Constitutional Litigation Pre-2010. Jurisdiction to determine constitutional questions

Constitutional Litigation Pre-2010.
- Jurisdiction to determine constitutional questions

In the pre-2010 constitutional dispensation the jurisdiction to determine constitutional questions was largely vested in the High Court and the Court of Appeal. The High Court was conferred with unlimited original jurisdiction in civil and criminal matters,[1] in which context constitutional applications could by implication generally belong.[2] Furthermore, where a question as to the interpretation of this Constitution arose in proceedings in a subordinate court and the court was of the opinion that the question involved a substantial question of law, the court was allowed to refer the question to the High Court.[3] This was in fact obligatory if a party to the proceedings requested that the matter be requested for the referral.[4]

The Constitution also conferred on the High Court the jurisdiction to protect property right so that every person having an interest or right in or over property which is compulsorily taken possession of, or whose interest in or right over any property is compulsorily acquired, has a right of access to the High Court the person’s interest or right and the prompt compensation thereof.[5] This would be by way of appeal from the Land Acquisition Compensation Tribunal established under the Land Acquisition Act.[6]

The Constitution also allows citizens to have recourse to the High Court for the enforcement of fundamental rights and freedoms (which are provided for in Sections 70 to 83).[7] Furthermore, if in proceedings in a subordinate court a question arose as to the contravention of any of the provisions of Sections 70 to 83 (inclusive), the person presiding in that court could (and was required if any party to the proceedings so requested) refer the question to the High Court unless, in his opinion, the raising of the question was merely frivolous and vexatious.[8] The Chief Justice was granted the power to make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under Section 84 (including rules with respect to the time within which applications may be brought and reference shall be made to the High Court).[9]

The Court of Appeal had appellate jurisdiction over matters determined by the High Court only to the extent that these were conferred on it by law. In situations of Constitutional litigation, section 84(7) of the Constitution vested in the Court of Appeal appellate jurisdiction over decisions of the High Court in the exercise of its enforcement jurisdiction under Section 84 of the Constitution. No such jurisdiction was conferred as regards general constitutional interpretation (provided for in Section 67) or jurisdiction to protect property rights (conferred under Section 75). However, situations would arise situations would arise where in the course of dealing with appeals arising from lower tier courts, constitutional arguments that had hitherto not been raised in the said courts are raised at the Court of Appeal. [10]For instance, in Rafiki Enterprises vs. Kingsway Tyres and Automart Ltd Ltd [1996] eKLR the Court of Appeal was of the view that if and when a matter touching on the interpretation of the Constitution arises in Court of Appeal, the court must itself determine that issue as part of the problems of law it is called upon to deal in the exercise of its appellate jurisdiction.[11]

A Gazette Notice (Number 300 dated 10th January 2007) was later issued that all judicial review proceedings under Order 53 of the Civil Procedure Rules and constitutional applications and references must be filed at the Central Office Registry of the High Court in Nairobi except where leave of the Chief Justice is obtained for filing in any District Registry.[12] This generally made it open to other courts to determine constitutional questions with leave from the Chief Justice, whose discretion in this regard was unguided.

In constitutional litigation there was need to meet a certain threshold when a person was seeking redress from the High Court involving references to the Constitution. In Anarita Karimi Njeru vs. Attorney General [1979] KLR the High Court required parties to set out with reasonable precision that of which the parties complain, the provision said to be infringed and the manner in which they are alleged to be infringed.[13] Other cases such as Kamlesh Mansukhlal Damji Pattni vs. Attorney General ([2001] KLR and Meme vs. Republic & Anor ([2004]. In the case of Nation Media Group Ltd Vs Attorney General High Court Misc Civil Application Number 821 of 2002, it was held that a person alleging violation or likelihood of violation of his or her Constitutional rights under Chapter V of the (then) Constitution of Kenya must set out his or her complaint in the clearest possible manner.[14] To do so, the following areas ought to emerge with sufficient clarity in the Application papers filed in Court:[15]

(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.

(b) The section of the Constitution which creates and gives the Constitutional right that is under violation or under threat of violation.

