public relations act;
5. Public participation should be inclusive and should reflect a fair representation and diversity of the populace to be affected;
6. There must be integrity and transparency of the process.
There was no sensitization of the public, keeping in mind the nature, extent and magnitude of the policy that was to inform the enactment of the Bills. Sensitization ought to have been done before inviting comments from the public. 14 days for submission of memoranda was not adequate in the circumstances given that it concerned 3 Bills that were highly technical with far-reaching consequences. There was no evidence that there was any deliberate attempt to facilitate the public to give any meaningful contribution within that period.
Public participation must be both qualitative and quantitative. The CS did not produce any evidence to show that ordinary members of the public submitted any comment. The notice given by the National Assembly was too short, for members of the public to access the 3 Bills online, study them, process them and make any meaningful contribution. Moreover, the alleged public participation in Mombasa only involved the Ministry of Health and the Council of Governors. No evidence was placed before the court to show that members of the public were invited or were present at the meeting.
The advertisement of the Senate inviting views on the Primary Healthcare Bill left a timeline of 1 clear working day for the public to gain access to the website, interrogate and give views on the Bill. The advertisement for the Social Health Insurance Fund Bill (SHIFB) and Digital Health left one with only 2 clear working days to access the website, interrogate and provide what was supposed to be meaningful comments on the Bills.
The physical public participation sitting in Lodwar, Turkana County was an already pre-determined ordinary sitting of the Senate dabbed Senate Mashinani. From the entire Hansard, there was nothing to show that the sitting was intended for public participation on the impugned Bills. No evidence was presented to show that members of the public were invited to that meeting to make representations on the 3 Bills as alleged in the affidavit. The memoranda produced as JN5 had not attested to the Senate’s contention of any public participation at the alleged meeting and was rejected.
It would also seem that the Cabinet Secretary, the National Assembly and Senate all focused on very targeted and specific stakeholders. The criteria used to hand-pick the stakeholders was not explained. Moreover, there was no justification provided for the lack of proactive efforts to involve a broader cross-section of the population, thereby ensuring inclusivity in the process. That focused approach ultimately limited the expression of diverse viewpoints.
In all the notices sent out to public to give their written memoranda, the print used was rather small and barely legible. The same failed to meet the threshold for clarity and transparency. A good percentage of the Kenyan populace were illiterate or had no access to internet and could not afford newspapers. The Bills were going to equally affect them and as such their input was critical. There ought to have been a deliberate effort to reach out to them.
The NHIF mainly targeted employed Kenyans and those willing to join the scheme. A majority of the population never subscribed to NHIF and only did so when critically ill and admitted in hospital. The SHIF on the other hand targeted every citizen and made it mandatory for everyone to register and be paid up. There were dire sanctions under sections 26(5) and 27(4) for non-compliance.
When legislation was poised to have such profound implications, it was crucial for Parliament to ensure that the public received sufficient notice and opportunities to express their views. Ultimately, those Acts were intended for the people, whose sovereignty was eloquently affirmed in the preamble of the Constitution of Kenya with the resolute declaration, "We the People of Kenya."
It was no longer business as usual where the leaders of the country were presumed to know what was suitable for the people. They had to consult the people before making decisions that affect them. All the impugned Acts failed to meet the threshold and criteria set out by the Supreme Court and the bare minimum standards set for public participation. They fall short of the constitutional criteria for public participation.
The objective of the Statutory Instruments Act was to provide for the making, scrutiny, publication and operation of statutory instruments. The Act applied to those instruments that were made pursuant to an Act of Parliament and not to Acts of Parliament themselves. Although Acts of Parliament and statutory instruments were both forms of legislation, they differed in their nature, creation and application. Acts of Parliament were primary legislations which set out broad legal principles and frameworks. Statutory instruments, on the other hand, took the form of secondary or delegated legislation and were laws made by individuals or bodies under powers given to them by an Act of Parliament. Those instruments allowed for more detailed provisions to be made within the framework set out by the primary legislation.
Acts of Parliament were enacted pursuant to Parliament’s constitutional mandate under Articles 94 and 95 of the Constitution. Part III of the Act which provided for regulatory impact assessments was of no relevance to the 3 impugned Acts. The provisions of section 11 which required laying of statutory instruments before Parliament within seven (7) sitting days after the publication of a statutory instrument did not also apply to the 3 statutes.
All power that was exercised by each of the arms of government must be exercised following the Constitution as stated in Articles 1(1) and 1(3). Article 2 was a further reminder that the Constitution bound all state organs, an interdict that was further emphasized in Article 93(2) specifically to the National Assembly and Senate to perform their functions per the Constitution. It was not in the space of the Judiciary to interfere with the role of Parliament in the exercise of its constitutional mandate. There was a need to avoid judicial overreach. However, it was within the mandate given under the Constitution for the judiciary to ensure compliance with Constitutional tenets.
