The National Government Constituencies Development Fund Act of 2015 as amended in 2022 and 2023 is unconstitutional.

 

Headnotes: The petitioners challenged the National Government Constituencies Development Fund Act, 2015, arguing it violated constitutional principles of devolution, separation of powers, and prudent financial management. They claimed the Act improperly involved Members of Parliament in fund oversight, duplicated county government functions, and bypassed Senate consultation. The High Court found the Act unconstitutional, holding that it undermined devolution by intruding into county functions, created inefficiency through duplication, and violated the doctrine of separation of powers by allowing MPs to oversee projects. The Court also ruled the Act breached Articles 201 and 205 by failing to ensure prudent financial management and bypassing Senate consultation.

Gikonyo & another v National Assembly of Kenya & 4 others; Council of Governors & 3 others (Interested Parties) (Constitutional Petition 178 of 2016) [2024] KEHC 10886 (KLR) (Constitutional and Human Rights) (20 September 2024) (Judgment)

Neutral Citation: [2024] KEHC 10886 (KLR)

High Court at Nairobi

K Kimondo, RE Aburili, and M Thande

September 20, 2024

Reported by John Ribia

Statutes – constitutionality of statutes – constitutionality of the National Government Constituencies Development Fund Act, 2015 – where a constitutional petition challenging the constitutionality of an Act was filed and amendments were made to the Act there after – effect of amendments on the constitutional petition - whether amendments to the National Government Constituencies Development Fund Act, 2015 in 2022 and 2023 that were made in 2022 and 2023 after the instant petition was filed rendered the petition moot, particularly regarding provisions that were repealed or substantially altered.

Devolution – county governments – financial autonomy of county governments – National Government Constituency Development Fund vis-à-vis the financial autonomy of statutes - whether the National Government Constituencies Development Fund Act, 2015 undermined the constitutional principles of devolution by encroaching on the functional and financial autonomy of county governments –

Constitutional Law – basic structure doctrine – applicability of the basic structure doctrine in Kenya – whether the basic structure doctrine was applicable in Kenya - whether the National Government Constituencies Development Fund Act, 2015 infringed on the basic structure of the Constitution by effectively creating a third level of government – Constitution of Kenya articles 89 and 174

Constitutional Law – separation of powers – Legislature vis-à-vis the Executive – management of the Constituency development Fund by Members of Parliament vis-à-vis the financial autonomy of county governments - whether the involvement of Members of Parliament in the implementation and oversight of the Fund under the National Government Constituencies Development Fund Act, 2015 contravened the doctrine of separation of powers by blurring the distinction between legislative and executive functions – Constitution of Kenya articles 93, 95, 129, 130, and 131; National Government Constituencies Development Fund Act (cap 414A) sections 3(k) and (l), 4(8), 8, 11, 14, 15(4), 16, 19, 22, 23(1), 24(b), 25, 26(2), 27(10), 31, 36, 43, 48, 50, 52, and 53; Public Finance Management Act (cap 412A) section 24(4)

Constitutional Law – national values and principles – prudent and responsible financial management – allocation of funds under the Constituency Development Fund – allegation of duplication of roles as the functions of the Fund were handed to the county governments under the Fourth Schedule to the Constitution - whether the allocation of funds under the National Government Constituencies Development Fund Act, 2015 complied with the constitutional principles of prudent and responsible financial management, particularly in ensuring transparency, accountability, and avoidance of duplication of funding structure – Constitution of Kenya article 201; Contingency and County Emergency Funds Act (cap 412A) section 10(2); National Government Constituencies Development Fund Act (cap 414A) sections 3(k) and (l), 4(8), 8, 11, 14, 15(4), 16, 19, 22, 23(1), 24(b), 25, 26(2), 27(10), 31, 36, 43, 48, 50, 52, and 53; Public Finance Management Act (cap 412A) section 24(4)

Constitutional Law – constitutional procedures – allocation of revenue to county governments – role of Senate – role of the Commission of Revenue Allocation – whether the Constituency Development Fund complied with the above procedures - whether the enactment of the National Government Constituencies Development Fund Act, 2015 adhered to constitutional procedures, including consultation with the Senate and the Commission on Revenue Allocation, given its impact on county governments and revenue allocation – Constitution of Kenya article 205; National Government Constituencies Development Fund Act (cap 414A) sections 3(k) and (l), 4(8), 8, 11, 14, 15(4), 16, 19, 22, 23(1), 24(b), 25, 26(2), 27(10), 31, 36, 43, 48, 50, 52, and 53; Public Finance Management Act (cap 412A) section 24(4)

Brief facts

The petitioners filed a constitutional petition challenging the constitutionality of the National Government Constituencies Development Fund Act, 2015 (the 2015 Act/the Act). The Act was enacted to replace the Constituencies Development Fund Act, 2013, which had been declared unconstitutional. The petitioners argued that the 2015 Act violated several constitutional principles, including the doctrine of separation of powers, the principle of devolution, and prudent management of public finance.