Rules of practice and procedure for the determination of constitutional questions in Kenya

For some time, the High Court of Kenya took the suspect position that, in the absence of rules of practice and procedure promulgated under Section 84(6) of the Constitution by the Chief Justice, one could not approach the Constitutional court for the enforcement of fundamental rights and freedoms.[16] This was the position in the case of Gibson Kamau Kuria Vs. The Attorney General High Court Miscellaneous Case No. 550 of 1988. – In this case, the applicant who had his passport seized by the government through its agents had requested for the return of the same because he wanted to travel outside the country, which request was denied.[17] He, therefore, made an application under Section 84(1) of the Constitution saying that the government’s action was contrary to Section 81 of the Constitution, which guaranteed every individual the right to move freely and, therefore, his right to move freely in and out of Kenya.[18]

The Court in dismissing this application stated that it lacked the jurisdiction to hear the matter since the Chief Justice had not made Rules of practice and procedure as envisaged by Section 84(6) of the Constitution.[19] The High Court in the case of Maina Mbacha and 2 Others vs. The Attorney General High Court Miscellaneous Civil Application No 356 of 1989 upheld this reason when the court divested itself of jurisdiction by stating that Section 84 of the Constitution was inoperative and the applicants’ application under the subsection was, therefore, dismissed.[20]

However, in 2001, Hon Mr. Justice Bernard Chunga, C.J (as he then was) promulgated The Constitution of Kenya [Protection of Fundamental Rights and Freedoms of the Individual] Practice and Procedure Rules 2001 ( via Legal Notice No. 133 of 2001.)[21] These rules were made pursuant to the rule-making discretion vested in the Chief Justice pursuant to Section 84 (6) and were popularly referred to as the Chunga Rules.[22] The rules made provision for three circumstances under which one could move the High Court under Section 84:[23]

Where an accused person in a criminal case or party to a civil suit in a subordinate court alleges contravention of his fundamental rights or freedoms under Sections 70 to 83 inclusive of the Constitution in relation to himself;
Where contravention of fundamental rights and freedoms is alleged otherwise than in the course of proceedings in a subordinate court or High Court; and
Where violation of fundamental rights and freedoms is alleged in any proceedings pending in the High Court.

Thereafter, by the instrument of Legal Notice No. 6 of 2006 the Hon. Chief Justice Evan Gicheru promulgated the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006, also known as the Gicheru rules.[24] These rules made provision for the Practice and Procedure of the High Court in the exercise of its supervisory jurisdiction under Section 65 of the Constitution, interpretive jurisdiction under Section 67 of the Constitution and enforcement jurisdiction under Section 84 of the Constitution.

Remaining part

It is curious to note that the Hon Chief Justice purported to make rules of practice and procedure pursuant to section 67 of the Constitution whereas no such rule making power is donated under the said section of the Constitution. It would, therefore, appear that the rules made under Section 67 of the Constitution (Rules 7 to 10 of the Gicheru Rules) were made in excess of the Chief Justices’ rule making powers and an argument could be sustained that they are null and void for having been made ultra vires the powers of the maker.
Procedure in respect of the Supervisory Jurisdiction of the High Court.
The rules prescribe that a party who wishes to invoke the jurisdiction of the High Court under Section 65 of the Constitution moves the court by way of Originating Notice of Motion (Rule 2 of the Gicheru Rules).
The motion should set out the concise grounds for the application, and should be supported by the applicant’s affidavit (Rule 4 of the Gicheru Rules). The format of the Motion is spelt out in the schedule to the Rules (See Rule 3 of the Gicheru Rules as read with Form A in the Schedule to the Rules.)
Upon filing the Motion, the Registrar should place the motion before a judge for directions within seven days from the date of filing (Rule 5 of the Gicheru Rules).
The High Court is also given the discretion, in exercise of the powers conferred by Section 65(2) of the Constitution, to move on its own motion (Rule 6 of the Gicheru Rules).
Procedure in respect of the interpretive jurisdiction of the High Court.
To invoke the interpretive jurisdiction of the High Court, two situations are provided for under the Rules, namely, where the subordinate court, of its own motion forms an opinion that there is a question as to the interpretation of the Constitution, and, where a party to proceedings alleges that there is a question as to the interpretation of the Constitution.
In the first situation, the rules provide that the court has the discretion to refer the question to the High Court in a prescribed format (Rule 7 as read with Form B to the Gicheru Rules) in the second case, the subordinate court is expected to first form an opinion whether the allegation involves a substantial question of law.
The procedure is for the party to informally request the presiding officer of the court to refer the question to the High Court and the court to do so in a prescribed format (rule 8 as read with Form C to the Gicheru Rules.) In both cases, the subordinate court must concisely state the issues and its opinion and, within fourteen days refer the question to the High Court (Rule 9 of the Gicheru Rules.)
Upon receipt of the reference, the Registrar should, within seven days, place the matter before the Chief Justice to constitute a bench in accordance with the provisions of Section 67(3) of the Constitution, unless there is an interlocutory matter in the reference, in which case the Registrar should place the matter before a judge for determination (Rule 10 of the Gicheru Rules.)
As already noted, the legal validity of the rules under the interpretive/reference jurisdiction of the High Court is highly questionable. So far, no question challenging the same has been raised for determination.
Procedure under the Enforcement Jurisdiction of the High Court.
As noted earlier, this is the jurisdiction vested in the High Court by section 84 of the Constitution. The jurisdiction is for enforcement of the fundamental rights and freedoms of the individual as contained in sections 70 to 83 (inclusive) of the Constitution of the Republic of Kenya.