Courts were called to act with restraint in interfering with the processes of other organs in the exercise of their mandate. However, in exercising discretionary powers under the Standing Orders or any other rules for that matter, Parliament must remember that it was bound by the principles of governance as set out in Article 10 of the Constitution. Of particular importance was the need to ensure the participation of the people, transparency and accountability in the legislation-making process.
The primary objective of the publication of Bills was to uphold constitutional imperatives by ensuring public awareness of new legislative proposals. That transparency enabled citizens to grasp the legislative agenda and the substance of a proposed Bill, thereby fostering transparency and accountability in the legislative process. Further, publication ensured that citizens had ample opportunity to thoroughly study and scrutinize any Bill well in advance, facilitating meaningful participation and input from them.
The National Assembly published 2 out of the 3 Bills relating to the impugned Acts and reduced the period of publication by more than half of the period required under the Standing Orders. Though well-intentioned, the National Assembly seemed to be more concerned with the urgency to enact the Bills without taking into account the ramifications of such a drastic reduction of time and the ripple effect that it had on the overall process.
Parliament had the discretion to reduce the period of publication of Bills under the Standing Orders. That discretion, however, must be exercised reasonably, judiciously and within proportionality. Parliament recognized the significance of the 3 impugned legislations, and hence the more reason to provide adequate time for public notification and thorough scrutiny of the Bills. By shortening the publication period to just 6 and 3 days, respectively, Parliament did not exercise reasonable or proportionate judgment given the nature of the Bills.
Article 110(3) was couched in mandatory terms. A Bill was considered to concern counties if it affected the functions and powers of the county governments, or if it related to any matters that impacted county governments. That determination was crucial because it affected how the Bill was processed and which House had the primary responsibility. The need for prior consensus also ensured that the correct legislative process and clarity in the legislative proceedings were followed by the Houses of Parliament.
The rationale behind the resolution of the Speakers was to help in determining the House that would handle the Bill. The National Assembly, however, appeared to imply that since the Memorandum and Objects and Reasons of the impugned laws had already stated that they were Bills concerning counties, they needed not to wait for the concurrence of the Speakers and that the Bills were in any case considered by both Houses. The concurrence of the Speakers of the 2 Houses with respect to Bills concerning counties was mandatory. An examination of the record clearly showed that there was blatant disregard of Article 110(3) by both Houses of Parliament in the haste to have the impugned legislation passed.
Despite the Houses presuming concurrence between the Speakers as implicit, they were obligated to adhere strictly to the constitutional procedure. The enactment of the 3 impugned legislation should not have been rushed, especially at the cost of disregarding explicit provisions of Article 110(3) of the Constitution. In doing so, both the Senate and the National Assembly failed to demonstrate the requisite diligence and responsibility expected in legislative processes. By proceeding in haste, they overlooked procedural safeguards, which were fundamental to ensuring the integrity and legality of legislative actions.
Articles 28, 30(1), and 32 of the Constitution provided for the right to dignity and integrity; freedom from servitude and slavery, and the freedom of conscience, religion, and thought . It could not be seen how the provisions of the law cited from the impugned legislation would infringe on the dignity of Kenyans, nor subject them to servitude and slavery. The fund introduced by SHIA was a form of tax. It was misleading to state that the unborn children will be loaned monies which loans would subject them to slavery and servitude. Those to be given loans were those in the informal sector who would apply for such loans. The indigents and children would have their contributions paid for by the government free of charge. Accordingly, it could not be seen how the said provisions of the Constitution have been infringed by the impugned legislation.
It was clear from sections 26 (5) and 27 (4) of the SHIA that some rights had been limited and their enjoyment was pegged on compliance with the impugned Acts. In particular, section 26(5) set compliance with the Act as a pre-condition to accessing services both at county and national government. The petitioner did not demonstrate how the provisions infringe or were likely to infringe or violate the right to life, right to property, and political rights.
The primary objective of the 3 legislation was to give effect to Article 43(1)(a) of the Constitution. There was evidence that the former legal framework (NHIF) had failed to realize those rights and in any event, it was unsustainable. The evidence on record showed that the principle of solidarity was lacking in the former legal framework under NHIF. That continued voluntary contribution was unsustainable. It was evident that unless some sort of compulsion or sanction was applied, then the realization of the rights under Article 43(1)(a) would be a mirage.
The objectives of sections 26(5) and 27 of SHIA were noble. They were aimed at bringing solidarity and equity in terms of subscription and contribution to the fund and at the same time ensuring that the benefits were spread across the population and were both sustainable and a reality. Therefore, applying the principles for limitation under Article 24 on the reasonableness, the nature of the right, the extent of the limit, and the proportionality, the proposed limitation under Article 6(3) and 12(1) was reasonable, justifiable, and proportionate.
