Half of newspaper articles touch on constitutional issues
How would it be, I thought, if one looked at one day’s newspapers to see how many items would have a constitutional angle to them, and thought about how useful a constitutional analysis would be. It was Tuesday this week.
It was remarkable. Around half the items in the papers could be looked at through constitutional lenses. Evictions, floods and disasters, education, healthcare, prisoners’ rights, underfunding the SRC, taxing powers of counties, police treatment of journalists and failure to investigate… the list goes on
Here I focus on a few items – which I can respond to in 1,300 words.
Floods and disasters
Who is supposed to do what is reasonable to anticipate disasters and deal with them if they occur? First of all the Constitution says that “disaster management” is a function (or power) of both national and county governments. A county government can act only within its boundaries, so it makes sense that both levels have powers.
Human rights form a framework, according to the Constitution, for policies; and obligations to respect, protect and fulfill rights are binding on all state bodies. So something that looks like a power becomes a duty. The rights – and therefore the state duties – include rights to life, housing, food, water, health and education. Disaster management therefore embraces duties not just powers.
We have known for some time that floods were probable about now because of El Niño (except when the President seemed to think he had a hotline to God and told us it would not happen).
Well, it seems to be happening and people have begun to die, while 10,000 people in Tana River are homeless.
The Constitution does not expect miracles, but failure to take reasonable steps is clearly a violation of the constitutional rights of those affected.
Evictions
This issue has dominated the news for some time, and is depressingly familiar. The very first constitution draft in 2002 said, copying from the South African Constitution: No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.” Sadly, it was deleted at the Bomas National Constitutional Conference. Too many property owners, perhaps.
No Constitution can stop all evictions. But the right to housing, even without this clause, does offer some hope, through the courts, that sometimes there will be an obligation to provide, or help people find, alternative accommodation. Or at least not evict them until they have had the chance to find it.
And there are different ways of evicting people. Coming in the night, in the rain, with bulldozers, just before important examinations, destroying not just houses but their contents is clearly immoral.
Kenyan courts, on the strength of the Constitution, have endorsed the idea that even if they must happen evictions must be humane. They have relied on the UN Basic Principles and Guidelines on Development-based Evictions and Displacement. These include: “Evictions shall not be carried out in a manner that violates the dignity and human rights to and security of those affected.” And, “Evictions must not take place in inclement weather, at night, during festivals or religious holidays, prior to elections, or during or just prior to school examinations.”
You might think these were common sense, but that quality, and respect for fellow citizens seems sadly lacking among those who order and carry out evictions – and other actions that negatively affect people. Even the obvious minimum requirement of reasonable notice of evictions has been missing in some cases.
Investigation or arrest first?
Justice Sifuna said that it was wrong to arrest people, bring them to court and then investigate.
The order ought to be investigate, decide there was a case and then arrest and charge. He was speaking specifically of the Ethics and Anti-Corruption Commission, but his observations apply generally to bodies that may arrest.
This is clearly the process that the Constitution envisages as normal. Investigation is carried out and a suspect identified. They may be arrested (with or without a warrant as the law provides).
They must be told promptly why they have been arrested. Within 24 hours, normally they are to be taken to court. The Constitution does, however, allow that if they are not charged they must be told why they are being held. True, occasionally it may be necessary for a premature arrest to be made – if there are good reasons to believe the person is about to run away, for example.
But generally, how can a person be arrested if the arresting body does not know why? And how can they know why if they have not investigated?
In 2014, the law was changed to allow the police to ask a court to allow them to hold someone while investigations are completed. The maximum is supposed to be 90 days. But for terrorist offences 360 days. This amounts to detention without trial.
It seems that courts have been too ready to grant this extended detention. This really goes against the Constitution’s provision about a right to be released on bail unless there are compelling reasons.
Justice Sifuna’s remarks are very welcome.
Double taxation
Exporters of fresh produce, like avocadoes, complain that they get charged tax more than once – at the national and county levels, sometimes by more than one county. The charge is often called ‘cess’. Local authorities under the old constitution could charge it. But can counties?
The simple answer ought to be “Counties cannot charges cess if it is a tax.” The Constitution allows counties – unless there is a national law allowing it – to charge only property tax (rates) and entertainment tax.
So is it a tax? The normal understanding of a tax is a compulsory payment for the purpose mainly of raising money (there may be a secondary objective, such as making something like tobacco more expensive). If you pay a tax you cannot say, “I have a right to the supply of something in return for my payment.”
A fee or charge is payable in return for something – for goods, service, or a permit to do something.
Counties have argued they are charging people for the use of their roads. This has been accepted in some cases.
But in one case, the Supreme Court had to deal with Mombasa county’s demand for ‘cess’ from traffic destined to the port, specifically for the transport of minerals from Kwale county. The court held that the road over which the traffic passed was not a county road but a national road.
Therefore, the county was providing no service: “A county does not have authority to charge a cess, levy or tax where they do not offer anything in return.”
My suspicion is that claiming it is a charge for the use of roads is an afterthought. I would argue that counties cannot impose a so-called ‘charge’ on all road users even if they did use county roads, if that charge was not at all related to how much each specific motorist actually used county roads. That would be a tax.
And if they did try to charge people who used county roads, but imposed it only on vehicles carrying, for example, minerals or avocadoes, they would have to argue hard to justify charging only certain road users, because that is on the face of it discrimination – and unconstitutional.
Similarly if they charge it on ‘out of county’ road users only, that is discriminatory, and would have to be justified as reasonable.
The whole system is undesirable – it makes it more expensive for goods to be delivered to or from more distant areas, increasing their marginalisation. And it generally hampers free movement of goods around the country – something recognised as desirable in Article 191.
The Constitution does not always produce an immediate answer but does provide ways of thinking and sets standards. It genuinely is, or should be, the framework for governmental action.
