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November 16, 2018

In praise of Kenya’s Judges

High court judges Isaac Lenaola,Mumbi Ngugi and David Majanja during the hearing of case against the IEBC on the gazettement of county assembly members.Photo/HEZRON NJOROGE
High court judges Isaac Lenaola,Mumbi Ngugi and David Majanja during the hearing of case against the IEBC on the gazettement of county assembly members.Photo/HEZRON NJOROGE

Kenya Law (www.kenyalaw.org) sends out a weekly email with current legal developments, mostly cases decided in our courts. A recent one includedseveral cases showing the judges working hard to make the Constitution a success.

We see the judges at work as they ought to be: not shying away from sensitive issues, standing firm on the rule of law, and not intimidated by the idea of deciding against the state even when it tries to argue “This is a matter of national security”. They are not swayed by emotion, but insist that claims are proved. In these cases we see the poor and slum-dwellers, secessionists and priests accused of homosexual activity (none popular causes) getting justice before the courts.


Sacked priests

The Anglican Church authorities accused three priests of involvement in homosexual activity. After what might be described as a Church kangaroo court (my phrase, not the judge’s) they were fired (or the equivalent).

What was wrong with the Church’s procedure? Judge Byrom Ongaya in the Employment and Labour Relations Court held that the Church failed to follow its own rules, and the procedures under the Employment Act. Proper notice that dismissal proceedings were being started was not given to the claimants. They were not allowed to have lawyers. One priest gave evidence that he was not allowed to call witnesses in his favour.

The Church’s rules said that its own tribunal should use the procedures used by ordinary courts in Kenya. It had clearly not done so. Those procedures should follow the Constitution, particularly Article 50 about fair trial. And the decision of the tribunal had not been approved by the assembled bishops, as the Church’s constitution required.

In fact, in a case of sexual behaviour of this sort the Church rules envisaged that its own tribunal would act following a criminal conviction in the regular courts. There was no such conviction.

The court ordered the priests reinstated and compensated for loss of earnings. (You can find this case at http://kenyalaw.org/caselaw/cases/view/125414/.)


The MRC

In 2010 Mombasa Republican Council—which has the slogan “Pwani si Kenya”—was declared a prohibited organisation under the Prevention of Organized Crimes Act. The ban was overturned in 2012 by the High Court (Judges Mwera, Kasango and Tuiyott).

The Attorney General appealed, and recently the Court of Appeal decided the High Court had been right. Judge Musinga wrote the main judgment, and the other judges (Ouko, Kiage, M’Inoti and Mohammed) agreed. (The case is at http://kenyalaw.org/caselaw/cases/view/123880/.)

The Government argued that it was enough for the government to argue that the ban was a matter of national security without having to prove to the court that this was so. Judge Musinga responded robustly that this approach “is completely unacceptable and has no place in our progressive Constitution.”

The judge also rejected a disgraceful argument put forward by the Attorney General—the guardian of the rule of law under the Constitution. This was that no action taken under the Prevention of Organized Crimes Act can be challenged because it was passed before the Constitution. It is perfectly clear in the Constitution that the human rights provisions apply to all laws, whether passed before or after the Constitution .

The government had violated the rights not only of freedom of association, but to political action (like campaigning for a cause) and to fair administrative action (a fair procedure when making decisions of this sort). And the government had not satisfied the court that this interference was justified according to Article 24 (which allows rights to be limited if really necessary)

The judge tackled the argument that seceding from Kenya is not possible and campaigning for it is necessarily a crime. There is nothing criminal in arguing for secession, he says, provided one does so peacefully. And there would be nothing wrong in actually seceding provided it was done in accordance with the law. This would need an amendment to the Constitution, which, because it would affect the territory of Kenya, would have to be approved by referendum. Incidentally, expanding the territory of Kenya needs only an Act of Parliament. So when the Constitution speaks of a referendum to approve a constitutional amendment about territory, it must be referring to reducing the territory.

The judge was very clear:

[W]e must realize that [Kenya’s] unity cannot be preserved by force, either by the government or communities. It is not unconstitutional for a community to agitate for secession in a constitutional and peaceful manner. On the other hand, it is a violation of the Constitution for the government to use force or proscribe an organization … for pursuing an agenda of secession.


The courts as active protectors of fair trial

The third case is about fair criminal trial (http://kenyalaw.org/caselaw/cases/view/125324/). The petitioner had been arrested and not taken to court for 13 days (the Constitution gives a deadline of 24 hours). Eventually he was tried for robbery with violence after a 20 month trial, and acquitted. He was never released on bail.

The most interesting point is that Judge Onguto insisted that the court should not wait for a person accused to ask for bail, but should take the initiative to prompt the request for bail. This is because the Constitution says that arrested people have the right to bail unless there are “compelling reasons” not to grant it. The courts must, he was saying, be active not passive protectors of rights.

On the question of slow trial, the judge said “There should be no institutional inertia before the beginning of the trial and once the trial commences any glacial motion should be avoided.”

Because the petitioner had been unlawfully detained for thirteen days before being taken to court, because the start of the trial had been unduly delayed, and because the trial court had not raised the issue of bail, the judge awarded Shs15,000 as compensation—not a very generous sum for such loss of liberty, one might think.


Post-election violence

In the last case one petitioner had alleged that her two daughters had died, she had been seriously injured and her house destroyed in the 2007/8 post-election violence in Kibera. (http://kenyalaw.org/caselaw/cases/view/125045/.)

The other petitioner was actually attacked by the police during that period: police came and indiscriminately attacked people, and, when the petitioner protested at their treatment of a woman kiosk owner, the police threatened to shoot. He retreated, and was shot—in the back. The judges (Lenaola, Mumbi Ngugi and Odunga) had little difficulty in deciding that he was entitled to compensation for the police action and awarded him two million shillings for the suffering plus medical expenses.

The woman’s case was harder because her evidence was not strong. And there was evidence that the police had taken extra precautions in Kibera during that time. All the judges could do was to order that the authorities investigate her claim that she was entitled to be treated like an IDP. But they made some important observations. First that it could be discrimination (forbidden by the Constitution) to compensate those who were physically displaced because of the post-election violence but not those who suffered but remained. They described this as “emotional displacement”. Second, the state must not be passive, but must take positive action to investigate claims of human rights violations .


Concluding thoughts

These decisions express the values of the Constitution, particularly about fairness, justice and the rule of law. What have religious organisations, police, the attorney-general, and the judiciary itself, done to instruct themselves and their staff into law as expounded by the courts? The importance of a judicial decision is not just to the case in question, but also for the education of the general public and the improvement of systems.


The author is a Director of the Katiba Institute. That body was an amicus curiae in the MRC case, but the author was not directly involved in the case.

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