“We must make up our minds to look for our protection not to legal terrors but to careful administration of justice” – Thucydides
Government has always been the subject of intense discussion, and this has resulted to a new wake, full of concrete proposals for reform in the legal and institutional framework undergirding the rule of law, the justice system, the Executive, the Legislature, the criminal justice system and the bar. Some of these reform measures have resulted in positive changes in the entrenchment of the rule of law in Kenya.
The Constitution of Kenya 2010 included within its Bill of Rights a new provision on “fair administrative action” provided for under Article 47, which states thus: “every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”. It requires, inter-alia, legislation to be enacted within four years that would give force to this right, in particular by allowing for review of all administrative action by a court or tribunal. Applying to all public officials and agencies, this article establishes principles and procedures for checking government power to ensure that public authorities do not abuse the powers granted to them by the Constitution and Acts of Parliament.
Chapter Six of the Constitution of Kenya 2010 on Leadership and Integrity defines the responsibilities of State officers; their authority is described as a public trust, which must be exercised consistently with the purposes and objects of the Constitution; demonstrate respect for the people; bring honour to the nation and dignity to the office; and promote public confidence in the integrity of the office—and above all to “serve the people, rather than the power to rule them” (Article 73). Article 47(3) further enjoins Parliament to enact legislation to give effect to the rights in clause (1) and that legislation shall—provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and promote efficient administration. The rights under clause (1) are: “the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”.
In light of administering fair justice, the Constitution of Kenya 2010 has granted Kenyans an opportunity to make a new start in enshrining respect to the rule of law. Further, with respect to the justice sector, key reforms contained in the Constitution include the specification of leadership and integrity requirements for public officers, which can be used to stem impunity and disregard for the law by the Executive, Legislature and Judiciary.
Secondly is the right to fair administrative action to enable citizens participate in and hold to account decision-making processes by government and public officers.
However, for these important constitutional principles to translate into a concrete realisation of the rule of law ideal, the government needs to pass enabling legislation and put in place adequate administrative mechanisms to address a number of issues and align them to the new constitutional dispensation.
The 11th Parliament has circumvented the prescriptions of law by finding them to be a hindrance to the attainment of their myopic political interests. The result has been a self-destructive culture of impunity and lawlessness, as the law has ceased to be authoritative; in its place, political shenanigans have taken over. No one, I believe, has greater respect for the independence of the legislative power than I do, but legislation does not mean criticism of the administration or an unfair outlook of what fair administration of justice is. The legislature should legislate, that is, construct grand laws purely based on principles of jurisprudence, and with consideration for public interest.
Plague of impunity
Under the National emblem of “Justice be our shield and defender”, Parliament has steered itself contrary to that emblem by framing Section 13 of the Fair Administration of Justice Bill, 2015, in a manner that amounts to a plague of impunity. It states: “No person shall liable in criminal or civil proceedings for anything done in good faith in the exercise or performance of any power or duty under this Act.”
It is trite law that strict liability exists when a defendant is in legal jeopardy by virtue of a wrongful act, without any accompanying intent or mental state. This is analogous to the doctrine of “res ipsa loquitur”, in which control and damages are sufficient enough to hold the owner liable even without proof of specific negligent acts or omissions.
Parliament in particular cannot escape the duty of deciding whether legislation is consistent with the Constitution when a bill is before them. What matters most is the standard to be followed in its interpretation in line with the Constitution. Rather than seeking to draft a wrong Bill, Parliament must know that a correctly passed bill is that which rests on reasons with respect to the Constitution, reasons that in their generality and their neutrality transcend to a result that is trite in law. Parliament must understand that every improvement in our conceptions of justice, as well as in the machinery for the administration of justice, leading to a closer approximation to exact justice may be secured, will make for social peace and that a mere adjudication of conflicting interests will not remove the conflicts themselves nor their cause.
Lord Mansfield, in Rex v. Phillips (1758), 1 Burr. Part IV 304 stated that the way to do complete justice, indeed, is to let in the one side without prejudicing the other. What Parliament is attempting to achieve is to grant immunity to state officers, local legislators and those executives acting in a quasi-judicial function from personal liability for injuries caused by their acts. The immunity under Clause 13 also extends to cover criminal liability. This type of immunity applies even if the plaintiff can prove that the defendant acted with bad faith. This therefore raises the question of what line distinguishes acts committed by a legislator as either done in good faith or not. Some may use this as a defence for their unwarranted actions. This, in real sense, amounts to giving impunity a cosmetic uplift and a carte blanche to state officers to abuse their authority without any accountability.
The immunity which Clause 13 of the Fair Administration of Justice Bill deals with is not only civil liability. The Clause also provides immunity to state officers for criminal liability, something which is unheard of in relation to immunity for the exercise of official duties, mainly due to the nature and origin of criminal liability. It is well known that immunity applicable to State and public officers for acts done in the exercise of their official duty usually extends to immunity from civil liability, for those acts which are done in good faith. The immunity is a means of encouraging State and public officers to perform their duties without hindrance or fear of being sued as a result of the performance of their duties.
