To earn citizens’ confidence, Judiciary should let public interest prevail

In Summary

• Public interest can be loosely described as the welfare and good of the general public.

Supreme court of Kenya.
Supreme court of Kenya.
Image: FILE

One pillar of a modern representative, democratic system of government is the concept of public interest. Also an established principle in public administration, it demands that the interests of the wider society be taken into account in decision-making. As such, the public interest usually supersedes private or sectional interests in public decision-making processes.

Public interest can be loosely described as the welfare and good of the general public. But the courts and legal experts have been reluctant to prescribe a definition for the term ‘public interest.’ Instead, they approach it from a broad perspective depending on the merits and circumstances of each case.

As Lord Hailsham in the UK House of Lords said in the case of D versus National Society for the Prevention of Cruelty to Children, “the categories of public interest are not closed.” Again, this goes to show the rather liberal jurisprudential approach to the notion of public interest.

That said, courts have gone ahead to identify issues that constitute the public interest. This include but are not limited to the following: public health, security, law and order, environmental protection, consumer rights, privacy and national defence. These are generally issues that the public in its totality has a considerable stake in.

As a legal concept, public interest applies to both elected and non-elected officials, and to the three arms of government: Executive, Legislature and Judiciary.

As Chris Wheeler, a noted jurist and a leading authority on the subject writes, “public officials have an over-arching obligation to act in the public interest.” This means administrators, legislators and judges cannot ignore the impact their decisions on issues of public interest.

Also, it is generally accepted that the term ‘public interest’ ought to be distinguished from ‘what is of interest to the public’ or ‘what is of interest to know.’ In the Australian case Sinclair versus Mining Warden at Maryborough the court pronounced that public interest is not the same as that which may be of interest to the public.

Although a particular issue, say a sex scandal involving a public figure, may elicit widespread controversy, it may not necessarily be an issue of public interest. Unless, of course, there is suspected pedophilia or rape in which case the public interest in protecting children and preventing sexual crimes comes into play. Otherwise, such should be regarded as a private matter.   

Protecting the public interest therefore requires a balancing act involving competing public interests. For example, the public has a significant interest in public order and safety. Citizens therefore expect the courts to take this into account when handling cases of terrorism and other serious crimes.

In yet another Australian case McKinnon versus Secretary, Department of Treasury the court declared that public health, national security, anti-terrorism, defence or international obligations “may constitute over-riding interests when compared to other competing interests.”

This clearly shows the primacy of the public interest. Our courts and the Judiciary as a whole should bear in mind that protecting the public interest does not necessarily equate to violating or denying individual rights even in cases involving serious offences including terrorism. While each case should be considered on its merits, the wider public good should always prevail.

That is the only way our courts can be seen to be independent and committed to upholding justice in a democratic society. I am not saying that private and individual rights and interest don’t matter. In a democratic polity, courts should uphold the rights of all citizens. My point however is that our Judiciary should be eternally vigilant against cartels pursuing private interests disguised as the public interest.

This is most pronounced in cases involving corruption and other crimes of an economic nature where suspects will attempt to stall the process by pleading all manner of violation of their rights. They seek to delay cases in order to defeat justice. Courts should reject such attempts at every turn.    

By upholding the public interest, our courts will once again regain the confidence of citizens. Independence of the judiciary can only flourish where judicial officers are seen by the public to be protecting and defending the wider interest of the society as opposed to pandering to narrow, partisan and personal interests.

Mr. Rienye is an Advocate of the High Court of Kenya.