The petitioners contend that the 2015 Act allowed for the allocation of funds to the National Government Constituencies Development Fund (NGCDF) prior to the vertical division of revenue between the National and county Governments. They alleged that the practice contravenes articles 201 and 203 of the Constitution, which outlined principles of public finance. The petitioners also asserted that the Act improperly involves Members of Parliament in the administration of public funds, undermining the constitutional doctrine of separation of powers and creating conflicts between different levels of government.

Additionally, the petitioners argued that the Act duplicated functions assigned to county governments under the Fourth Schedule of the Constitution, resulting in inefficient use of public resources and confusion in governance structures.

Issues

  1. Whether amendments to the National Government Constituencies Development Fund Act, 2015 in 2022 and 2023 that were made in 2022 and 2023 after the instant petition was filed rendered the petition moot, particularly regarding provisions that were repealed or substantially altered.
  2. Whether the National Government Constituencies Development Fund Act, 2015 undermined the constitutional principles of devolution by encroaching on the functional and financial autonomy of county governments.
  3. Whether the National Government Constituencies Development Fund Act, 2015 infringed on the basic structure of the Constitution by effectively creating a third level of government.
  4. Whether the National Government Constituencies Development Fund Act, 2015 encroached on the functions reserved for county governments, leading to duplication and inefficiency.
  5. Whether the involvement of Members of Parliament in the implementation and oversight of the Fund under the National Government Constituencies Development Fund Act, 2015 contravened the doctrine of separation of powers by blurring the distinction between legislative and executive functions.
  6. Whether the allocation of funds under the National Government Constituencies Development Fund Act, 2015 complied with the constitutional principles of prudent and responsible financial management particularly in ensuring transparency, accountability, and avoidance of duplication of funding structures.
  7. Whether the enactment of the National Government Constituencies Development Fund Act, 2015 adhered to constitutional procedures, including consultation with the Senate and the Commission on Revenue Allocation, given its impact on county governments and revenue allocation.

