KATIBA CORNER

Conservatory orders: Important but sometimes puzzling court procedure

Deciding to issue a conservatory order is not easy, it is refreshing the court took the process seriously – something we should demand of all branches of government

In Summary

• The High Court’s ruling preventing the IEBC from preparing for a referendum will likely please few.

• Courts, however, were not created to make people happy, but to do just what the High Court did here,

President Uhuru Kenyatta and ODM leader Raila Odinga as they received the BBI report at the Kisii State Lodge on October 21. 2020.
BBI REPORT: President Uhuru Kenyatta and ODM leader Raila Odinga as they received the BBI report at the Kisii State Lodge on October 21. 2020.
Image: ANGWENYI GICHANA

When the IEBC concluded that the BBI bill had received the necessary signatures last month, it moved the BBI Constitution amendment process to a new stage.

On Monday this week, however, the High Court threw a spanner in the works by issuing a conservatory order preventing the IEBC from preparing for a referendum. This is likely to stall the BBI process for several months, at least, and will keep the referendum from occurring as quickly as the BBI proponents had hoped.

CONSERVATORY ORDERS

Conservatory orders like the one issued on BBI are powerful remedies that are often misunderstood. That is especially true where, as here, the political stakes are high and the issues controversial. Unpacking what a conservatory order is and when it can be applied may help explain the court’s decision to put the IEBC’s referendum preparations on ice.

A conservatory order, at its most basic, is a decision by a court to ensure things do not change while a case is being decided — it preserves the status quo. Conservatory orders are usually requested at the beginning of a case, but, as here, they can be requested after the litigation has started, if there is a significant change in circumstances.

The party applying for a conservatory order must satisfy three requirements: First, the applicant must show the case has merit. Although this requirement is not high — the applicant must only show the case is arguable, not that it is likely to win — it ensures that applications are made in good faith and not to gain an unfair advantage over others.

The second requirement lies at the heart of why a conservatory order may be necessary. An applicant must show there is a real and imminent danger that the applicant’s legal rights or claims will be irreparably damaged, if a conservatory order is not issued. A real danger is one that is not theoretical but is present and happening. An imminent danger is one that must be dealt with immediately. It is not an issue that is on the horizon or that be can be put off, but one that must be addressed now.

An everyday example may help explain the difference between dangers that are theoretical and not immediate from dangers that are real and imminent. A general fear of matatus may be legitimate, but does not mean they pose real or imminent threats.

A matatu with failing brakes bearing down on you, however, is a real and imminent threat. It requires you to decide whether to swerve, speed up, or slam on the brakes. A conservatory order is a way of slamming on the brakes. It allows the court to use its power to prevent real and imminent harms from occurring.

But before slamming on the brakes, the court must consider a third issue: Whether a conservatory order is in the public interest and is supported by the Constitution. To be in the public interest the court must determine whether its decision is just, equitable and efficient.

If granting a conservatory order is likely to cost the public a lot of money or unfairly benefit one party, the court should not grant it. If, on the other hand, a conservatory order can prevent someone from unfairly taking advantage of the court process, save public funds, or save time and resources, it may be in the public interest. A conservatory order must also be consistent with the values and principles of the Constitution and not inappropriately infringe on the rights and freedoms in the Bill of Rights.

WHY DID HIGH COURT ISSUE THIS ORDER?

These requirements help us better understand why the court issued the conservatory order. When the IEBC certified the signatures, it significantly changed the status of the case: It started a 90-day period during which all of the county assemblies must approve or reject the proposed amendments.

The process by which the counties consider the amendments is one of the issues before the High Court. Those applying for the conservatory order worried that their claims would no longer be relevant, if the counties were to make their decision before the court had a chance to rule on the matter. The applicants also worried that if the process were to continue and then later be held unconstitutional, it would cost Kenyan citizens millions of shillings that could not be recouped.

The court considered these concerns in light of the three requirements. First, it concluded that the claims challenging the amendment and referendum process were not frivolous. While not a high bar, it establishes that, whatever the motivations of the parties, their claims are real and have not been made merely to delay the BBI process.

The court then turned to the next question – whether real and imminent harm would occur if a conservatory order is not granted. The court did not agree that the concerns raised about the county assemblies’ approval process would be meaningless unless the case was halted. Because the county assemblies had yet to consider the amendments, that fear was not imminent. Yet, even if enough county assemblies did approve the bill, the court still had the power to determine whether they did so in a constitutional way. In short, the court said that the matatu was not yet bearing down on us and that, even if it were, the court still could prevent a crash.

The court was also not terribly concerned that allowing the counties to consider the amendments would waste money. It concluded that the cost of considering the amendments was not so high as to justify halting the process. Because the High Court has the authority to hold the approval process unconstitutional even after that process had completed, it did not need to put on the brakes now.

The court addressed a third, final, issue: The cost incurred by the IEBC in preparing for the referendum. The High Court found that the dangers here were real and imminent. Conducting a referendum would cost billions of shillings and, if the amendment process were found to be unconstitutional, those costs would never be recovered. As the court explained, allowing the IEBC to proceed may mean that "the country’s scarce financial resources would have been unnecessarily expended."

POTENTIAL WASTE OF MONEY

It was this concern — the referendum expense that may never be recouped — that drove the court to issue the conservatory order. Because the IEBC was already preparing for the referendum, the threat that billions of the people’s shillings might be wasted was both real and imminent. And because those shillings, once spent, could not be recouped, the harm would be irreparable. Unlike with the county assemblies’ approval process, if the court did not stop the IEBC from preparing for the referendum now, it would be unable to prevent the financial harm later.

The financial concerns also were in line with the public interest and the Constitution. As the court noted, Kenya is far from wealthy, and the public interest favours ensuring that its resources are not wasted. If the IEBC were to spend money on a referendum that might be found unconstitutional, it would risk wasting billions of shillings. It not only jeopardises the public’s money, but also violates the constitutional requirement that public money "be used in a prudent and responsible way".

CONCLUSION

The High Court’s ruling will likely please few. Those opposed to BBI will likely be unhappy that the counties are allowed to consider the amendments. Those in favour will likely be unhappy that the IEBC cannot prepare for a referendum. Courts, however, were not created to make people happy, but to do just what the High Court did here: Closely analyse facts, consider them in light of established rules, and come up with a thorough, reasoned answer.

Deciding whether to issue a conservatory order is not easy, and it is refreshing that the court took the process seriously – something we should demand of all branches of government.

The author is litigation manager at Katiba Institute