CHAPTER FOUR: CONSTITUTIONAL LITIGATION POST 2010
1.0 Introduction
Kenya promulgated a new constitution in August of 2010, this constitution ushered in a fresh set of national values, a new system of government, and a new bill of rights. The new constitutional order led to the establishment of new guidelines in which constitutional claims are actually litigated.[1] This chapter seeks to provide guidance on the following issues; the proper forum for the determination of constitutional issues in Kenya post 2010, the locus standi to espouse constitutional matters, the procedural rules in constitutional matters, the trial process in constitutional litigation and the remedies available.
2.0 The Proper Forum for the Determination of Constitutional Issues in Kenya: Jurisdiction of Courts
The Constitution of Kenya outlines in Article 23 and Article 165 that the high court has jurisdiction to determine questions on whether a fundamental freedom or a right in the Bill of Rights has been violated, infringed or threatened.[2] The Constitution further states in Article 165 that the High Court has jurisdiction to determine any matter on the interpretation of the constitution. Such matters include cases; on the determination of whether any law is in contravention or is inconsistent with the constitution; on the determination of whether anything said to be done in furtherance of this Constitution or of any statute is inconsistent with or in contravention of this Constitution; on matters involving constitutional powers of the state organs; and on question relating to conflict of laws.[3]
The foregoing was re-affirmed in A.O.O & 6 Others vs. Attorney General & Another[4],in which case the court held that the Constitution in Article 165 (3) vests power to the High Court to hear and determine any question concerning the interpretation of the constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the constitution and also the question whether anything said to be done under the authority of the constitution or of any law is inconsistent with, or in contravention of, the constitution.[5]
In the case of Hamisi Mangale Burehe v Director of Public Prosecutions [2019], the court held that the jurisdiction of the High Court to determine issues of violation of fundamental rights is cemented by Article 165 which establishes the High Court and proceeds to give the Court the jurisdiction to determine the question on whether a fundamental freedom or a right in the Bill of Rights has been violated, threatened or denied.[6]
The Constitution of Kenya in article 164 outlines the appellate jurisdiction of the Court of Appeal. This article provides that appeals from the High Court are determined by the Court of Appeal.[7] A party aggrieved by the decision of the High Court on the interpretation of the constitution or on the violation and infringement of the bill of rights can appeal to the Court of Appeal.
The Supreme Court which is the Apex of the judicial system in Kenya, [8]also has appellate jurisdiction to hear and determine appeals from the Court of Appeal in cases of the interpretation of the Constitution. The court also adjudicates matters that the Court of Appeal have certified as a matter of general public importance.[9] Therefore, the Supreme Court has the final authority on constitutional interpretation. This in was illustrated in the case of Peter Oduor Ngoge V Francis Ole Kaparo & 5 Others where the court held that in the interpretation of any legal provision on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitution running up to the Court of Appeal, have the professional competence and effectiveness to adjudicate matters on the law and only cardinal issues of jurisprudential moments or of law will require the Supreme Court’s input.[10]
3.0 Locus Standi to Espouse Constitutional Matters
The Constitution of Kenya in Article 22 offers everyone a right to institute court proceedings concerning claims of contravention of the Constitution, or threatened contravention.[11] The proceedings can be instituted by an individual acting in their own interest or by a person acting on behalf of another person who cannot act in their own name, a person acting as a member of, or in the interest of, a group or class of persons, a person acting in the public interest or an association acting in the interest of one or more of its members.[12]
Article 258 of the Constitution proceeds to reiterate that every individual has a right to institute court proceedings concerning claims of contravention or threatened contravention of the constitution. The article proceeds to indicate that these court proceedings can be instituted by an individual pursuing their own interests or by other individuals representing the interests of others.[13]
The above provisions can be supported by the following cases Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission [14] in this case it was noted that the strict rules of locus standi have been relaxed. Courts give locus standi to any member of public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury so long as the person is not a mere busybody or a meddlesome interloper, in addition, what gives or infers locus standi to a person in Kenya is a minimal personal interest and such interest gives the person standing even though it is quite clear that he would not be more affected than any other member of the population.
Similarly, in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others[15] the Court of Appeal stated at page 16 as follows: Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. Apart from this, the court agreed with the superior court that the standard guide for locus standi must remain the command in Article 258 of the Constitution.