However, to the extent that sections 26(5) and 27(4) of SHIA had not made exceptions to the right to emergency medical services, the same could not stand the test of constitutionality. They offended Article 43(2) of the Constitution. That was because the precondition set out in those 2 provisions infringed on the right to access to emergency services on one hand while it was the same right that the state aspired to realize with the impugned Acts.
The import of the impugned provisions would mean that if a person was rushed to hospital in whatever state, including an unconscious state, he/she would only access emergency treatment upon proof of compliance. The right to life and emergency services should have and ought to have been shielded and to the extent that the provisions did not shield or exempt the right to emergency treatment set out in Article 43(2) they were unconstitutional.
The Commission must be consulted even though it may or may not set out a recommendation on the proposed legislation. Indeed Article 205(1) was couched in mandatory terms. There was no evidence to show that the Commission of Revenue was consulted or invited to make any recommendations on the 3 impugned legislations. The failure by either of the Houses (the National Assembly and Senate) to consult the Commission on enacting legislation that related to financial matters concerning county governments was unconstitutional. The consultations were crucial for informed decision-making and ensuring fiscal responsibility and equity. It was therefore quite imprudent for the 2 houses to reduce the Commission into a bystander in such critical pieces of legislation.
The Social Health Insurance Fund, the Primary Health Fund, and the Emergency Care Insurance Fund were all established under sections 25, 20, and 28 of the Act respectively. By dint of section 5 of the Act, it was a function of the Authority to manage the funds and to develop guidelines for the operations and implementation of the Funds established under the Act. However, the operationalization of the specific sections was yet to be effected by way of regulations. There was reason for apprehension because the existing section was introduced ignoring a key principle under Article 201(a) which emphasized on the need for openness, accountability, and public participation in financial matters.
The provisions of Article 201 of the Constitution must be understood and interpreted against a histography of Kenyan society. The drafters of the Constitution were certainly intent on representing a departure from a past where public financial matters were a preserve of closed dialogue in opaque rooms only rubberstamped by Parliament. Section 38 failed the test under Article 201(a) of the Constitution and was therefore unconstitutional.
The effort of the Cabinet Secretary in attempting to realize the social economic rights provided under Article 43 was commendable. The research and industry shown in coming up with the pieces of legislation were also commendable. The objectives and purpose of the impugned legislation were to have a progressive, transformative, and huge impact on the realization of universal healthcare for the country. However, the haste with which they were enacted infringed on the national values and principles of the Constitution. In as much as it was a noble intention, the constitutional tenets that bound Kenya could not be disregarded. Article 20 required Kenyans to promote and protect the values that underlie an open and democratic society and the spirit, purports, and objects of the Bill of Rights.
Being cognizant of the importance of the impugned Laws and the input that had already gone into their enactments and recognizing the purport of the enactments as far as realization of the rights under Article 43 of the Constitution, Parliament was allowed to redeem itself and save the Laws. The breaches that tainted the Laws were redeemable within and could be corrected.

Petition allowed.
Orders

Parliament ought to undertake sensitization, adequate, reasonable, sufficient, and inclusive public participation under the Constitution before enacting the said Acts and amending the unconstitutional provisions in terms of the judgment.
Compliance with (i) above be undertaken within 120 days of the date of the judgment.
Within that period, the Acts shall remain suspended.
In default of (i) and (ii) above, on October 11, 2024, the following relief shall take effect forthwith: -
1. A declaration was thereby issued that the entire Social Health Insurance Fund Act, 2023; the entire Digital Health Act, 2023 and the entire Primary Health Act, 2023 were all unconstitutional for the reasons set out in the Judgment and therefore invalid, null and void.
Each party to bear their own costs.