As a rule of thumb, this immunity does not extend to criminal liability. Criminal liability arises where a State or public officer engages in conduct or does an act, in the performance of their duties, which act is contrary to the criminal law, and as such attracts criminal liability. The extension of immunity from criminal liability for State and public officers in the Fair Administration of Justice Bill, 2015, appears to be aimed at shielding State and public officers form criminal prosecutions even in cases where they have acted in clear breach of the Penal Code.
Contravening criminal law while acting in good faith is not a known defence to any criminal charge. A criminal charge is successfully brought upon establishing the dual conditions of “mens rea” – having a guilty mind – and “actus reus” which is the actual commission of the offence. Where the guilty mind exists, it is not plausible to excuse some, more so a State or public officer, from an offence by mere reason of good faith.
Article 93 of the Constitution of Kenya 2010 states: “Parliament shall protect the Constitution and promote the democratic governance of the Republic”. It is my firm belief that the democratic governance of the Republic is promoted by a good procedure of administration and accountability by all public officers, and, that the key pointer should be based on the best interest of the citizens, upon whom Article 1(1) of the Constitution places sovereignty. Further, Article 129 (1) says that “authority is derived from the people of Kenya and shall be exercised in accordance with this Constitution”.
With this bill, one might understand that even though it is the people who have the authority, public officers will enjoy immunity over wrongful actions even if these actions are of public interest. Thus, in my understanding, the authority of the citizens is merely ceremonial. The Constitution goes further and states in Article 232 that all Public servants must be held accountable for their administrative actions, which accountability Section 13 of the Bill is bent on avoiding. The Administration of Justice Bill, 2015, sugar-coats impunity by further stating that these public servants shall not be held accountable for the actions done in “good faith”.
Good faith by bad faith?
Good faith connotes a sincere intention to deal fairly with others; it is an abstract and comprehensive term that encompasses a sincere belief or motive without any malice or the desire to injure others usually expressed as “bona fides” in legal parlance. What good faith is there in the Bill when a public officer does a wrongful act and chants that it was done in good faith? What accountability is there if one hides one’s actions under the cloud of “good faith”? For fair administration of Justice, the majority leader of the National Assembly, by putting forward this Bill, ought to have understood that in law, we are all equal whether our actions are done in good faith or not, and that the Constitution follows a code of strict liability. If the Fair Administration of Justice Bill, 2015, is to do justice then, no public officer is to hide his actions on the amorphous notion of “they were done in good faith”. They should know better than hide impunity under the good faith cloud.
The Constitution of Kenya 2010 has been called “radical” or “transformative”. It seeks to change the previous political and social system from one that dominates (and indeed oppresses) the people, to one in which sovereignty truly lies with the people, and the welfare of the people and the protection of their rights and freedoms is the basic or fundamental duty of the State.
The Constitution thus does not merely establish State institutions and their powers and functions, but sets out the purposes and objectives for which the powers and functions are designed to be exercised. The most well known of these provisions is Article 10, which specifies a number of national values and principles which bind all State institutions, as they do in non-state sector. All these values are pertinent to the conduct of state organs, but of particular relevance are national unity, rule of law, democracy and participation of the people, good governance, integrity, transparency and accountability.
Laws that contain the principles that will govern the liability of the State for acts committed by its agencies should be just in its substance, reasonably certain in form and fairly predictable in their working. In any modern society, interactions between the members of parliament and the citizens are large in their number, frequent in their periodicity and important from the point of view of their effect on the lives and fortunes of citizens. Such interactions often raise legal problems, whose solution requires an application of various provisions and doctrines.
A large number of the problems so arising fall within the area of the law of torts. This is because, where relief through a civil court is desired, the law of torts figures much more frequently, than any other branch of law. By definition, a tort is a civil wrong, (not being a breach of contract or a breach of trust or other wrong) for which the remedy is unliquidated damages. It thus encompasses all wrongs for which a legal remedy is considered appropriate. It is the vast reservoir from which jurisprudence can still draw its nourishing streams.
Given this importance of tort law, and given the vast role that the current Parliament performs in modern times, one would reasonably expect that the legal principles relating to an important area of tort law, namely, liability of Parliament in tort would be easily ascertainable. However, at present, this ideal will not be achieved if our legislators pass the Bill in its current form without amending the clause that makes them neither accountable in civil nor criminal when their actions were done is supposed good faith. In reality, it is for this reason that Parliament needs to consider amending the Bill on their liability.
Clause 13 serves no practical purpose in light of the provisions of Public Officer Ethics Act, Cap 183, which provides for a guideline on the conduct of all Public workers during the exercise of their duties. Obedience to the law is not optional, rather, it is mandatory and a person does not choose whether to obey a law or not. For as Theodore Roosevelt, the 26th President of the United States of America, once said, “No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’.
A fair administration of Justice is regarded as a glorious and a communicative virtue, ordained for the common good of mankind, without any regard to itself. This it is, that which preserves tranquillity in the world. It is the bond of human society and it is of the greatest importance that the administration of justice should not only be free from spot or blame, but that it should be, so far as human infirmity could allow it to become, as free from all suspicion.
Clause 13 of the Fair Administration of Justice Bill, 2015, amounts to severe abdication of the sacrosanct duty bestowed on us by the Constitution. The dignity, and authority of administering fair justice must be protected, and that is why those who flagrantly disobey the law must be punished, lest they lead us all to a state of anarchy.^
Writer is an intern at Ahmednasir, Abdikadir & Co Advocates;