Where contravention of any fundamental rights and freedoms of an individual under sections 70 to 83 (inclusive) of the Constitution is alleged or is apprehended.

Although this situation as anticipated by the rules is broadly framed, when read in conjunction with other rules, it presents a situation where such an allegation or apprehension arises otherwise than in the course of any pending court proceedings either in the High Court or subordinate court.
Under these circumstances, the application should be made directly to the High Court by way of petition in a prescribed format (Rules 11 and 12 together with Form D in the schedules to the Gicheru Rules).
Such Petition must be supported by affidavit (Rule 13 of the Gicheru Rules) to which shall be annexed any documents on which a party wishes to rely (Rules 14 of the Gicheru Rules.)
Rule 15 of the rules provides that such petition should, in a criminal case be served upon the Attorney General and in a civil case be served upon the Respondent within seven days of filing.

Where a Constitutional issue arises in a matter before the High Court.

Under these circumstances, the Court seized of the matter is empowered by the rules to treat the matter as a preliminary point and hear and determine the same (Rule 22 of the Gicheru Rules). This prescription is not fully satisfactory; in fact, it raises a number of conceptual challenges.
The first challenge relates to the very nature of a Preliminary Objection. A preliminary objection as described in the case of Mukisa Biscuit Manufacturing Ltd Vs West End Distributors Limited[1969] 1 EA 696 Where Law JA is stated that ‘So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. On his part, Newbold V.P stated that a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion) raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. A constitutional matter, on the other hand, may be predicated on points of fact that form the basis of the Constitutional issue. Insisting that a party raises a matter as a preliminary point, therefore, is very limiting. It presupposes that constitutional questions arising within the proceedings before the High Court do not, themselves, sometimes involve highly contested questions of fact.
Where in proceedings in a subordinate court a question arises as to the contravention of any of the provisions of section 70 to 83 (inclusive).
The rules under this caption envisage a situation where the subordinate court, on its own motion, detects a Constitutional issue touching on the fundamental rights and freedoms of the individual.
It also requires the subordinate court to form an opinion that the issue is not frivolous and vexatious. When these conditions exist, the rules vest in the presiding officer the discretion to refer the matter to the High Court in a prescribed format (Rule 24 of the Gicheru Rules as read with Form E in the schedule to the Rules.)
The rules envisage a situation where a party to proceedings (civil or criminal) makes an allegation of a contravention of his/her rights under sections 70 to 83 of the Constitution.
The procedure requires that, first; the party applies informally to the presiding officer during the pendency of the proceedings that a reference to the High Court is made for purposes of determining the question (Rule 25 of the Gicheru Rules).
The second step is for the presiding officer to satisfy himself/herself that there is merit in the allegation and that it has not been made frivolously or vexatiously, then grant the application.
On granting the application, the presiding officer should frame the questions to be determined by the High Court in a prescribed form (Rule 26 of the Gicheru Rules as read with Form F of the schedule to the Rules).
Within a period of twenty-one days from the date of framing of the questions the subordinate court ought to have referred the questions to the High Court (Rule 27 of the Gicheru Rules).
When the Registrar receives the reference he/she should place the matter before the judge within seven days to fix a hearing date and further directions (Rule 28 of the Gicheru Rules). During the tenure of the previous Chunga rules, an application filed under Section 84 of the Constitution within the framework of pending proceedings operated as an automatic stay of those proceedings pending the hearing and determination of the Constitutional issue.
Under the Gicheru rules, the High Court, may on an application by a party to the proceedings order that all further proceedings before the subordinate court shall be stayed pending the hearing and determination of the reference (Rule 29 of the Gicheru Rules).
When questions are framed in a reference from a subordinate court, only those questions framed in the prescribed form are to be raised. As a matter of litigation strategy, it is, therefore, advisable that as many questions as reasonable are raised informally before the presiding officer.
Procedurally, where a party intends to rely on any reported or unreported case or quote from any book, such party should lodge with the court and serve copies of the reported or unreported case or quotation two days before the hearing (Rule 31 of the Gicheru Rules).