Kenya Law Case Updates Issue 002/24-25
Case Summaries


CONSTITUTIONAL LAW	No law could exclude or authorise the exclusion of a State officer from payment of tax by reason of; the office held by that State officer; or the nature of the work of the State officer Headnote: The main issue involved the question of exemption of Members of the National Assembly of the 10th Parliament from payment of tax. The court held that If the intention was to exclude the application of Article 210(3) of the Constitution of Kenya, 2010 pending the holding of the first general elections under the new Constitution, it would have been expressly provided for in the Sixth Schedule, which on the contrary provided in section 7 that all existing laws were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution, and that in the event of any conflict, the Constitution would prevail. It was also settled that there could be no legitimate expectation that was contrary to the law. In that respect, Article 210(3) provided that no law could exclude or authorise the exclusion of a State officer from payment of tax by reason of; the office held by that State officer; or the nature of the work of the State officer. Clerk of the National Assembly of Kenya & another v Njoya & 17 others & 3 others (Civil Appeal 323 of 2019) [2024] KECA 524 (KLR) (9 May 2024) (Judgment) Neutral citation: [2024] KECA 524 (KLR) Court of Appeal at Nairobi P Nyamweya, A Ali-Aroni, LA Achode, JJA Reported by Robai Nasike Sivikhe Download the Decision *Constitutional Law* – public finance – imposition of tax – application of laws on taxation to the Members of the National Assembly of the 10th parliament – privileges and immunities of the Members of the National Assembly of the 10th parliament especially concerning payment of tax – whether the privileges and immunities of the Members of the National Assembly of the 10th Parliament and its committees were extended until the expiry of their term, because of the existence and correlation of the various transitional legislation – whether the transitional provisions that begot a legitimate expectation on the Members of the National Assembly in the 10th Parliament not to lose the existing privileges and immunities, including the privileges of insulation from paying taxes until the expiry of their terms – whether the Members of the National Assembly of the 10th parliament were exempted from paying tax – Constitution of Kenya, 2010, articles 210 (3), 262, 264 and section 6 of the sixth schedule. *Law of Evidence* admissibility of evidence – reliance on facts that were contested and ought to be proved – where the facts relied on, emanating from a newspaper article and circular, had been admitted as evidence without contest from the affected parties – whether the newspaper article and circular admitted at the trial court as uncontested evidence of facts could be rendered inadmissible by the 1st appellate court – Evidence Act, sections 35, 61 and 109. Brief Facts At the High Court, the petitioner sought an interpretation, following the promulgation of the new Constitution on August 27, 2010, as to whether the Members of Parliament were state officers contemplated under Article 210 of the Constitution and under an obligation to pay tax under the said Article as read together with Article 201 and Article 230 of the Constitution; if so whether the Head of Civil Service and Secretary to the Cabinet, the Attorney General, the President, and the Prime Minister had the power or the authority to exempt any ‘State Officer’ from payment of tax; whether the Constitution or the transitional clause saved or exempted the Members of Parliament from payment of tax; whether it would be illegal and unconstitutional for the Government to settle the tax burden of the Members of Parliament using public resources or monies drawn from the Consolidated Fund or from any other monies or funds derived from tax payers’ money; whether in the use of public resources and management of public finances state officers were bound by the provisions as well as the guiding principles of public finance set out in Article 201 (a), (b), (c), (d) and (e) of the Constitution; and whether any decision to increase salaries of the Members of Parliament prior to the establishment of the Salaries and Remuneration Commission or by any other entity other than that Commission was in breach of Article 230 of the Constitution. The High Court, after considering the purpose of transitional provisions in legislation and the nature of taxation legislation, made the following key findings. Firstly, the National Assembly Remuneration Act must, by virtue of section 7 of the Sixth Schedule, be brought into conformity with the Constitution, and it was not possible to claim that Members of the National Assembly had a right not to pay taxes on their allowances. Secondly, exemption from taxation was a privilege and not part of the rights envisaged by section 6 of the Sixth Schedule, and Article 210 of the Constitution was clear that a waiver or exemption from taxation must be legislated and must also be reported to the Auditor General. Thirdly, Members of the National Assembly were aware of the contents of the new Constitution, and there was thus no legitimate expectation that Members of the National Assembly would be exempted from payment of taxes. Fourthly, Members of Parliament fell within the definition and import of Article 210. Aggrieved by the above findings of the High Court, the appellants lodged the instant appeal that sought to set aside the judgement of the High Court. Issue: Whether the privileges and immunities of the Members of the National Assembly of the 10th Parliament and its committees were extended until the expiry of their term, because of the existence and correlation of the various transitional legislation Whether the transitional provisions that begot a legitimate expectation on the Members of the National Assembly in the 10th Parliament not to lose the existing