By NLM Writer
Article 117 of the Constitution of Kenya 2010 and Section 12 of the Parliamentary Powers and Privileges Act no 29 of 2017 suppose that neither the Speaker nor any officer of the Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on, or vested in the Speaker or such officer by, or under the Act or the Standing Orders, and that no civil suit shall be commenced against the Speaker, the leader of the Majority party, the leader of Minority party, chairpersons of committees and members for any act done or ordered by them in the discharge of the functions of their office. They also suppose that the Clerk or other members of staff shall not be liable to be sued in a civil court or joined in any civil proceedings for an act done or ordered by them in the discharge of their functions relating to proceedings of either House or committee of Parliament.
This position was echoed by the Supreme Court at Paragraph 68 and 69 in ‘Justus Kariuki Mate & another v Martin Nyaga Wambora & another’  eKLR. The question therefore becomes, in spite of the foregoing, can members of a legislative assembly appear as respondents for actions carried out in their legislative capacity?
There is a school of thought that supposes that the provisions of Article 117 and Section 12 are in black and white and therefore, suits against such members are bad in law. There is an alternative thought, to the effect that by dint of Article 47 of the Constitution and Sections 3 and 4 of the Fair Administration Act No 4 of 2015, which contemplate the horizontal and vertical application of rights, such officers have a duty and can indeed properly appear as respondents.
Let’s explore this alternative view.
The manner of proper interpretation and application of the Constitution has long been settled. Its trite principle that the Constitution ought to be interpreted liberally, purposively and holistically – without any article destroying another, and in a manner that enhances the application of rights. Furthermore, all laws on a particular issue ought to be read together and not in isolation to each other. To this effect, fewer pronouncements have been as eloquent as that of Court of Appeal of Tanzania in ‘Ndyanabo vs Attorney General’  2 EA 485, and the Uganda Court of Appeal sitting as a Constitutional Court in ‘Kigula and others vs Attorney General’  1 EA 132. In Kigula, the Court held as follows:
It is now widely regarded that the principles which govern the construction of statutes also apply to the construction of constitutional provisions, and that the widest construction possible in its context should be given according to the ordinary meaning of the words used; 2) that the entire constitution has to be read as an integrated whole and no particular provision destroying another but each sustaining the other; 3) that all provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument; 4) that a constitution and in particular, that part which protects and entrenches fundamental rights and freedoms are to be given a generous and a purposive interpretation to realize the full benefits of the rights guaranteed; And that in determining constitutionality both purpose and effect are relevant.
Right to fair administrative action
As a right under Article 47 of the Constitution, the right to fair administrative action attracts a corresponding duty and therefore a duty bearer. The duty bearers are those cited under Section 3 (1) of the Fair Administration Act, being all state and non-state application agencies and any person exercising administrative authority; performing a judicial or quasi-judicial function under the Constitution or any written law or whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.
While executing their administrative mandate under Article 47 (1) of the Constitution and Section 4 of the Act, these persons are called upon to discharge their administrative mandate expeditiously, efficiently, lawfully, reasonably and in a manner that is procedurally fair. The right to fair administrative action is therefore a justiciable right that can be enforced both horizontally and vertically and any law that proposes the contrary ought to be adjudged unconstitutional.
The Court of Appeal shed more light on this issue with its decision in ‘Judicial Service Commission vs Mbalu Mutava and Another’ (2015) e KLR CA 52/2014. Inter alia, it held:
Article 47 (1) marks and important and transformative development of administrative justice, for it not only lays a constitutional foundation for control of the powers of the State organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The Right to fair administrative action is a reflection of some of the national values in article 10 of the Constitution such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The Administrative actions of Public Officers, State Organs and other administrative bodies are now subjected by article 47(1) to the principle of Constitutionality rather the doctrine of ultra vires from which administrative law under common law was developed.
In responding to whether members of the Legislature can appear as respondents, it is important that commentators consider the following: the intention behind Article 2 of the Constitution; the purpose of Article 47 of the Constitution and indeed the Fair Administration Act; the import of article 117 of the Constitution; the purpose and intention of the Parliamentary Powers and Privileges Act no 29 of 2017 and Section 12 thereof and; an interpretation that reconciles these provisions as best guarantees the right to fair administrative action.
Can courts interfere in legislation processes?
As mentioned, the intention of the drafters can be found by considering a specific body of law holistically. The Supreme Court of Kenya settled the issue of purpose and intent in ‘Speaker of the Senate & Another v. Attorney General & 4 Others’ No. 2 of  eKLR, in the following manner under Paragraphs 49 and 55:
Upon considering certain discrepancies in the cases cited, as regards the respective claims to legitimacy by the judicial power and the legislative policy – each of these claims harping on the separation-of-powers concept – we came to the conclusion that it is a debate with no answer; and this Court, in addressing actual disputes of urgency, must begin from the terms and intent of the Constitution. Our perception of the separation-of-powers concept must take into account the context, design and purpose of the Constitution; the values and principles enshrined in the Constitution; the vision and ideals reflected in the Constitution… It is clear to us that it would be illogical to contend that as the Standing Orders are recognized by the Constitution, this Court, which has the mandate to authoritatively interpret the Constitution itself, is precluded from considering their constitutionality merely because the Standing Orders are an element in the ‘internal procedures’ of Parliament. We would state, as a legal and constitutional principle, that Courts have the competence to pronounce on the compliance of a legislative body, with the processes prescribed for the passing of legislation.
Further, at Paragraph 61:
It emerges that Kenya’s legislative bodies bear an obligation to discharge their mandate in accordance with the terms of the Constitution, and they cannot plead any internal rule or indeed, any statutory scheme, as a reprieve from that obligation. This Court recognises the fact that the Constitution vests the legislative authority of the Republic in Parliament. Such authority is derived from the people. This position is embodied in Article 94(1) thereof. The said Article also imposes upon Parliament the duty to protect the Constitution and to promote the democratic governance of the Republic. Article 93(2) provides that the National Assembly and the Senate shall perform their respective functions in accordance with the Constitution. It is therefore clear that while the legislative authority lies with Parliament, the same is to be exercised subject to the dictates of the Constitution. While Parliament is within its general legislative mandate to establish procedures of how it conducts its business, it has always to abide by the prescriptions of the Constitution. It cannot operate besides or outside the four corners of the Constitution.
At paragraph 62:
Parliament must operate under the Constitution which is the supreme law of the land. Where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. Where however, as in this case, one of the Houses is alleging that the other has violated the Constitution, and moves the Court to make a determination by way of an Advisory Opinion, it would be remiss of the Court to look the other way.
While there may be some context as to whether the actions of members of a legislative assembly fall within the definition of an administrative body, it is also quite clear that where applying themselves to an issue of rights, these members are duty bearers within the definition of Section 2 (ii) of the Fair Administration Action Act and therefore capable of appearing as respondents.