The issue of locus standi in matters dealing with the interpretation of the constitution, relies on the case of Albert Ruturi, JK Wanywela & Kenya Bankers’ Association v The Minister of Finance & Attorney General and Central Bank of Kenya in which the court held that, when it comes to constitutional questions, human right cases, public interest litigation and class actions any person acting in good faith can approach the court seeking judicial redress for a legal injury caused or threatened to be caused.[16]
4.0 The Procedural Rules in Constitutional Matters
In 2012, the then Chief Justice Hon. Willy Mutunga, in exercise of the powers conferred to him by Article 22(3) as read together with Article 23, Article165 (3) (b) and Article 258 of the Constitution of Kenya, established the draft rules which were then cited as The Constitution Of Kenya (Protection Of Rights And Fundamental Freedoms And Enforcement Of The Constitution) Practice And Procedure Rules, 2012.
The rules were later gazetted on 28th June 2013 as Legal Notice 117 of 2013 cited as The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.[17] Hereinafter referred to as the Mutunga Rules.
Rule 3 of the Mutunga rules outlines that these rules apply to all proceedings outlined under Article 22 of the Constitution; on the enforcement of the Bill of Rights.[18] Rule 3, sub rule (3) proceeds to indicate that the rules shall also be interpreted in accordance with Article 259 (1) and shall be applied with the intent of advancing and realizing the rights and freedoms enshrined in the Bill of Rights and the principles and values of the Constitution.[19]
In the case of Nicolaas Hendrick Claassen v Commissioner of Lands & 4 Others, the Court held that the Constitution of Kenya (Protection of Rights and Fundamental freedoms) practice and Procedure Rules 2013 provide the manner in which all constitutional petitions and applications are supposed to be filed.[20] This case outlines that when it comes to other constitutional matters that do not include matters on the violation of the bill of rights, the Mutunga rules will still apply.
4.1 Procedure for instituting constitutional court proceedings
Addition, joinder, substitution and striking out of parties.
In instances where the Petitioner is in doubt concerning the parties from whom redress should be pursued, the petitioner is allowed to join two or more respondents in order to determine which respondent is liable and to what extent.[21] A petition will not be defeated because of a non-joinder or a misjoinder.[22] In instances where the proceedings in a petition have been instituted in the wrong name or where the Court is suspicious of the name of the right petitioner, the Court may at any stage order any other person to be added or substituted. In such instances, the Court will first determine whether the mistake was made in good faith.[23] The Court can also during the proceedings, either upon or without an application of either party; order that the individual’s name of a party wrongly joined be struck out, order that individuals who ought to have been joined be added. Once the parties have been properly added or substituted, the Court shall direct for the petition to be amended.[24]
Friend of the court (amicus curiae)
The term Friend of the Court or amicus curiae refers to an individual or organization that is not a party to a lawsuit, but proceeds to participate in the litigation. This party provides the court with relevant information that will assist the court in making an informed decision.[25] When it comes to constitutional petitions, the Court may allow any such individual who has expertise in a particular matter which is being handled in Court, to be joined as a friend of the Court. Any party willing to be enjoined as a Friend of the Court can make an application either orally or written. The Court can also on its own discretion request any individual to appear as a friend of the Court.[26]
Interested party
A person with leave of the court might make an oral or written application to be joined as an interested party. The court may also on its own motion, join any interested party to the proceedings.[27] An interested party refers to individuals or organizations that are interested in the outcome of the case.
Notice of institution of the petition
Prior to filing a petition, the Court may direct that a notice of institution of petition be published in the Gazette or on the Court notice board, a daily newspaper or on the Judiciary website.[28] The Notice mainly contains a brief summary of the case and a reference to the violated constitutional provisions and the relief sought.[29]
Form of petition
Constitutional matters are brought before the court through a constitutional petition. The constitutional petition on matters of infringement of the rights in the bill of rights and violation of the constitution shall contain the following;
- the petitioner’s name and address
- the facts relied upon by the petitioner
- the constitutional provision violated and/or infringed
- The nature of injury likely to be caused or be caused to the petitioner or the individual in whose name the petitioner has filed the suit
- Information concerning any criminal or civil case, involving any of the petitioner
- The signature of the advocate or the petitioner
- The relief sought by the petitioner.[30]
The distinction between a constitutional petition for violation and/or infringement of the bill of rights and one for interpretation of the constitution is as follows; the petition for a constitutional interpretation matter will contain the constitutional provision that is required to be interpreted instead of the constitutional right violated.
The constitutional petition can also be made through an oral application, a letter or any other informal documentation. These options require the disclosure of all relevant information on the right or fundamental freedoms that has been violated or infringed. [31]The oral application will then be presented to the Registrar, who will then ensure it is converted into written form.