privileges and immunities, including the privileges of insulation from paying taxes until the expiry of their terms Whether the Members of the National Assembly of the 10th Parliament were exempted from paying tax Whether the newspaper article and circular admitted at the trial court as uncontested evidence of facts could be rendered inadmissible by the 1st appellate court Held: The duty of the first Appellate Court was to reconsider the evidence, evaluate it and draw conclusions of the facts and law. The first appellate court will depart from the findings by the trial Court only where they were not based on evidence on record; where the said Court was shown to have acted on wrong principles of law or where its discretion was exercised injudiciously. The appellants had taken issue with the non-production of the circular relied upon by the 1st to 18th respondents in the trial Court, and their reliance on newspaper articles as proof of the existence of the circular and its contents. The appellants specifically relied on section 35 of the Evidence Act which required documents to be produced by their makers, and section 109. Therefore, for the burden of proof to arise, a fact had to be in issue, that was, it must be a fact from which, either by itself or in connexion with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suitor proceeding, necessarily follows. Secondly, the evidence adduced must be sufficiently useful to prove the fact in issue, that was, it must be of probative value. It was not an issue in the trial Court that the appellants were seeking not to pay tax, and in effect, their case and response was that there was no legal basis for them to pay tax, as article 210 of the Constitution was not yet applicable, and that the previous taxation regime, as well as privileges and immunities of the members of the National Assembly, was preserved until expiry of the term of the National Assembly. Section 61 of the Evidence Act in that respect provided that any facts which were admitted by parties or which were deemed to have been admitted by their pleadings, need not be proved in any civil proceeding. The appellants had not taken issue with the facts set out in the newspaper reports in their pleadings. The admissibility of the newspaper reports was never raised by the appellants in the trial Court. Article 262 of the Constitution of Kenya, 2010 provided that the transitional and consequential provisions in the Sixth Schedule shall take effect on the effective date, which was August 27, 2010, and article 264 provided that the Constitution in force immediately before the effective date shall stand repealed on the effective date, subject to the Sixth Schedule. The provisions of the repealed Constitution whose operation was saved by the Sixth Schedule until the first general elections that were to be held under the 2010 Constitution were sections 30 to 40 and 43 to 46, which provided for the National Assembly’s composition, the exercise of its legislative power, qualifications of its members, resolution of disputes as regards its membership, and for the Parliamentary Service Commission. Sections 48 to 58 of the repealed Constitution on the conduct of proceedings in the National Assembly were also saved, and it was notable in that respect that section 57 provided that Parliament could, provide for the powers, privileges and immunities of the Assembly and its committees and for purposes of the orderly and effective discharge of the business of the National Assembly. A plain reading and contextual interpretation of the saved provisions led to the conclusion that they were limited to those necessary for purposes of discharge of the business of the National Assembly, including any corresponding provisions in the National Assembly Remuneration Act and the National Assembly (Powers and Privileges) Act. That interpretation likewise applied to the provisions of section 10 of the Sixth Schedule on the saving of the National Assembly. As regards the saving of rights and obligations of the Government by section 6 of the Sixth Schedule, it was notable that the repealed Constitution in sections 1 and 1A provided that Kenya was a sovereign Republic which shall be a multiparty democratic state, while the Constitution of 2010 defined the Republic as the Republic of Kenya and the state as the “collectivity of offices, organs and other entities comprising the government of the Republic under the Constitution. It was evident that the rights and obligations envisaged to be saved under the section were not private rights as alleged by the appellants, but the collective rights and obligations of the state arose from the need for the continuity of governmental or state functions. If the intention was to exclude the application of Article 210(3) of the Constitution of Kenya, 2010 pending the holding of the first general elections under the new Constitution, it would have been expressly provided for in the Sixth Schedule, which on the contrary provided in section 7 that all existing laws were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution, and that in the event of any conflict, the Constitution would prevail. It was also settled that there could be no legitimate expectation that was contrary to the law. In that respect, Article 210(3) provided that no law could exclude or authorise the exclusion of a State officer from payment of tax by reason of; the office held by that State officer; or the nature of the work of the State officer. The purpose of transitional provisions was to modify the application of the substantive provisions and not to exclude or replace the substantive provisions of the law, and even then, the said modification operated for a limited period. The High Court did not err in its interpretation of the provisions of the Sixth Schedule in so far as they related to the Members of the National Assembly of the 10th Parliament, particularly with respect to the payment of tax. Appeal dismissed. No orders as to cost.