Held

  1. Under article 259 of the Constitution, the court was enjoined to interpret the Constitution in a manner that promotes its purposes, values and principles. The general presumption was that Acts of Parliament were enacted in conformity with the Constitution. The provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other. Courts must be a liberal approach that promoted the rule of law and had jurisprudential value that must take into account the spirit of the Constitution.
  2. The 2022 and 2023 amendments, several sections of the National Government Constituencies Development Fund Act (the Act) were deleted and repealed. Sections 15(4), 19, 43(2)(e), 53 were deleted, repealed or substituted by the 2023 Act. The challenge to those provisions in the petition was moot. however, there was still a raging dispute calling for adjudication on the remainder of the Act. The 2022 and 2023 amendments to the 2015 Act did not negate the substratum of the entire petition.
  3. Devolution was a key cornerstone in the architecture of the Constitution. The Constitution called for optimal utilization of public resources. Sustainable development was a national value and principle under article 10 of the Constituion. So much so that the framers of the Constitution abhorred wastage of government resources through multiplication of delivery channels.
  4. The creation of the constituency as a service delivery unit under the Act led to multiple channels of funding and implementation of projects, wastage of public resources and lack of clarity. All those undermined the principle of devolution and the architecture of the Constitution on the two levels of government, separation of powers and the primary oversight role of Parliament.
  5. The basic structure doctrine was not applicable in Kenya. The challenge to the Act founded upon violation of the doctrine of basic structure of the Constitution failed.
  6. Parliament as a legislative arm of government under the Constitution consists of the Senate and the National Assembly. The legislative remit of the National Assembly fell under the National Government in the vertical division of powers between the National Government and the county governments. That was evident from article 95 of the Constitution.
  7. The nature of the projects set out in the Act as amended in 2022 and 2023 included education bursary schemes, education days, teaching and learning activities and other learners’ social support programmes; climate change mitigation activities including afforestation, reafforestation, grassroot sensitization and tree seedling production. Section 8 of the Act created an emergency reserve equivalent to 5% which shall remain unallocated and available for emergencies that may occur within the Constituency. The Emergency Reserve was akin, in all respects and aspects to the County Emergency Funds and the Contingency Fund created under the Contingency and County Emergency Funds Act (CCEF Act). The object of the Act was to ensure that the Contingencies Fund, and the County Emergency Funds were managed and operated by the National Government and the county governments respectively as contemplated by article 208(2) of the Constitution.
  8. Part 3 of the CCEF Act under section 10(2) provides for the purpose of the emergency fund being to enable payments to be made in respect of a county when an urgent and unforeseen need for expenditure arises for which there was no specific legislative authority. The fund at the county level was administered by the county government secretary while at the National Government level, it was administered by the Treasury under the management of the Cabinet Secretary responsible for matters relating to Finance. The emergency reserve was a replica of the above two other funds established by statute and consequently, the 2015 Act created a duplication of activities and or wastage of resources which could alternatively be assigned to the county governments as provided in article 186(3) of the Constitution.
  9. It was important to have clarity about which level of government was empowered to do what. That avoided confusion and duplication of mandates and responsibilities, and allowed for proper accountability to citizens in respect of service delivery. When there was no clarity, blame could easily be shifted from one sphere of government to the other. The Fund had the potential of creating confusion in the implementation of projects by the two levels of government. Duplication of funding for the same project was inevitable leading to wastage of scarce public resources. The Fund fostered a state of lack of clarity as to which level of government was responsible for which particular project thereby compromising accountability.
  10. The doctrine of separation of powers was a key organizational framework for governance under the 2010 constitutional Scheme. The doctrine was a fundamental principle of law that required the three arms of government to remain separate, and that one arm of government should not usurp functions belonging to another arm. Allowing Legislators any role, even a merely ceremonial role in discharging a mandate that belongs to the executive branch at either the national or the county level, would promote conflict of interest and compromise their oversight role.
  11. Section 15 (4) of the 2015 Act provided for the approval of members of the NGCDF Board by the National Assembly. Section 19 provided for the role of the National Assembly in considering petitions for removal of members of the NGCDF Board while section 43 (1) (4) & (6) and (9) provided for the establishment of the NGCDF Committee for every constituency, approval of the same by the National Assembly and tied the meeting of the Committee to the parliamentary election or by election timelines. Section 15(4) above had since been repealed vide an amendment to the 2023 Amendment Act. However, the National Assembly, under section 15(1)(e), had retained the role of approving members of the Board appointed by the Cabinet Secretary on recommendations of the Public Service Commission. Under section 43(4) and (5), the names of the seven persons of the NGCDF Committee shall be submitted to the National Assembly for approval before appointment and gazettement by the Board.
  12. Whereas the role of the National Assembly in the two scenarios under sections 15 (1) (e) and 43 (4) and (5) of the Act could safely be said to be oversight role, the catch was in section 43(9) which was clear that the Fund Account Manager who was the holder of the purse to the Fund, seconded by the Board to the Constituency shall be the custodian of all records and equipment of the Constituency during the term of Parliament and during transition occasioned by general election or a by election. That meant that the term of the Fund Account Manager was tied to the term of Parliament which was five years or in the case of a by election. The Member of the National Assembly remained in the shadows of the Fund, controlling its operations, however remotely, at the constituency level.
  13. Section 53 of the 2015 Act provided for the establishment of a Constituency Oversight Committee for projects under the Act which comprised the constituency Member of Parliament as well as other members. Section 53 (3) involved the Constituency Member of Parliament as the member of the Oversight Committee in mobilizing, sensitizing and soliciting views, opinions and proposals from the public. The entire section 53 of the Act was deleted as a whole in the 2023 legislative amendments and therefore any challenge to the same was moot.
  14. Article 1(4) of the Constitution established the National and county Governments as two distinct levels of government, each deriving its power directly from the Constitution itself. The county government, as outlined in Article 1, did not receive its authority from the National Government but rather from the people of Kenya and the Constitution. That framework positions both levels of government as equals, with neither being subordinate to the other. That said, the National and county Governments were separate yet interconnected entities, required to engage in consultations and cooperation as mandated under articles 6(2) and 189 of the Constitution.