After filing the constitutional petition, the petitioner will then serve the respondent with the filed petition and all relevant documents within fifteen days of filing or as the court may direct. The petitioner will be required to produce an affidavit of service as proof of service.[32]
Reply to a petition
If the matter involved the office of the Attorney General or any other State Organ, the parties on receiving the petition will reply to the petition by way of replying affidavit within fourteen days of service.[33] If the matter concerns any other individual/ respondent not linked to the Attorney General or any state organ, the party will within seven days file a memorandum of appearance and then proceed to reply to the petition using either a replying affidavit or a statement setting out the grounds to be relied upon to oppose the petition.[34]
If the respondents in the petition fail to respond within the stipulated time, the court may proceed to hear and determine the petition in the absence of the respondent.[35]
5.0 The Trial Process in Constitutional Litigation Matters
5.1.1 Hearing of the Petition
According to the Mutunga rules, the hearing of the petition shall be by way of written submissions, affidavits and oral evidence. The Court has a discretion to limit the amount of time allocated for oral submissions by the parties.[36] The court will also determine instances when it will examine witnesses or call and examine or recall any witnesses if the Court feels that the witness’s statement is crucial to the case.
The court in evaluating the petition for directions and allocating dates, will require the parties file written submissions within fourteen days. Once the hearing date is issued, the Court will then frame the issues for determination during the hearing.[37]
The parties to the petition may file written submissions to present their case. The submissions should contain a concise statement of facts, issues arising for determination, and a brief statement of argument deliberating on each issue while referring to the relevant authorities.[38]
5.1.2 Seeking an Uneven Number of Judges to Hear a Constitutional Petition
Article 165(4) of the Constitution of Kenya provides that any matter identified by the Court as raising a substantial question of law will be determined by an uneven number of judges appointed by the Chief Justice. The judges should not be less than three in number.[39] It is worth noting that not every petition warrants the empaneling of a three judge bench or an uneven number of judges. For a matter to warrant such attention, it must be a substantial question of law.[40]
In order to decipher what a ‘substantial question of law’ is reference is made to the case of Mohan Galot and Another vs Attorney General and 4 others; in this case the court held that for a ‘substantial question of law’ to be identified the following test should be applied, whether the issue raised is of general public importance or whether it directly or substantially affects the parties’ rights and whether the issue is an open issue that has not been settled by the Supreme Court.[41]
6.0 Development of a case litigation strategy in constitutional matters
The litigation strategy in constitutional cases is based on a single animating principle- a desire to raise the likelihood that a judge will render a judgement or ruling on behalf of a vulnerable applicant to alter or set aside the act on another individual.[42] In order to develop a water tight case litigation strategy the following steps should be applied by the petitioner/respondent;
- The litigant whether an advocate or a public interest litigant should be fully aware of the rights violated and/or the constitutional provision that requires interpretation.[43]
- The litigant should identify the proper choice of forum: In considering the possibility of recourse to judicial bodies to seek reparations for violations or redress, the litigant should identify the relevant judicial body to approach. According to the Mutunga Rules when it comes to constitutional matters, the case should be instituted in the High Court within whose jurisdiction the alleged violation took place.[44] In case the litigant or petitioner feels that the case has been instituted in the wrong forum, the petitioner may make an application to transfer the petition to another court of competent jurisdiction.[45]
- The litigant should identify the counter-arguments that can be raised to the case claims and assumptions presented in the court. After identifying the counter-arguments, the litigant should proceed to develop the relevant responses.
- The litigant should identify the remedies sought; he/she should evaluate whether the remedies or redress sought are realistic and implementable or if they might have an adverse impact.
- The litigant should ensure that the petition and/or reply to petition and any other document to be relied upon in the case, are drafted in accordance with the guidelines available.
7.0 Remedies
The effectiveness of constitutional cases is heavily reliant on the types of requests for relief put forth by petitioners. Therefore, for both parties conceptualizing remedies is the most fundamental aspect of designing a constitutional case strategy.
The Constitution of Kenya in Article 23(3)[46] outlines the several options for remedies where violations of the constitution are determined;
- A judicial review order
Michael Fordham described judicial review as the court’s way of enforcing the rule of law, ensuring that all public authorities’ functions are performed in accordance with the law and that the bodies are accountable to the law. It is, therefore necessary to identify that the constitutional stipulations for the rule of law provide a crucial foundation for the remedy of judicial review.[47]
Once an order for judicial review is issued by the court, the party may proceed to institute judicial review proceedings where the court may grant the following orders;
- a) Declaring the parties’ rights in respect of any matter to which the administrative action relates
- b) Directing any of the parties to do, or to refrain from doing, any act or thing, the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties.