CONSTITUTIONAL LAW	The process of deployment of the National Police Service to Reciprocating Countries should be undertaken per existing Law. Headnote:The main issue revolved around the constitutionality of the decision to deploy the National Police Service to Haiti. The court held that it was a great honour for Kenya to offer to lead the Multinational Security Support (MSS) mission for Haiti. Similarly, Kenya had an obligation to join the community of nations in assisting Haiti as part of its international obligations. However, any endeavour towards that end must be in accord with the Constitution and the law. On the other hand, the effort and, in particular, the attempt to deploy police officers to Haiti, must fail for lack of constitutional and legal foundation. On the other hand, sections 107,108 and 109 of the National Police Service were constitutional. There was no inconsistency between the sections and the Constitution Aukot & 2 others v National Security Council & 5 others; Law Society of Kenya (Interested Party) (Petition E389 of 2023) [2024] KEHC 336 (KLR) (Constitutional and Human Rights) (26 January 2024) (Judgment) Neutral citation: [2024] KEHC 336 (KLR) The High Court at Nairobi EC Mwita, J Reported by Robai Nasike Sivikhe Download the Decision *Constitutional Law* – constitutional petitions – the institution of constitutional petitions – the doctrine of ripeness vis-à-vis doctrine of exhaustion – claim that the constitutional petition was instituted prematurely – whether parliament as an alternative mechanism for dispute resolution, could exhaustively determine and offer appropriate remedies to the issues of law raised within the petition – whether the claim consisted of allegations of violation or threat to the constitution, which fell under the purview of the High Court – Constitution of Kenya, 2010, articles 2, 3 (1) and 165 (3) *Constitutional Law* – constitutionality of statutes – constitutionality of sections 107, 108 and 109 (Part XIV) of the National Police Service Act – principles to consider when determining the constitutionality and validity of an Act – whether sections 107, 108 and 109 (Part XIV) of the National Police Service, which provides for a mechanism under which reciprocal arrangements and procedures for deployment of the National Police out of the country or into the country, was unconstitutional – whether the National Police Service functions within the country and its officers could not be deployed outside Kenya – whether the decision to deploy the National Police Service to another country, specifically Haiti, was unconstitutional – Constitution of Kenya, 2010, articles 2 (4), 240, 243 and 240 (8) *Civil Practice and procedure* – – parties to a suit – inclusion of a president as a party to a suit – presidential immunity – where the president was still in office – whether a sitting president could be included as a party to a suit, in his personal or official capacity – Constitution of Kenya, 2010, Article 143 (2) Brief facts: In July 2023, the Government announced that Kenya was ready to deploy 10000 police officers to Haiti to assist in curbing insecurity in that country. On October 2, 2023, The UN Security Council passed Resolution 2699 (2023) approving the deployment of multinational security support to Haiti to be led by Kenya. The petitioner filed the constitutional petition, arguing that the decision to deploy police officers to Haiti was unconstitutional. The petitioners assert that police officers could not be deployed outside the country and that it was only the Council that could deploy defence forces outside the country with approval of Parliament. The decision was also made without public participation, in breach of the constitution. The petitioners further challenged the constitutionality of sections 107,108 and 109 of the National Police Service Act. It was the petitioners’ case, that the National Police Service was a national service that operated within Kenya and could not be deployed outside the country. The petitioners were of the view that by allowing deployment of the service outside the country under reciprocal arrangements, the sections were inconsistent with articles 240(8) and 243(3) of the Constitution which only allowed Kenya Defence Forces to be deployed outside Kenya. The petitioners also contended that there was no reciprocal arrangement between Kenya and Haiti, thus the respondents’ decision was unlawful since there was no request from the government of Haiti for the deployment to that country even on a reciprocal arrangement. The petitioners invited the Court to appreciate the distinction between “Forces” and “Service” in articles 241 and 243 of the Constitution and the fact that the functions of the national forces and national police service were distinct. In the petitioner’s view, Article 240 (8) was clear that only the national forces could be deployed outside Kenya. Issues: Whether a sitting president could be included as a party to a suit, in his personal or official capacity Whether parliament as an alternative mechanism for dispute resolution, could exhaustively determine and offer appropriate remedies to the issues of law raised within the petition Whether the claim consisted of allegations of violation or threat to the constitution, which fell under the purview of the High Court Whether sections 107, 108 and 109 (Part XIV) of the National Police Service, which provides for a mechanism under which reciprocal arrangements and procedures for deployment of the National Police out of the country or into the country, was unconstitutional Whether the National Police Service functions within the country and its officers could not be deployed outside Kenya Whether the decision to deploy the National Police Service to another country, specifically Haiti, was unconstitutional Held:: The President could not be sued, while in office, for anything done or not done while in that office. For that reason, the petitioners could not lawfully include the name of the President in the proceedings, whether in his personal or official capacity. The President’s name was struck out from the proceedings. A reading of the petition filed and the reliefs sought showed that the petition sought the interpretation of the Constitution and the law, to determine whether the position taken by the petitioners was correct or not. Whether police officers could be deployed outside Kenya and whether the impugned sections were unconstitutional, were issues that only the Court could determine and not Parliament. Even if the respondents argued that a decision to deploy police officers to Haiti had not been made when the petition