Public interest litigation can be defined as the process where members of the public file cases in court on matters affecting them. This is something that has been made possible due to the changes the 2010 Constitution of Kenya brought about.
Previously, the legal profession seemed to be the preserve of lawyers only. But increasingly, we can see non-lawyers presenting cases in court in the public interest. Notable figures who are renowned in this field are the current Busia Senator Okiya Omtata and Isaac Aluochier, an arbitrator with a keen interest in political matters.
To appreciate the import of public interest litigation, it is important to understand our history. To present a case before a court of law, one has to establish their standing, what in legal jargon is referred to as locus standi. Simply put, this is one’s capacity to appear before the court. You are presenting the case before the court, but as who? Who are you?
Before the promulgation of the 2010 Constitution, one could only present a case in court if it directly affected them. A famous case in point is that between the late Prof Wangari Maathai and Kenya Times Media Trust Ltd. Wangari Maathai sought orders from the court barring Times Media Trust from building a complex at Uhuru Park. From her point of view, this was inspired by the fact that it would be destructive to the environment.
It was, however, difficult for her to have legal standing as she had to prove how this construction would directly affect her. The court held the view that she did not show that she has a right to bring forth a case against the alleged breaches since only the Attorney General could bring suits in the public interest. This, of course, posed a challenge of conflict of interest, where it was the executive committing wrongs.
It further proceeded to state that her assertion that the building should not be put up in the interest of many people who were not consulted was frail, as buildings were put up every day without people being consulted. “She thinks this is a special case. Her views are immaterial,” the court said in dismissing the case.
Determined to protect the park, Wangari Maathai rallied citizens to participate in protests that led to the government shelving the plans.
With the current Constitution, things are different. Article 22 (2) provides for persons who can bring forth a suit regarding violation, denial, threatening or infringement of a right, besides a person acting in their own interest. This can be a member of the public acting in the public interest, a person acting on behalf of another who cannot act in their own name (for example, a minor), a person acting on behalf of a group of persons, or an association acting in the interest of its member(s).
It is against this backdrop that we have seen members of the public appear in court or being represented, notably in the cases challenging the constitutionality of the BBI bill, and more recently in the 2022 Presidential Election petitions.
Courts often declare that each party bears its costs in these suits to avoid discouraging people from lodging such cases.
