Public interest litigation refers to a legal action, initiated before the court of law for the enforcement of interest of public. It is a deterrent commonly utilised to seek judicial redress after government failure to address a constitutional question.
The 2010 Constitution contains two articles touching on public interest litigation. The first is Article 22, which touches on enforcement of the Bill of Rights and Article 258, which provides that every person has the right to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention.
To understand the genesis of this form of litigation, one has to put into perspective what entails public interest. Public interest is something in which the minority or disadvantaged groups or individuals have some pecuniary interest or some interest by which their legal rights or liabilities are put into question or infringed upon.
The High Court ruling on the appropriation and management of the Equalisation Fund has exemplified the strategic role public litigation offers. Two observations are worth making at this point about the Equalisation Fund ruling.
Firstly, the High Court ruled that the Commission on Revenue Allocation has constitutional and statutory powers to make recommendations on the areas listed in Articles 204 and 216 of the Constitution as well as Section 10 of the CRA Act. To this end, CRA’s mandate is not limited to identification of areas in marginalisation policy but, to put emphasis on this, the CRA’s policy recommendations on the Equalisation Fund are binding. This effectively means the fund can only be disbursed by the national government in accordance with the recommendations made by the CRA.
The objective of strategic litigation is to introduce a systemic change that the centre, or the status quo, is unwilling to initiate or cede. Any transition, be it constitutional, change in public policy or government structure, is notoriously difficult, especially for bureaucrats accustomed to the old way of doing business. Structural changes to any of the mentioned areas cannot be expected to originate internally and if they do, most happen to be measly without any regard for the spirit of the changes envisioned.
Perception matters, be it in politics, business or the practice of law. For progressive public interest litigation to find favour and win new converts, we need to litigate with a view of winning hearts and minds of the Kenyan public. Litigants cannot allow public interest litigation to be portrayed as an exclusive domain for non-state actors. Third-party or amicus-style intervention in legal cases touching on devolution matters can make important contributions to the interpretation of the law as well as promote an understanding of the needs
There are several factors in strategic litigation that are optimal for devolution. One such area for contestation is the piecemeal approach adopted in the transfer of functions to counties under Schedule 4 of the Constitution. This lacklustre approach presents a challenge to the original conception of devolution, which presupposed a seamless transfer of functions from national government to county government. The 47 governments are now more than capable of handling more devolved functions than the long-held disbelief about their capacities.
Revenue allocation is also proving to be a divisive issue. By law, counties are entitled to least 15 percent of the total national revenue collected. The national government is, however, not precluded from allocating more than 15 per cent. There is need to adopt the maxim ‘money follows functions’ in sharing finances between the county and the national government.
There is no doubt that public litigation has its fair share of challenges. From capacity constraints to low funding and lack of legal expertise in counties, all these ingredients, coupled with the fear of potential unintended consequences, such as fear of jeopardising relationship with government, make for an unfortunate cocktail.
This state of affairs should not be viewed as a stumbling block but rather provide an opportunity for strategic collaborations and coalition building with non-state actors for legal and policy victories.