  15. As long as the Fund, as established, involved aspects of service delivery, however well intended, had the effect of creating structures that were incompatible with the nature of the distribution of functions between the two levels of government.
  16. Article 95 of the Constitution provides for the roles of the National Assembly. Article 95 did not grant the National Assembly the power to implement projects in the constituency as a service delivery unit. The mandate of members of the National Assembly was to represent, legislate and oversight the national revenue and its expenditure. Accordingly, by creating a Fund that was administered by the constituency, which was a unit of political representation for legislative and oversight roles, however far removed, the Member of the National Assembly may be, in the management and administration of the Fund, ran afoul the doctrine of separation of powers.
  17. Under section 27 of the Act, the constituency committee was charged with the task of deliberating on project proposals from all wards in the constituency and any other project that may be beneficial to the constituency. The committee was also required to consider the constituency strategic plan and identify a list of priority projects to be submitted to the Board. The funding of projects was provided for under section 25 of the Act. The projects were then implemented by the project management committee, pursuant to section 36. Section 54 provided that the provisions of the Act were complimentary to any other development efforts by the National Government or any other agency. It further provided that nothing in the Act shall be taken or interpreted to mean that an area may be excluded from any other development programmes. No area of development was out of the reach of the Fund under the Act and could directly encroach even on the functions of the county governments under the Fourth Schedule of the Constitution.
  18. Projects under the Act may include those undertaken by both the National and county Governments. Accordingly, given the governments at both levels also budget for all their functions, programmes and projects, allocating money to the Fund leads to double financing of the same functional areas. That undermines the fiscal efficiency imperative that eliminates wastages in service delivery. Duplication of projects and programmes even if intended for the public good, would inevitably result in wastage or abuse of public funds allocated for the same. In such circumstances, fiscal reporting could not be clear.
  19. The Act provided for conceptualization, funding and implementation of projects within constituencies. Under section 54, no area was out of the reach of the Act and projects thereunder may extend to functions of both the National and county Governments. The Fund had the potential of creating confusion in the implementation of projects by the two levels of government and to duplicate funding for the same projects leading to wastage of scarce public resources and compromising accountability. The 2015 Act, notwithstanding the 2022 and 2023 amendments, violated the constitutional principles of public finance.
  20. Under article 216 of the Constitution, the principal function of the Commission on Revenue Allocation (CRA) was to make recommendations concerning the basis for the equitable sharing of revenue raised by the National Government, between the National and county Governments and among the county governments. The recommendations by the CRA on the formula for equitable sharing of nationally raised revenue between the National and county Governments was not obtained. However, under article 205, the making of the recommendations by CRA on the proposals was at its discretion. Nevertheless, the National Assembly was required to submit the proposals to the CRA for consideration.
  21. Article 109(3) and (4) of the Constitution clarified when a bill, of the nature of the dispute now before us, should originate from either House of Parliament or when there should be concurrence of both Houses. The impugned Act created an anomalous executive-based- function at the constituency wedged somewhere between the National Government and County Governments. The Fund distorted the devolved structure of government and created structures that were incompatible with the nature of the distribution of functions between the two levels of government. The enactment of the statute without concurrence of the Senate ran counter to article 193 of the Constitution.
  22. The National Government may not allocate any funds to its agencies prior to the division of revenue. It was only after the equitable division of all revenue raised was done under a Division of Revenue Bill, under article 218 of the Constitution that the National Government could proceed to allocate funds to its agencies. The National Government may only allocate funds to its agencies from its equitable share under the Division of Revenue Act as envisaged in article 218(1)(a).
  23. No funds could be allocated on the basis of a bill that had not been enacted into law. The for an order seeking to restrain the 5th respondent from allocating funds to the Fund on the basis of the Bill as well as the prayer for an order striking down those parts of the Bill purporting to allocate funds to the Fund before the vertical division of revenue between the county and National Governments were premature and not ripe for consideration by the court at that point.
  24. A division of revenue act provided for the equitable division of revenue raised nationally between the two levels of government in a given financial year. Accordingly, even if the Act in question had been in existence at the time of filing the petition, which it was not, the same was for the financial year 2016/2017 and lapsed by effluxion of time.
  25. The Fund had been in operation since 2003. Its centrality and the value of its programmes to the local communities across 290 constituencies could not be gainsaid. There were short-term, medium-term and long-term projects already being implemented by the Fund. Moreover, the life span of the projects was not necessarily pegged to the financial year. The Fund had employees and may have contracts with third parties. At the time of the instant judgment, Kenya was in the middle of the current financial year and funds may have been allocated for ongoing projects. Despite the finding that the 2015 Act as last amended in 2023 was unconstitutional, it would not be in the interest of the nation or of the cause of justice to bring it to an abrupt closure. The principle of justiciability prohibited the court from entertaining hypothetical or academic issues or engage in abstract arguments. The Division of Revenue Act having lapsed at the end of the financial year in question, there was no live issue for determination by the court. The matter was not justiciable. The impugned Act and Fund established thereunder and its programmes ceased to operate at the stroke of midnight on June 30, 2026.
  26. The time was ripe for the people of Kenya to appreciate that a constituency was not a service delivery unit but of representation and that the role of the Member of the National Assembly must remain that of representation, legislating and oversight as per article 95 of the Constitution. Funds had been allocated in the current financial year to the projects under the Fund. Extending the Fund beyond the current financial year would unreasonably perpetuate the unconstitutionality of the Act. The 2015 Act and the Fund cease to operate on June 30, 2025, the end of the current financial year.
     

