Tale of two cities in administrative law

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BY JARED JUMA

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, it deals with the decision-making of administrative units of government – tribunals, boards or commissions, for example – that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, and disciplinary processes the environment, taxation,  broadcasting,  immigration  and  transport. Administrative law expanded greatly during the 12th Century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.

While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process or fundamental justice. Judicial review of administrative decisions is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency. This difference is vital in appreciating administrative law in common law countries.

Article 165 of the Constitution of Kenya empowers the High Court to hear complaints for violations of the fundamental rights. Under article 22, the Court is also empowered to provide appropriate reliefs and remedies. These can be in terms of issuing declaratory orders, conservatory orders, injunctions and enforcement of specific performance.  That is why are courts are described as temples of justice and the last frontier of the rule of law. This so due to the fact that in cases where a decision of an administrative body goes against somebody, then the aggrieved party can run to the High Court to look at that decision particularly the process followed prior to making it.  Courts have jurisdiction in such areas.

However, the emerging inconsistencies in the manner in which the High court Judges have been handling very closely related are baffling. A review of two cases will be necessary to demonstrate this puzzling inconsistency: In Nairobi High Court Petition number 54 of 2014 Oluoch Dan Owino & 3 others v Kenyatta University, and Nairobi High Court Petition  number 337 OF 2013, Joseph Mbalu Mutava v Attorney General & another.

In the Oluoch Dan Owino case, cause of action arose from a decision by the disciplinary committee of the Kenyatta University, sitting in a quasi judicial capacity.  Dan Oluoch Owino together with other students had been in Kenyatta University main Campus on the 15th day of March 2013. Around that time, there was a serious tension in the country regarding the fate of a closely contested general election which was being held just after a disputed one that had claimed more than a thousand lives and displaced so many others.

They saw a van carrying electoral materials. That was a time when the allegations of rigging and bungling of the electoral process were being passed from place to place in the social media and later challenged at the Supreme Court.  The results are that the students demonstrated against what they considered as complicity by the University with the electoral body in the reported irregularities.  It is proper to observe that the students, just like any other Kenyan of reasonable consciousness, having participated in the election, would be very alert to hear the out come of the polls. It was naïve of the University or anyone to think that they would have been indifferent to such a discovery in the institution.

Therefore when the University later suspended them on account of their alleged participation in demonstrations as against the perceived undemocratic relationship between the Kenyatta University and Independent Electoral and Boundaries Commission, they sought remedies in the high court. However, Justice Mumbi Ngugi who heard their case used a very conservative method of denying them the reliefs.

The Students had picked an issue with the discriminatory manner in which the University only isolated students from the Luo ethnic group, took them through a disciplinary process, and punished them. Justice Ngugi held that there was no evidence showing that the criteria relied upon was tribal or discriminating along lines of ethnic groupings, or political party affiliation, for being supporters of Cord. This was in spite of the fact that the bundles of records exhibited by the students showed a total of 19 students as having faced disciplinary proceedings, all of them coming from the Luo ethnic group, a fact betrayed by their names and their nearest towns of mailing addresses. That was an interesting finding by the judge.

That aside, the matter could have been more persuasive had the judge considered the specific circumstances that had triggered the students’ unrest.  It was election time, the students had participated in the polls and, unexplained election materials were found in campus.  That was sufficient ground to act with a lot of caution in the matter. In many jurisdictions, courts have embraced the hard look theory in judicial review so as to consider how best to exercise jurisdiction.

Let’s consider the findings of Justice JB Ojwang’ as he held while sitting in the High Court in Suyianka & 4 others v Kenyatta University & 2 others [2005] eKLR, university students who had been suspended for their participation in peaceful demonstration in condemnation to the ethnic cleansing that was taking place in Laikipia District. They moved to high court for reliefs way after serving their suspension terms, resumed studies and graduated. The University opposed their application for reliefs on numerous grounds.

In the replying affidavit sworn by the Kenyatta University on that occasion, the Deputy vice Chancellor had averred that the University was a stranger to the violence in parts of what used to be known as the Rift Valley Province. But Justice Ojwang faulted this averment by the University, stating thus:  “The defendants profess ignorance of the broader environment of public consciousness which, in the early part of 1998, led to public demonstrations in which Kenyatta University students also participated.” Justice Ojwang rejected this reasoning and went ahead to give remedies to the students. That was a case where a judge had taken a hard look approach.

Still in the same case, another important observation can be made.  Justice Ojwang had long appreciated the fast pace at which the society was changing. Rather than restrict himself to administrative procedure review, he had recognised the need to give constitutional interpretation a broad and purposive approach. He relied on the statements of MV Peaslee in Constitutions of the World and held as follows:
“Society is not static. It keeps on changing. Interpretation of the constitution must keep pace with changing societal circumstances to give meaning to what is intended. Even if it be at the risk of appearing intransigent ‘sentinels’ of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional rights.”

This is strikingly different from the way Justice Ngugi, (though not employing the hard look test restricted herself to the old judicial Review test of procedure review.  She quoted the decision of the Court of Appeal in Isaack Osman Sheikh -vs- IEBC & Others- Civil Appeal No. 180 of 2013- where the Court of appealed ruled as follows:
“A judicial review of administrative, judicial and quasi judicial action and decisions of inferior bodies and tribunals by the High Court in exercise of its supervisory jurisdiction flowing from Article 165(6) of the Constitution is not in the nature of an appeal. It concerns itself with process and is not a merit review of the decision of those other bodies. And it does not confer on the High Court a power to arrogate to itself the decision-making power reserved elsewhere.”

In taking this route, she was thus going to take the narrow path of process review. It would be fair to observe that the final orders given by the court were that the disciplinary committee was improperly constituted and as such, she ordered that the students be tried again.  This was now akin to giving the University a fresh and clean template to organise a fresh trial and pass whatever verdict it had wished on the students.

As earlier observed, a judicial body must stick to its disciplinary process and if it disregards them then courts can interfere. The students had approached the court so as to quash the suspension sentences passed upon them. It was within the court’s jurisdiction to issue an order of certiorari and quash the said decisions if it was evident that the disciplinary committees were wrongly constituted.

Kenyatta University has over the years conducted disciplinary hearings on students and it cannot be possible to say that they can make an innocent mistake on committee composition.  A problem with composition a membership if done wrongly can only show bad faith. In such circumstances, a court need not tolerate them by giving them a second chance.  Justice Ngugi ordered the University to conduct fresh appeals on the students.
It was not even her consideration that by the time when she delivered her judgment, some of the students had already served their full terms of suspensions. An order to hear their appeal again even had the option of exposing them to further and harsher sanctions from the university.

This is the point when I question why the Judge could not order the University to first re-admit the students. My question is based on the closely related case that she also heard, together with two other judges. It was a case of suspension of Hon Justice Joseph Mbalu Mutava by the Judicial Service commission. Justice Mutava had been suspended as a judge following numerous complaints lodged against him, particularly in the manner of handling the cases involving businessman Kamlesh Pattni.  The three-judge bench that heard his case held that the hearings had gone against him and as such ordered that the suspension be set aside so that he could go on working as a judge even as the JSC sets up a proper process to hear him.

The two cases of Oluoch Dan Okello and Joseph Mbalu Mutava v Attorney General & another [2014] were very closely related. How the two high court benches arrived at different findings is hard to fathom. Add to the fact that one of the judges sat in both cases then one is tempted to imagine that the independence of the courts at some point, was a farce.

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