- Declaration of invalidity of any provision or act that is unconstitutional
This remedy invalidates any law or action that violates the constitution, this is illustrated in the case of Samuel G. Momanyi v. The Hon. Attorney General and Another, Petition in this case the Court struck down section 45(3) of the Employment Act 2007 because it was inconsistent with the Constitution’s articles 41, 28, 48 and 50(1).[48]
- Declaration of rights:
This remedy is a last order, it identifies that a party does indeed have a particular right. The declaration is not a binding order and no contempt proceedings can be initiated in the event of non-compliance.
- Conservatory order or injunction
This remedy refers to an interim order that causes a certain omission or action that causes a violation of rights to stop from ongoing during the time the matter is being determined in court. The following case defines what a conservatory order is; In the case of Al Yusra Restaurant Limited v Kenya Conference of Catholic Bishops and another, Justice Lenoala held that a legal wrong or injury is caused to an individual or to a determinate number of people by reason of constitutional violation or any burden imposed as a result of contravention of any constitutional legal provision, thr High Court has powers to issue appropriate reliefs so that the aggrieved party is not rendered helpless in the eyes of other individuals. The relief is meant to provide the aggrieved party with an interim protection in order not to expose others to preventable perils by inaction or omission.[49]
[1] Njeri Githanga, A Compilation of Summaries of Selected Cases on the Interpretation of the Constitution of Kenya, 2010. Kenya law accessed from http://kenyalaw.org/kenyalawblog/a-compilation-of-summaries-of-selected-cases-on-the-interpretation-of-the-constitution-of-kenya-2010/
[2] Constitution of Kenya, Art 23
[3] Constitution of Kenya, Art 165
[4] A O O & 6 others v Attorney General & another [2017] eKLR
[5] Ibid
[6] Hamisi Mangale Burehe v Director of Public Prosecutions [2019] eKLR
[7] Constitution of Kenya, Art 164
[8] Ibid, Art 163
[9] Ibid, Art 163
[10] Peter Oduor Ngoge V Francis Ole Kaparo & 5 Others [2012] Eklr
[11] Constitution of Kenya, Art 22 and Art 258
[12] Ibid, Art 22.
[13] Ibid, Art 258.
[14] Nairobi HCCA No. 1 of 2010
[15] Civil Appeal No. 290 of 2012
[17] Legal Notice No. 117, The Constitution Of Kenya (Protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013
[18] Constitution of Kenya 2010, Art 22
[19] Legal Notice No. 117, The Constitution Of Kenya (Protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013, Rule 3 (3)
[20] Nicolaas Hendrick Claassen v Commissioner of Lands & 4 Others [2016] eKLR
[21] The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,Rule 5(a)
[22] Ibid, Rule 5(b)
[23] Ibid, Rule 5(c)
[24] Ibid, Rule 5 (e)
[25] Friend of the Court & The 2010 Constitution: The Kenyan Experience and Comparative State Practice on Amicus Curiae. Christopher Kerkering Christopher Mbazira. (2017)
[26] Ibid, Rule 6
[27] Ibid rule 7
[28] Ibid rule 9
[29] Ibid, rule 9
[30] Ibid, Rule 10
[31] The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,rule 11
[32] Ibid, rule 14
[33] Ibid, rule 15
[34] Ibid, rule 15
[35] Ibid, rule 16
[36] Ibid, rule 20
[37] Ibid, rule 21
[38] Ibid, Rule 22
[39] Constitution of Kenya, Art 165(4)
[41] Mohan Galot and Another vs Attorney General and 4 others
[42] James L. Cavallaro and Emily J. Schaffer (2004-2005), “Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas” in Hastings Law Journal 56 (2), pp. 217 281.
[43] Malcolm Langford, “From practice to theory: the justiciability of social rights”, in Malcolm Langford, Social Rights Jurisprudence: Emerging Trends in Comparative and International Law, Cambridge UP, Cambridge, 2008
[44] The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,rule 8
[45] Ibid, rule 8(2)
[46] Constitution of Kenya, 2010, Art 23(3).
[47] Fordham, M., 2012. Judicial review handbook. Bloomsbury Publishing
[48] Samuel G. Momanyi v. The Hon. Attorney General and Another, Petition No. 341 of 2011
[49] Al Yusra Restaurant Ltd v Kenya Conference of Catholic Bishops & another [2017] eKLR