Petition partly allowed.

Orders:

  1. The National Government Constituencies Development Fund Act of 2015 as amended in 2022 and 2023 was declared unconstitutional.
  2. The National Government Constituencies Development Fund and all its programmes, projects and activities shall cease to operate at the stroke of midnight on June 30, 2026.
  3. Each party was to bear their own costs.

The directive to close the Kakuma and Daadab Refugee Camps is unconstitutional for want of public participation and for violation of the right to fair administrative action and was a violation the principle of non-refoulement.

Headnote:      The petitions challenged directives issued in March and April 2021 by Kenya’s Cabinet Secretary for Interior, ordering the closure of Dadaab and Kakuma refugee camps by June 2022. The petitioners, including Kituo Cha Sheria and asylum seekers, alleged violations of constitutional rights and international refugee law, citing lack of public participation and threats to the principle of non-refoulement. The respondents argued the closure was lawful and necessary to address camp conditions. The High Court found the directives unconstitutional, ruling they violated public participation requirements, refugee rights, and Kenya’s international obligations. The court quashed the directives and mandated compliance with due process.

Legal Advice Centre t/a Kituo Cha Sheria & 5 others v Attorney General & 4 others; Kenya National Commission on Human Rights & another (Interested Parties) (Petition E123, E102 & 4 (ELD) of 2021 (Consolidated)) [2024] KEHC 2973 (KLR) (Constitutional and Human Rights) (15 March 2024) (Judgment)

Neutral Citation: [2024] KEHC 2973 (KLR)

High Court at Nairobi

M Thande, J

March 15, 2024

Reported by John Ribia

Constitutional Law – national values and principles of governance – public participation – decision to close refugee camps – claims of lack of public participation - whether the directive to close the Kakuma and Daadab Refugee Camps was unconstitutional for want of public participation – Constitution of Kenya article 10

Constitutional Law – fundamental rights and freedoms – right to fair administrative action - decision to close refugee camps – whether the directive to close the Kakuma and Daadab Refugee Camps was a violation of the right to fair administrative action of the refugees – Constitution of Kenya article 47; Fair Administrative Action Act (cap 7L) sections 2, and 5(1)

International Humanitarian Law – refugees – asylum seekers – principle of non refoulement -  decision to close Kakuma and Daadab Refugee Camps – claim that it violated the principle of non refoulement - whether the directive to close the Kakuma and Daadab Refugee Camps violated the principle of non-refoulement of refugees - Refugees Act (cap 173) section 29; Refugees Act (Repealed) (No 13 of 2006) section 18; Convention Relating to the Status of Refugees, 1951 articles 1(2), and 33; OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 articles 1, 2(3), and 2(4); Universal Declaration of Human Rights (UNDHR), 1948 article 14

Brief facts

The consolidated petitions arose from directives issued by the Cabinet Secretary, Ministry of Interior and Coordination of National Government, on March 24, 2021, and April 29, 2021, ordering the closure of the Dadaab and Kakuma refugee camps by June 30, 2022. The directives were communicated to the United Nations High Commissioner for Refugees (UNHCR) and mandated a roadmap for repatriation or socio-economic integration of refugees.

The petitioners, including Kituo Cha Sheria and individual asylum seekers, challenged the directives, alleging violations of constitutional and international refugee rights, particularly non-refoulement. They contended that the directives were issued without public participation or stakeholder engagement, violating articles 10, 47, and other constitutional provisions, as well as Kenya's international obligations under the 1951 UN Refugee Convention and the 1969 OAU Refugee Convention.

The respondents argued that the closure was legal and aimed to address concerns over the camps' conditions. An internal committee with UNHCR participation was established, but no evidence of broader consultation or adherence to due process was presented. The petitioners sought to quash the directives, mandate public participation, and enforce compliance with constitutional and international legal standards.

Issues

  1. Whether the directive to close the Kakuma and Daadab Refugee Camps was unconstitutional for want of public participation
  2. Whether the directive to close the Kakuma and Daadab Refugee Camps was a violation of the right to fair administrative action of the refugees.
  3. Whether the directive to close the Kakuma and Daadab Refugee Camps violated the principle of non-refoulement of refugees.

