DEFINITION AND EXPLANATION OF CONSTITUTIONAL LITIGATION
What constitutional is litigation
Matters as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State.The interpretation, application and upholding of the Constitution are also constitutional matters. The function of Constitutional Litigation is to protect/vindicate fundamental rights of citizens and to supervise the government’s legislative activities.
- INTERPRETATION OF THE CONSTITUTION
When courts decide Constitutional cases, they do more than interpret a statute. Decisions of Constitutional courts often are like volcanic eruptions, reshaping the landscape of political and administrative action, usually in small ways but occasionally in large ones. Constitutional litigation has also become a well-established form of political action. Political groups, having failed to get their way in legislatures or administrative agencies frequently ask courts to overturn legislative or administrative policies on the grounds that they violate principles inferred from Constitutional provisions. Judges sometimes agree and ask governments to take remedial measures.
The challenges that face constitutional litigation may include;first, the fact that the Constitution is both a political charter and a legal document makes its interpretation a matter of great political significance, and sometimes controversy. Second, the court’s interpretation of the Constitution by way of judicial review is equally controversial as it is essentially counter-majoritarian. A non-elected body reviewing and possibly overruling the express enactments and actions of the elected representatives of the people would raise the issue of legitimacy. Thirdly, however defined, the Constitution is an intricate web of text, values, doctrine, and institutional practice. It lends itself to different interpretations by different, equally well-meaning people.[1] Fourthly, the Constitution contains conflicting or inconsistent provisions that the courts are called upon to reconcile, and at other times the Constitution implicitly creates a hierarchy of institutions or values and the courts are called upon to establish the order of importance. Fifthly, at times, the Constitution is vague or imprecise or has glaring lacunae and the courts are called upon to provide for the unwritten part.[2]The above character of the Constitution makes the jurisprudence of the courts that exercise jurisdiction over Constitutional matters, and, therefore, the interpretation of the Constitution, to be of specific concern to a student of the judiciary and the judicial process.[3]The capacity of courts to evolve a coherent and principled approach to the interpretation of the Constitution is absolutely essential for the legitimacy of the Constitutional democracy.
- Initiating a Constitutional Litigation action on the basis of individual standing is envisioned in Articles 22(1) and 258(1), which grant a person who is directly affected by an action to institute proceedings against the perceived perpetrators. Individuals approaching the courts on the basis of individual standing must be prepared to demonstrate their “personal interest” in the relevant matter. Articles 22(2c) and 258(2c) allow Kenyans to institute court proceedings based on public interest. However, the Constitution does not define the idea of ‘public interest’. Instead, those invoking these articles need themselves to demonstrate why their action qualifies as a public interest matter, and ultimately, the courts will determine what constitutes the public interest on a case-by-case basis.
- Articles 22(2) (b) and 258(2) (b) allow individuals to institute constitutional litigation actions on the basis that they are acting as a member of, or in the interest of, a group or class of persons” to enforce constitutional provisions that are under threat or to seek remedy for human rights harms, respectively.[4] The constitution also allows constitutional litigation actions to be instituted by association acting in the interests of one or more of its member.
In June 2013, the Chief Justice gazetted The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013[5] aimed at facilitating the right of Kenyans to institute court proceedings where they believe freedoms under the Bill of Rights have been violated, or there is the threat they will be violated. This progressive set of rules seeks to reduce formalities and free the courts from unreasonable procedural restrictions in order to expand the options of access to justice for all persons as required by Article 48. The rules also specify the forms of admissible evidence, the criteria of admission of ‘friends of the court’ (amici curiae) or interested parties, and sets out guidance on when parties in a matter can resort to out-of-court settlements or other Alternative Dispute Resolution (ADR) approaches.
- 4. In addition, Article 22 provides that formalities are to be kept to a minimum, and the court may “entertain proceedings on the basis of informal documentation” this can be traced to what in India is called “epistolary jurisdiction”. This idea is also reflected in the Chief Justice’s Rules, which say “Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedoms. Article 22 (3) (c) says no fee may be charged for instituting proceedings under the Article; this has not been properly reflected in the Rules and may be an issue of some controversy given that the Constitution seems to have outlawed filing charges on constitutional litigation matters, although some argue that it discourages but does not outlaw fees. These access-broadening provisions apply only to human rights cases[6] Constitutional litigation cases are not necessarily constitutional cases, so a case based on contract, tort or some other area of the law is governed by the usual rules, however much the case is of public interest.
What amounts to a Substantial Question?
Article 165 (4) of the Constitution makes reference to substantial questions of law that may be heard by an odd numbered panel of judges not less than three who are assigned by the Chief Justice. However, the phrase has not been defined within the constitution leaving the courts to interpret the same.