was filed, that alone could not make the petition premature or violate the doctrine of ripeness. The Court would defer jurisdiction because of the doctrine of exhaustion if, the alternative body, in the instant case, Parliament, had to be in a position to give an effective remedy to the petitioners’ claim(s). Where the remedy would be inadequate or ineffective, the Court could not defer jurisdiction. In the instant case, Parliament could not determine whether the impugned sections were unconstitutional. Parliament could not also determine whether the deployment of police officers outside Kenya was unconstitutional. Parliament’s mandate was to approve or decline to approve the deployment of police officers to Haiti. It could not determine the constitutionality of the action. Unlike Parliament, the Constitution had, under Article 165 (d) (i) and(ii), conferred on the Court jurisdiction to check governmental action and it was the solemn duty of the Court to keep the organs of state within the limits of the power and mandate conferred on them by the Constitution, determine whether any law was inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or any law was inconsistent with or in contravention of the Constitution or the law. Therefore, it was within the mandate of the Court to determine the issues raised in the petition in the exercise of its jurisdiction. Even if it were possible for the Court to defer jurisdiction because Parliament had not decided to approve deployment, Parliament would still not determine the rest of the issues in the petition. The issues in the petition could not be split so that some were dealt with by the Court and others by Parliament. Where there was an allegation of violation or threat to violate the Constitution, it was within the Court’s mandate to determine the issue and not any other body. The petitioners instituted the instant petition on the strength of Article 2-supremacy of the Constitution and Article 3 which obligated every person to respect, uphold and defend the Constitution, calling on the Court to respond to the issues in the petition in the exercise of its jurisdiction in article 165(3). The petition was not premature and did not offend the doctrines of ripeness, exhaustion or separation of powers. The petitioners properly approached the Court, heeding the call in Article 3 (1) on their obligation to defend the Constitution. A statute or statutory provision is presumed to be constitutional and the burden is on the person alleging constitutional invalidity to prove that invalidity. The Court should also examine the purpose or effect of the statute or provision. The purpose of enacting legislation or the effect of implementing that legislation could lead to nullification of the statute or its provision if found to be inconsistent with the Constitution. Article 243 which established the National Police Service stated that National Police Service was a national service and was to function throughout Kenya. Article 243 (3) did not state that police officers serving within the National Police Service could not be deployed outside Kenya but that the service shall function throughout the country. The import of Article 243(3) was that the National Police Service would function in all areas within Kenya. As a national service, the National Police Service served the whole country and not specific areas, counties or regions., otherwise, it would not be a national service. The National Police Service Act gave effect to Articles 238, 239, 244, and 247. None of those articles stated in express terms or by implication, that police officers could not be deployed outside Kenya. The petitioners, having not shown that those articles expressly or by necessary implication prohibited the deployment of police officers outside Kenya, could not rely on article 243(3) to support their argument that police officers could not be deployed outside the country, simply because the service functioned throughout Kenya. The language used in Article 243(3) did not support the petitioners’ assertion. From a reading of Article 240(8), there was nothing that prohibited the deployment of police officers outside Kenya. Article 243(4) mandated Parliament to enact legislation to give full effect to Article 243. Parliament then enacted the National Police Service Act in response to that mandate. Sections 107, 108 and 109 (Part XIV) of the Act provided for reciprocity, and when and under what circumstances National Police Service officers may be deployed outside Kenya. There was no inconsistency between the impugned sections and the articles of the Constitution that they claimed they were inconsistent with. Where it was alleged that a statutory provision was inconsistent with the constitution, the Court would embark on fact-finding by laying the sections against the articles of the Constitution said to be offended and determine the infirmity, if any. Invalidity may be on the purpose for which the statutory provision was enacted or the effect of its implementation. If the Court found infirmity or inconsistency in the challenged section(s), it had no option but to declare the section(s) invalid as decreed by Article 2(4). The petitioners had not demonstrated any invalidity in the impugned sections. In any case, the import of the impugned sections was to allow mutual reciprocity between Kenya and other countries. Section 109 mandated the President to request a reciprocating country to send police officers to Kenya where circumstances similar to those under section 108 existed. The benefit would be to both reciprocating countries. There was no inconsistency with the Constitution. Article 240 established the Council consisting of the President; the Deputy President; the Cabinet Secretary responsible for Defence; the Cabinet Secretary responsible for Foreign affairs; the Cabinet Secretary responsible for Internal security; the Attorney-General; the Chief of Kenya Defence Forces; the Director-General of the National Intelligence Service and the Inspector-General of the National Police Service. The Council exercised supervisory control over national security organs, (Kenya Defence Forces, National Intelligence Service and National Police Service), and performed any other functions prescribed by national legislation. The objective and goal of article 240(8) was to provide for the security organ(s) that could be deployed outside the country, by whom and under what circumstances. In that spirit, the article identified “national forces” for deployment out of the country and assigned the mandate to deploy those “forces” to the Council, subject to approval by Parliament. The forces