Held

  1. The national values and principles of governance stipulated under article 10 of the Constitution were binding on all State organs, State officers, public officers and all persons. It informed stakeholders and the public of what was intended and afforded them an opportunity to express, and have their views taken into account.
  2. Information in respect of which views were sought must be reasonably accessible to the public in a timely fashion. Understanding of the issue was also critical and the public must be sufficiently sensitized to enable them give informed views on the same. Factors such as illiteracy and language barriers, disability, etc. must also be taken into account. Adequate time must be given to the public to interrogate and process the information. Further the manner in which the public was to give their views or otherwise participate in the matter must be clearly defined.
  3. The extent and manner in which public participation was conducted in the formulation and implementation of laws and policy must accord with the nature of the subject matter. What constituted reasonable and meaningful public participation was determined on a case to case basis.
  4. The intended closure of the Refugee camps in question had far reaching implications and consequences. It could not be done with a stroke of a pen. The views and input of those affected or likely to be affected by the closure of the Camps must be considered and taken into account before such a drastic action was taken.
  5. There was no public participation of any form prior to the issuance of the impugned directive. The stakeholders were not afforded an opportunity to express concerns, fears or even make demands. To the extent that the decision to close the two Refugee Camps was made without consulting the public and the persons affected, the result could never be an informed decision.
  6. An internal working committee had been established comprising of Government officials and members of the UNHCR to develop a roadmap or strategy on closure of the Refugee Camps. Without the participation of the public and in particular refugees and asylum seekers, the establishment and workings of the said committee could not be said to meet the effective, meaningful and substantive constitutional threshold for public participation.
  7. The requirement in section 5 of the Fair Administrative Action Act (FAAA) was key to ensuring fairness where an administrative action is taken. The participation of the public was mandatory prior to the taking of an administrative action. Before taking the action, an administrator was required to notify the public of the same, invite and consider all views submitted. Upon taking the action, the administrator must give reasons for the same, notify the public of the available internal mechanisms for appeal to any person affected by the decision and specify the manner and period within which such appeal must be lodged.
  8. The impugned directive was an administrative action within the meaning of section 2 of the FAAA. As such, the participation of the petitioners and the public in general and the 2nd petitioner and other refugees and asylum seekers in particular was mandatory prior to the issuance of the impugned directive. The Cabinet Secretary was required to notify the public and the persons to be most affected, of the same, invite and consider all views submitted. Thereafter upon taking the action, the Cabinet Secretary ought to give reasons for the same, notify the public and those concerned of the available internal mechanisms for appeal to any person affected by the decision and specify the manner and period within which such appeal must be lodged. In the instant case, none of the foregoing was done. Accordingly, the impugned directive was issued in violation of the provisions of article 47 of the Constitution and of the FAAA.
  9. Closure of refugee camps was legally accessible to the Government by dint of article 2(4) of the Convention Governing the Specific Aspects of Refugee Problems in Africa. To that end, an internal working committee was established comprising of Government officials and members of the UNHCR to develop a roadmap or strategy on closure of the Dadaab and Kakuma Refugee Camps. That would ensure that closure was done with due process.
  10. Article 2(4) of Convention Governing the Specific Aspects of Refugee Problems in Africa (the 1969 OAU Convention) was to the effect that it provided the procedure to be followed when a member state that hosts refugees, experienced challenges in continuing to do so. Such member may appeal directly to other member states or through the organisation for assistance. Such member states were then required in the spirit of solidarity and international cooperation to take appropriate measures to help ease the burden of the member state in distress. The Government as a member state to the Convention ought to have appealed to other member states either directly or through the Organization for assistance to lighten its burden. Instead of following the laid-out procedure the Cabinet Secretary issued the impugned directive, in violation of article 2(4) of the Convention.
  11. A refugee was a person who had been forced to flee conflict, persecution or human rights abuses and has crossed an international border to seek safety. As a result of the conditions prevailing in his country such person was unable to return to without placing his life or freedom at great risk. Conflict and persecution caused displacement of persons from their countries of origin or residence, making their return impossible. Refugee protection remained urgently needed by those forced to leave their countries.
  12. The principle of non-refoulment was that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. The principle had acquired the status of a rule of customary international law. It was binding an all States, regardless of whether they had acceded to the global 1951 Convention or 1967 Protocol or regional instruments. States were prohibited from transferring or removing individuals from their jurisdiction when there were substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.
  13. The principle of non-refoulment was also anchored in municipal law. The Refugees Act, 2006 (repealed) provided for the non-return of refugees, their families or other persons. So critical was the safeguard against refoulement, that the Refugees Act, 2021, made specific provision for non-refoulment. The wording is similar to that in the 1951 Convention.
  14. When Kenya acceded to the 1951 Convention and the 1969 OAU Convention and subsequently domesticated the same through the enactment of the Refugees Act, it demonstrated its commitment to treating refugees in accordance with internationally recognized legal and humanitarian standards. Kenya currently hosts more than 500,000 refugees and asylum seekers who were accorded the rights as envisaged in the international refugee instruments, Kenyan law and the Constitution of Kenya.
  15. The application of article 33(2) the 1951 Convention required an individualized determination by the country in which the refugee was that he or she came within one of the two categories provided for under article 33(2). That ruled out group or generalized application or collective condemnation. Unfortunately, the averment by the Government that the two exceptions were applicable and not based on individual consideration or determination to each affected refugee but were dangerously generalized in a manner that was a kin to collective punishment.
  16. The blanket implementation of the intended closure of the 2 camps posed the danger of denying refugees and asylum seekers individualised consideration and determination of their individual and personal circumstances and subject them to generalised and collective condemnation which would undoubtedly include involuntary repatriation.
  17. Closure of the camps would inevitably result in repatriation of asylum seekers and refugees, which without their participation in the process, would be involuntary. That violated the principle of non-refoulement. The conflict in the 2nd petitioner’s country of the DRC subsisted and her return ws is untenable given the threat to her life and security of her person as well as human rights violation. The impugned directive went against Kenya’s obligations in respect of the principle of non-refoulement.
  18. The refugees and asylum seekers in the 2 camps enjoyed the rights available to them in the camps including the right to protection and security. The intended closure of the certainly posed a real threat and apprehension in the minds of those who had been granted refuge therein, including the threat to involuntary repatriation.
  19. Article 29 of the Constitution guarantees to every person the freedom and security of the person. The right was available to every person, including persons who sought and were granted refuge in Kenya. The intended closure of the refugee camps would pose a threat to the right. Refugees and asylum seekers were very vulnerable and required protection of the State. The intended closure of the camps went against the obligation of the State to address the needs of the vulnerable under article 21(3) of the Constitution.
  20. The impugned directive violated the rights of refugees and asylum seekers in the 2 refugee camps. The directive further exposed them to vulnerability which was inconsistent with Kenya’s commitment and duty to take care of refugees and asylum seekers within its borders. The closure of any of the refugee camps in Kenya must be done in a manner that follows due process and in compliance with the State’s obligations under both international and municipal law.

Petition allowed.

Orders:

  1. Declaration issued that the directive on closure of Dadaab and Kakuma Refugee Camps issued by the Cabinet Secretary for Interior and Co-ordination of National Government on March 24, 2021 and March 29, 2024 respectively were unconstitutional, were inconsistent with, violated and contravened articles 10, 19 20, 21, 24, 29 and 47 of the Constitution.
  2. Declaration issued that the directive on closure of Dadaab and Kakuma refugee camps issued by the Cabinet Secretary for Interior and Co-ordination of National Government on March 24, 2021 and March 29, 2021 respectively contravened article 33 of the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol; article 2(3) of the 1969 OAU Convention Governing the Specific Aspects of Refuge problems in Africa and section 18 of the Refugees Act, 2006 (repealed).
  3. Order of certiorari issued to bring to the High Court for purposes of quashing and to quash the directives on closure of Dadaab and Kakuma Refugee Camps made on March 24, 2021 and March 29, 2021 respectively, contained in the 2nd respondent’s twitter account and joint statement published by UNHCR in its website on March 29, 2021.
  4. Order of mandamus directed to the respondents mandating them to undertake the required lawful process and procedures including but not limited to undertaking public participation prior to taking administrative actions on the closure of Dadaab and Kakuma refugee camps.
  5. Order of prohibition directed to the respondents, their agents, officers, undisclosed principals and any other persons acting on their behalf or instructions from closing Dadaab and Kakuma refugee camps without following due process or in pursuance of a lawful directive and or decision.