It calls for a discussion for alternative view
Nation Media Group Ltd Vs Attorney General High Court Misc Civil Application Number 821 of 2002, that ?a person alleging violation or likelihood of violation of his or her Constitutional rights under Chapter V of the Constitution of Kenya must set out his or her complaint in the clearest possible manner. To do so, the following areas ought to emerge with sufficient clarity in the Application papers filed in Court:
(a) The nature of the alleged violation of the Constitutional Rights
(b) The person or persons or authority or Institution alleged to be responsible for the violation or likelihood of violation.
(c) The manner of the violation or likely violation
(b) The section of the Constitution which creates and gives the Constitutional right that is under violation or under threat of violation.?)
Identify, selecting and using expert witnesses
Because expert witness evidence can be such an important factor, there can be much at stake for litigators in the process of finding and selecting an expert. Determining if an expert is needed, and if so, what kind, are the two questions that lawyers must address before beginning a search for an expert witness.
Once the decision is made to use an expert, counsel must next consider when to engage the expert. With few exceptions, it should be done as early as possible for the following reasons:
It increases the chance that your client will be able to retain the expert best suited for the case and that your chosen expert will not be snapped up by the other side. It allows lawyers to use the expert to add input on often-valuable early-stage questions, such as whether or not the case is worth litigating, potential settlement value, identification of key technical, economic, or financial concepts or issues, and to assess whether the expert’s findings and opinions have implications for other parts of the legal strategy.
Early participation helps the expert to develop the most effective opinion, as he or she will benefit from sufficient time to do appropriate research as well as the ability to ensure that the data and information central to the expert’s opinion can be collected and made available for analysis.
Naming of Respondents in a Constitutional Litigation
Because of the possible policy implications that may come up from a Constitutional litigation matter, ensuring that the proper Defendants are named is important. This may not be a problem in litigation where the government is the Defendant, as naming the Attorney General is usually sufficient to ensure that orders issued by the courts will bind the government.
There are, however, some situations where naming individual organs of state as Defendants is strategic. Independent Commissions, for example, should be named as Defendants if their actions are at issue. The rule of thumb should be to include everybody whose behavior is in question or against whom any remedy is sought. If there is refusal to obey an order, and contempt proceedings arise, it is important to be able to show who was bound by the court’s order.
Procedural issues
When a Constitutional litigation practitioner considers where to lodge a case, relevant factors are, which place has the greatest connection to the matter at hand, what division of the court is most competent to handle the matter, which court is more convenient for Petitioners, is the case likely to need hearing by a bench of more than one judge, and if so would this cause unacceptable delay in the particular place, is a case brought in one area more likely to provide better opportunities for media attention for the case, how important is local involvement and how will this be affected by where the case is heard.
The Constitution does not provide a specific process to be used in instituting court proceedings[7]. There are different ways to start a matter at the High Court. In civil cases, there are three established ways to do it: by plaint, judicial review or Petition. A plaint is the document filed to start a matter at the High Court relating to a tort claim or breach of contract and mostly used where no other mechanisms of moving the court (starting a legal claim in court) are available. A judicial review is the process through which one asks the High Court to review a decision made by a tribunal or an administrator who is exercising quasi-judicial function. Finally, a Petition is the mechanism generally used to start a claim of Constitutional violation. The Article 22 Rules do not define what a Petition is, instead choosing only to define a Petitioner as “any person who institutes proceedings …” under the rules. The Rules further contemplate that court proceedings started on the basis of Article 22 are to be started by way of Petition.
Expert evidence
Engaging expert evidence can be an integral part of the litigation strategy in Constitutional litigation cases. Experts can be particularly useful in providing evidence that can shed light on difficult questions and complicated facts in a given case. In Kenya, expert witnesses have been identified and used by constitutional litigation organizations in a number of cases touching on social rights. For example, in September 2011, Miloon Kothari, one of the world’s foremost experts on housing rights,
[1]Kagan, RA., Constitutional Litigation in the United States, in Rogowski , R., Gawron, T (Eds) Constitutional Courts in Comparison: The U.S Supreme Court and the German Federal Co unconstitutional Court at pp 25, 26.
[2] .Muigai, G., 2004. Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation, East African Law Journal, Vol 1 p 1.
[3]Githu Muigai, The Judiciary in Kenya and the Search for a Philosophy of Law: The Case of Constitutional Adjudication, in, The International Commission of Jurists, Constitutional Law Case Digest Vol II, Nairobi, 2005 P 159.
[4] However, not all cases brought to courts on this basis will be public interest cases as the two provisions can and do accommodate cases of a private nature.
[5] www.kenyalaw.org
[6] So are not in Article 258, unlike the broader standing rules.
[7] Articles 22 and 258 of the Constitution of Kenya (2010) state that each person has the right to institute court proceedings if there is reason to believe that the Constitution has been contravened.