In July of this year I discussed in the Star how state authorities should exercise their constitutional powers and responsibilities, by analysing the approach of the South African Supreme Court of Appeal when it overruled President Zuma’s appointment of the Director of Prosecutions.
It began its judgment with a lengthy examination of the founding constitutional principles which included democracy, rule of law, accountability, responsiveness and openness, concluding that the state must be transformed from “a culture of authority” to a “culture of justification”.
It then turned to the functions and powers of the DPP, to be “exercised with the utmost integrity”, and examined the rule and practice of the independence of prosecution authorities in a number of states—and its centrality to fair process and the rule of law. It emphasized the importance of the method of the appointment of the DPP—such as to gain the “confidence of the public and the respect of the judiciary and the legal profession”.
The court quoted an eminent South African judge who spoke in terms that apply equally to Kenya, “ We moved from a past characterized by much that was arbitrary and unequal in the operation of the law to a present and a future in a Constitutional State where State action must be such that it is capable of being analysed and justified rationally.
The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with those core concepts of our new constitutional order”. So it was with great satisfaction that I read the judgment of the High Court bench of three judges (Justices Mwera, Kasango and Tuiyot) in the Mombasa Republican Council case. In approaching the question whether the government’s ban on the MRC was unconstitutional, the court immediately framed the substantive issue as whether “the Kenyan nation, striving to be open and democratic, should accept the ban as reasonable and justiciable”.
The issue was whether the ban, which violated the MRC’s freedom of expression, assembly and association, was justifiable. The constitution allows limitation of rights only if it is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”—and if it is proportionate to the purpose of limitation.
In reaching its decision the court not only relied on the strict limits on derogation but also followed the directives in the constitution as to its interpretation, that it must promote constitution’s purposes, values and principles, advance the rule of law and human rights, and contribute to good governance.
The High Court concluded that it must take a “generous and purposive” approach to interpretation of rights. In many respects the decision is a model on how to deal with cases involving rights. The government’s argument that the MRC’s petition was too late was swiftly dismissed, on the basis that a party seeking to enforce the Bill of Rights should be able to approach a court with the confidence that it would not be turned away without a hearing.
Its interpretation of the rule on the limitation of human rights is exemplary. First, it said that not only must the limitation pass the constitutional test, but so must the manner in which the law is effected or imposed. In applying the rule that the burden of proving that the limitation is justified is on the government, the court endorsed the approach in South Africa: “By placing the burden of proof on the Government we simply recognize the Government’s unmatched power to shape, manipulate and determine the content of our lives, and require it to justify the use of its power in areas in which the Constitution tells us we are notionally free.” The court added that the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be.
The court said that, while in principle it would accept the government’s statement on the gravity of an alleged offence relating to national security, where the complaint is that national security is wrongfully invoked to take away a fundamental right the court needs to be judicially satisfied that the action of the state is reasonable and justifiable.
It must place some evidence before court that will enable the court make a judicial assessment; “otherwise the State could make any decision or take any action in the name of national security with the comfort that it will never be required to account for that action”. On a careful examination of the “evidence” produced by the government, the court concluded that it provided no justification linking the MRC to any offence.
Even the criminal charges against MRC members to which the state drew attention were not only alleged to have taken place after the ban, but had little connection “to propaganda for war, incitement to violence, violence itself, hate speech or advocacy of hatred”. The court exposed various misleading statements by the government about the conduct of the MRC, and criticized it for its less than “fair effort to demonstrate that the State is justified in limiting the fundamental rights of its citizens”.
The court said that there “can be no democracy without pluralism”. The freedom of expression is important “not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend shock or disturb.” So in a free and democratic society, we are expected to put up with some defiance, dissent and controversy. But the state had used “the most restrictive means available under the law”.
The court was not unaware that its decision would upset many people, but obviously considered that its higher fidelity was to the rule of law. Another positive aspect of the court’s approach was to its willingness to use historical materials on the drafting of the constitution, as well as relevant case law from other jurisdictions, enriching our own jurisprudence.
The criticisms by the court of the conduct of the government (both in its victimization of the MRC and the misleading way the “evidence” was presented to the court) should be heeded by the Attorney General. All too often lawyers representing the government are poorly briefed, show no understanding of the constitution, and are hostile to human rights. Admittedly much of this took place under the watch of Amos Wako. We justifiably have higher expectations of Githu Muigai, but he needs to pay more attention to how lawyers speak in his name.
Yash Pal Ghai, a director of the Katiba Institute, is currently chairing the Constitution Commission in Fiji.