The decision by EPRA cross-subsidize diesel prices with super petrol was not unlawful or discriminatory.

Headnote:      The petitioner challenged the Energy and Petroleum Regulatory Authority’s (EPRA) January 2023 decision to cross-subsidize diesel prices with super petrol, alleging violations of procedural fairness, transparency, and constitutional rights under Articles 10, 27, 40, and 47. The court examined whether EPRA acted within its statutory mandate and upheld constitutional principles, considering the petitioner’s claims of discrimination and lack of public participation. Ultimately, the court dismissed the petition, finding the cross-subsidy scheme lawful, justified, and supported by statutory provisions.

Ithagi v Energy & Petroleum Regulatory Authority & another (Constitutional Petition E005 of 2023) [2024] KEHC 483 (KLR) (23 January 2024) (Judgment)

Neutral citation: [2024] KEHC 483 (KLR)

High Court at Mombasa

OA Sewe, J

January 23, 2024

Reported by John Ribia

 

Jurisdiction – jurisdiction of the High Court vis-à-vis the jurisdiction of the Energy and Petroleum Tribunal – where the dispute was on the body with the mandate to implement cross subsidies and on alleged violation of constitutional provisions - whether the High Court lacked jurisdiction to deal with a dispute on the mandate of the Energy and Petroleum Regulatory Authority to implement subsidies and alleged violations of constitutional provisions due to the Energy Act referring disputes under it to Energy and Petroleum Tribunal - Constitution of Kenya, articles 10, 27, 40, 118, 159, 201, and 210; Energy Act (cap 314) sections 23, 24, and 25

Oil and Gas Law – subsidies – subsidy schemes – mandate to implement oil/gas subsidy schemes – where the Energy and Petroleum Regulatory Authority to cross-subsidized diesel prices with super petrol – legality - whether the decision to cross-subsidize diesel prices with super petrol amounted to the imposition of taxes or levies without legislation - whether the cross subsidy scheme which cross-subsidized diesel prices with super petrol was inconsistent with the legal framework, including the Petroleum Development Levy Order and the Petroleum Development Fund Act - Wwhether the Energy and Petroleum Regulatory Authority acted beyond its mandate under the Energy Act and the Petroleum Act in implementing the cross-subsidy scheme which cross-subsidized diesel prices with super petrol – Constitution of Kenya, article 210; Energy Act (cap 314) sections 9(2), 10, 23, 24, 25, and 36; Petroleum Development Fund Act (cap 426) section 3(1), and 4; Petroleum Development Levy Order, 2020 (cap 426 Sub Leg) order 4; Petroleum (Pricing) Regulations, 2022 (cap 314 Sub Leg) regulation 8

Constitutional Law – fundamental rights and freedoms – freedom from discrimination -  where the Energy and Petroleum Regulatory Authority to cross-subsidized diesel prices with super petrol – where a user of super petrol viewed the decision to be discriminatory - whether a cross-subsidy scheme which cross-subsidized diesel prices with super petrol constituted unfair discrimination against consumers of super petrol as compared to consumers of diesel – Constitution of Kenya article 27; Energy Act (cap 314) sections 9(2), 10, 23, 24, 25, and 36; Petroleum Development Fund Act (cap 426) section 3(1), and 4; Petroleum Development Levy Order, 2020 (cap 426 Sub Leg) order 4; Petroleum (Pricing) Regulations, 2022 (cap 314 Sub Leg) regulation 8

Constitutional Law – national values and principles of governance – public participation -  where the Energy and Petroleum Regulatory Authority to cross-subsidized diesel prices with super petrol – legality - whether decision by the Energy and Petroleum Regulatory Authority to cross-subsidize diesel prices with super petrol was unconstitutional for lack of public participation – Constitution of Kenya article 10; Energy Act (cap 314) sections 9(2), 10, 23, 24, 25, and 36; Petroleum Development Fund Act (cap 426) section 3(1), and 4; Petroleum Development Levy Order, 2020 (cap 426 Sub Leg) order 4; Petroleum (Pricing) Regulations, 2022 (cap 314 Sub Leg) regulation 8

Brief facts

In April 2021, the Kenyan government introduced fuel subsidies to cushion consumers against rising international petroleum prices. On September 13, 2022, the President announced a policy shift to end the fuel subsidy program. Subsequently, subsidies on super petrol were fully removed, while partial subsidies on diesel and kerosene were retained.