could only be deployed out of the country for regional or international peace or other support operations. The mandate conferred on the Council was to deploy “national forces” outside Kenya with the approval of Parliament. The words, national forces, used in the Constitution were not defined. When called upon to interpret words used in the constitution or statute, the general principle was that if the words used were unambiguous, they should be given their ordinary meaning. In interpreting the statute, both text and context were important. They were the basis of interpretation. Kenya had no forces other than the Defence Forces, comprising Kenya Army, Kenya Air Force and Kenya Navy, otherwise called the military. In the three national security organs mentioned in article 239(1), only Kenya Defence Forces were “forces.” The other two national security organs, (National Intelligence Service and the National Police Service) were service. From the constitutional text, one could not legitimately argue that national security organs were the national forces, even though heads of the three security organs were members of the Council. One could not also argue that national forces included the National Intelligence Service and the National Police Service. The Constitution permitted the deployment of “forces”, “National forces” as used in article 240(8) meant the Kenya Defence Forces. Hence the Council could, with the approval of Parliament, deploy the Kenya Army, Kenya Air Force or Kenya Navy, (as national forces), outside the country for regional or international peace or other support operations, depending on the mission needs. If the intention of the framers of the Constitution was that the Council should deploy Defence forces, National Intelligence Service and National Police Service, they could have easily stated so and mandated the Council to deploy national forces and services, or national security organs, to capture that intention. In that respect, the Council could not deploy National Police Service outside the country under article 240(8) because the mandate of the Council was to deploy Forces, (Kenya Defence Forces) for regional or international support operations and not National Police Service. The Council could only deploy Kenya Defence forces under article 240(8) finds support in the Kenya Defence Forces Act, 2012. The Kenya Defence Forces Act makes it clear, using the same words used in the Constitution, that the Council may deploy Defence Forces outside the country with the approval of Parliament. When enacting this Act, Parliament appreciated that article 240(8) permits the Council to deploy Defence forces outside the country and captured that intention in the Kenya Defence Forces Act. Unlike the Kenya Defence Forces Act, section 6(2) of the National Police Service Act provides that the Council may deploy the service (National Police Service) or any part of the service in the defence of Kenya during an emergency. That was the only time the National Police Service Act mandated the Council to deploy the National Police Service. Section 6(3) was also clear that for purposes of deploying the Service in case of emergency, “the procedure under article 58 of the Constitution shall apply.” Other than as provided under section 6(2), (3), the Council had no mandate to deploy the National Police Service even within the country. Parliament did not import Article 240(8) into the National Police Service Act or National Intelligence Service Act as it did with the Kenya Defence Forces Act. In not doing so, Parliament recognized that the Constitution did not contemplate deployment of those services outside the country. Article 240(8) did not preclude the deployment of National Police Service outside Kenya. Similarly, section 6(1) did not preclude deployment of the service outside the country. Sections 107 and 108, (Part XIV) of the Act, properly provide how the service may be deployed outside the country, when and by whom. Article 240(8) did not mandate the Council to deploy police officers outside Kenya. Deployment should be as provided for in Part XIV of the Act and only to a reciprocating country. Although no further legislation was contemplated to give effect to article 240(8) on the deployment of national forces; it could not be said that Parliament was wrong when it enacted the Kenya Defence Forces Act, reiterating the words in article 240(8) that the Council could deploy Defence force outside Kenya, subject to parliamentary approval. It was a great honour for Kenya to offer to lead the Multinational Security Support (MSS) mission for Haiti. Similarly, Kenya had an obligation to join the community of nations in assisting Haiti as part of its international obligations. However, any endeavour towards that end must be in accord with the Constitution and the law. The effort and, in particular, the attempt to deploy police officers to Haiti, must fail for lack of constitutional and legal foundation. Sections 107,108 and 109 of the National Police Service were constitutional. There was no inconsistency between the sections and the Constitution. The National Security Council had no constitutional or legal mandate to deploy the National Police Service outside Kenya under Article 240(8) or any other law. Article 2(4) of the Constitution invalidated any act or omission that contravened the Constitution. In that regard, any purported decision by the National Security Council to deploy police officers outside Kenya and any other action taken by any other state organ or state officer in furtherance of that decision was invalid, null and void. Orders A declaration was issued that sections 107,108 and 109 of the National Police Act which provided for the deployment of police officers outside the country under reciprocal arrangements to reciprocating countries, were constitutional and valid. A declaration was issued that the National Security Council had no mandate to deploy police officers outside Kenya under article 240(8) of the Constitution or any other law. A declaration was issued that any decision by any state organ or state officer to deploy police officers to Haiti, and any further action or steps taken by a state organ or state officer in furtherance of such decision, contravened the Constitution and the law and was therefore unconstitutional, illegal and invalid. An order was hereby issued prohibiting the deployment of police officers to Haiti or any other country, otherwise than in compliance with Part XIV-sections 107 and 108 of the National Police Service Act. No order on costs.

Kenya Law Weekly Issue 002/24-25

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