The court is procedurally required to give priority to all applications and references to the High Court over all other cases and to hear and determine such applications and references expeditiously (Rule 32 of the Gicheru Rules).
When the High Court hears and determines the Constitutional applications, it may on an informal application upon delivery of judgment or ruling grant a stay for fourteen days pending appeal.
An appeal to the Court of Appeal under Section 84(7) of the Constitution is to be governed by the Court of Appeal rules (Rule 34 of the Gicheru Rules. The Court of Appeal Rules are the subsidiary legislation to the Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya).
Consequences of non-compliance
Ordinarily, rules of procedure are regarded as the handmaiden of justice and not a master of the same. They ought to facilitate the realization of substantive justice and ought not to be an impediment to substantive justice. In Kenya, particularly in Constitutional litigation, the converse appears to be the position. The question of the consequence of failure to comply with the letter of the law under the Constitution of Kenya [Protection of Fundamental Rights and Freedoms of the Individual Practice and Procedure] Rules 2001 has been a subject of judicial consideration.
Livingstone Maina Ngare Vs the Attorney General & AnorLivingstone [2004] eKLR (the Ngare Case); William Birir Arap Chelashaw Vs Attorney General & Anor Nairobi High Court Miscellaneous Criminal Application No 898 of 2003 (the Chelashaw case); Speaker of the National Assembly Vs Njenga Karume C.A 92/92- In our view there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an act of parliament that procedure should be strictly followed.
We wholly agree with this principle of law.
Is it Permissible to use the Procedure of Judicial Review to seek Enforcement of Constitutional Rights?
Republic Vs Kenya Roads Board ex parte John Harun MwauNairobi High Court Miscellaneous Civil Application No 1372 of 2000.
Consider this case- Republic Vs Hon. Chief Justice of Kenya & Others Ex ParteRoseline Naliaka Nambuye Republic v Chief Justice of Kenya & 5 others Ex parte Roselyn Naliaka Nambuye [2004] eKLR.
Actions that violate human rights could equally qualify as administrative mal-practices which warrant judicial intervention by way of judicial review or an action for enforcement under Section 84. An action for enforcement of fundamental rights and freedoms of the Constitution under Section 84 is available without prejudice to any other action with respect to the same matter that is lawfully available. Logically, one of the lawful avenues for redress may be judicial review but the applicant can choose to go by either, or even both.
Who can espouse a constitutional dispute?
The rules of locus standi in constitutional litigation have, in some instances, been interpreted liberally while in others they have been construed quite strictly, pedantically, and eclectically.
Kenya Bankers Association & Others Vs. Minister for Finance& Another (No. 4) – what gives locus standi is a minimal personal interest and such an interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population. The precondition of being an aggrieved person and other technical objections, cannot bar the jurisdiction of the court, or let justice bleed on the altar of technicality.
Timothy Njoya & 6 Others Vs. Attorney General & 3 Others (No. 2) [2004] 1 KLR 261- The scheme of protection of fundamental rights envisaged by our Constitution is one where individual, as opposed to community or group rights are the ones enforced by the courts. Section 84(1) of the Constitution is clear. The emphasis is clear. Except for a detained person for whom someone else may take up the cudgels, every other complainant of an alleged contravention of fundamental rights must relate the contravention to himself, as a person. Indeed the entire chapter 5 of the Constitution is headed Protection of Fundamental Rights and Freedoms of the Individual. There is no room for representative actions or public interest litigation in matters subsumed by Section 70 & 83 of the Constitution.
Patrick Ouma Onyango and 12 Others Vs the Honourable Attorney General and 2 Others (Onyango & 12 others v Attorney General & 2 others (2008) 3 KLR (EP)) 84 was one where the question of the locus standito espouse a Constitutional dispute on a matter of public interest was material- It would be a violation of the right to self-expression under Section 79 of the Constitution if either the Applicants were denied a right to be heard whether individually or in turns or chose to express themselves through one representative hence the applicants like a corporation have locus standi to bring this application.
It is noteworthy that to the best of our research, the Court of Appeal has not rendered itself on this issue of locus standi. What, therefore, remains is the disharmonious jurisprudence from the High Court. In terms of numbers, there is greater support for the permission to public interest litigation and representative action than the restriction to individual action in constitutional and fundamental rights litigation in Kenya.