Beginning October 14, 2022, EPRA introduced a cross-subsidy scheme, where the price of super petrol was increased to subsidize diesel prices. The petitioner, a regular super petrol consumer, filed a constitutional petition challenging the Energy and Petroleum Regulatory Authority's (EPRA) decision, communicated via a press release dated January 14, 2023, to cross-subsidize the price of diesel with that of super petrol and maintain a subsidy on Kerosene. The petitioner alleged that the decision was made without consultation or adherence to principles of procedural fairness, transparency, and accountability. The petitioner sought various reliefs, including declarations of illegality, orders of certiorari, prohibition, and mandamus, and an accounting of funds collected and applied under the scheme.

Issues

  1. Whether the High Court lacked jurisdiction to deal with a dispute on the mandate of the Energy and Petroleum Regulatory Authority to implement subsidies and alleged violations of constitutional provisions due to the Energy Act referring disputes under it to Energy and Petroleum Tribunal.
  2. Whether the decision to cross-subsidize diesel prices with super petrol violated article 210 of the Constitution, which prohibited the imposition of taxes or levies without legislation.
  3. Whether decision by the Energy and Petroleum Regulatory Authority to cross-subsidize diesel prices with super petrol was unconstitutional for lack of public participation.
  4. Whether a cross subsidy scheme which cross-subsidized diesel prices with super petrol was inconsistent with the legal framework, including the Petroleum Development Levy Order and the Petroleum Development Fund Act.
  5. Whether a cross-subsidy scheme which cross-subsidized diesel prices with super petrol constituted unfair discrimination against consumers of super petrol as compared to consumers of diesel.
  6. Whether the Energy and Petroleum Regulatory Authority acted beyond its mandate under the Energy Act and the Petroleum Act in implementing the cross-subsidy scheme which cross-subsidized diesel prices with super petrol.

Held

  1. Jurisdiction was everything. Without it, a court had no power to make one more step. Jurisdiction was donated either by the Constitution or Statute and was therefore not left to conjecture.
  2. The Constitution championed alternative dispute resolution. Sections 23, 24 and 25 of the Energy Act could not be interpreted to mean complete ouster of jurisdiction. What it meant was that there ought to be a postponement of approach to the court in the interest of expediency by pursuing the alternative dispute resolution mechanisms available; hence the doctrines of exhaustion and avoidance. Moreover, section 9 of the Fair Administrative Action Act provided for judicial review upon exhaustion of all internal administrative processes.
  3. Where an alternative dispute resolution mechanism was provided for, the same ought to be followed first; and that the court’s jurisdiction be invoked only as a last resort. That did not however imply that the jurisdiction of the High Court was completely ousted; for the court could not be said to be powerless. Where a party took the view that the remedy sought could only be obtained from the court, nothing stopped such a party from instituting the suit as deemed appropriate to the specific circumstances of his/her case.
  4. Since the petitioner had, in the main, alleged violations or threatened violations of their rights under articles 10, 27 and 46 of the Constitution and had accordingly prayed for declaratory and other reliefs from the court, it could not be said that the instant dispute was one that ought to have been referred either to the Energy and Petroleum Regulatory Authority (the 1st respondent) or to the Energy and Petroleum Tribunal (the Tribunal) for resolution. The High Court had jurisdiction to hear and determine the petition.
  5. In so far as the petitioner had alleged violations or threats of violations of the Constitution against the respondents, the requisite jurisdiction existed for the High Court to entertain and determine the petition.
  6. There was sound legal basis for the decision to impose the cross-subsidy scheme. The petitioner’s argument that the cross-subsidy scheme was not the same as the Petroleum Development Levy as contemplated under the Order (Legal Notice No. 124 of 2020) was entirely misconceived.
  7. Policy, without more, could not override express provisions of the law. The Petroleum Development Levy Order was made pursuant to the law; in particular, section 3(1) of the Petroleum Development Fund Act. There was a general presumption of constitutionality of statute.
  8. Subsidization was typically given to alleviate some type of burden, and was often done in the overall interest of the public, with a view of promoting social good or an economic policy. The 1st respondents mandate to determine the fuel prices on a monthly basis was provided for under section 101(y) of the Petroleum Act as well as Legal Notices No. 26 of 2012 and No. 192 of 2022.
  9. The petitioner was, at all material times aware of the mandate, and thus could not claim to have lacked prior notice to the various press releases. Thus, in terms of public participation and prior notice, it could not be said that the respondents acted in violation of articles 10 or 47 of the Constitution.
  10. The cross-subsidy scheme could not be faulted. In particular, the 2nd respondent explained that the Government spent Kshs. 114 Billion between April 2021 to February 2023 to subsidize Super Petrol, Diesel and Kerosene to cushion Kenyans from high pump prices and that, had the scheme not been implemented in the October November 2022 pricing cycle, there would have been adverse effects on the economy because diesel consumption averages 230 million litres and was used in transportation, agricultural and industrial sectors.
  11. The burden was on the petitioner to so demonstrate discrimination in a more convincing manner as to displace the justification presented by the respondents. Based on the evidence, the court was unable to conclude that the rights of the petitioner under articles 27 were violated.

Petition dismissed. Each party was to bear its own costs