By Walter Khobe ochieng
Kenyans chose to depart from a past of authoritarian rule and unjust societal set up by enacting a new constitution in 2010. The post-2010 dispensation is founded on a bold normative constitutional document that not only aims at regulating and disciplining the distribution of power, the ushering in of a new era of democratic governance and representation, and the definition of human rights, but which also aspires to establish a new political and moral foundation for the Kenyan society.
The Constitution vests in Kenyan courts the challenge of implementing these ambitious and transformative constitutional promises. This role is manifested in the following roles: First, the courts have the power to make final binding judgments over constitutional and other legal issues. Second, the courts are empowered to constrain the legislative and executive branches when these branches threaten through their action or inaction the rights, values, and principles protected by the Constitution. These roles follow the trust in the reformative power of law that has been at the forefront of the post-war liberal consensus.
With the adoption of the 2010 Constitution, it was clear that there needed to be significant changes to the judiciary and its make-up to render it fit for a new constitutional dispensation. The constitution thus included an overarching objective to transform the judiciary. Even though much of the judicial system remained as it was prior to the adoption of the Constitution, a critical shift happened through the vetting of judges and magistrates who were serving in the judiciary before 2010. Also significant was the creation of three new courts i.e. the Supreme Court as the apex court in the land, and two specialist courts, the Environment and Land Court, and the Employment and Labour Relations Court, as courts with the same status as the High Court.
Post-2010, the task of improving access to justice for all has been a critical priority, with the main objectives being to bring the justice structures and systems in line with the Constitution, to establish trust in and respect for the law and the justice institutions, and to restore the legitimacy of the judiciary in the eyes of the people. In the last nine years, various initiatives have led to the transformation of the justice system to expand access to justice to a majority of the population that had previously been excluded. Focus areas have included attempts to ensure that rural communities in marginalised areas have greater access to justice. This enormous task has yielded many promising results with the establishment of court stations in previously unreached counties like Turkana, West Pokot, Bomet, Tana River, Garissa, Narok, Voi, among others, although there is yet some way to go. This has led to easier access and speedier responses to local justice related issues.
Also noteworthy is that significant progress is being made to improve the civil justice system. In this regard, Court-Mandated Mediation processes have been activated. This is an initiative meant to introduce into the legal system a dispensation through which disputes can be resolved by mediation within a court supervised process.
The 5 Superior Courts i.e. the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, and the Employment and Labour Relations Court are at the centre of the need to give effect to this post-2010 paradigm. This commentary assesses whether these courts have lived up to the ideals of developing a jurisprudence that adheres to the promise of the Kenya’s transformative constitution and whether they have been efficient in terms of the hearing and determination of disputes.
Given the distrust of the old judicial order, the idea of superimposing a Supreme Court as the final interpreter of a new constitution gained early acceptance among participants in the debates around transformation of the judiciary. The Supreme Court was established as the highest court and an independent guardian of the Constitution to ensure its legitimacy, interpret, and enforce its provisions, and guarantee legally protected fundamental human rights to everyone in Kenya.
The 2010 Constitution is an extremely detailed document containing a comprehensive catalogue of citizen’s rights as well as a clear map of government structures and duties. As far as interpretation is concerned, there are both explicit interpretative guidelines in the Bill of Rights (article 20(3) and (4) of the Constitution) as well as more general legal and interpretative principles laid out in articles 10, 159, and 259 of the Constitution. The Supreme Court is expected to show fidelity to this textually decreed interpretive guide in adjudication of disputes.
While the Supreme Court has rendered some countable landmark transformative judgments, examples being Raila Odinga (2017) Election Petition Judgment, The Speaker of the Senate (2013) Advisory Opinion on the process of Division of Revenue between the national and county governments, and the Francis Karioko Muruatetu (2017) judgment on the constitutionality of mandatory death penalty, the court is largely considered to have failed in discharging its function as the ultimate guardian of the Constitution.
Noteworthy is the fact that most members of the legal community, i.e. judges from other courts, legal scholars, and members of the bar all point to several decisions where there is a consensus that the Supreme Court’s decisions did not live up to the ideals embodied in the constitution and lacked intellectual heft. Frequently cited is the Martha Karua (2019) Election Petition with respect to the Kirinyaga County Governor elections, the Mohamed Abdi Mahamud (2019) Election Petition with respect to the Wajir County Governor elections, and the Cyprian Awiti (2019) Election Petition with respect to the Homa Bay County Governor Elections.
The formalist approach to constitutional interpretation in Martha Karua and Mohamed Abdi Mahamud election petitions has raised concern that the inherent positivism of Kenyan judges may restrict, or serve as a drag on, the interpretative project of the Constitution that is so central to the realization of the transformative potential of the Constitution. In the Karua case, the court used formalistic reasoning to deny the petitioner a right to access justice despite finding that the petitioner was not to blame for failure by the courts to adjudicate her case within the stipulated timelines. This decision has evoked memories of the injustice caused by the formalist reasoning in the infamous cases of Matiba v Moi, and Kibaki v Moi.
In the Mohamed Abdi Mahamud case, the court allowed a sitting governor to go through the electoral process without ascertaining whether he met the legal threshold for eligibility for the position of a County Governor. A second problem with the judgment in the Wajir Governor Petition is that the High Court’s finding that electoral laws were violated in the elections remains undisturbed to date yet despite this the Governor continues to sit in the office through formalistic reasoning by the Supreme Court allowing this absurd position. Lastly, the Supreme Court purported to allow the Governor to introduce new evidence during a second appeal yet the appellate courts are barred from delving into factual disputes in electoral causes.
Similarly, in the Cyprian Awiti Case (2019), the Supreme Court inexplicably overturned a series of its settled jurisprudence and the consistent jurisprudence from the Court of Appeal and the High Court with respect to the role of election courts vis a vis deputy registrars in scrutiny of election materials. It has long been settled that the elections court is the decision making forum in election causes and the court has to interrogate the scrutiny report prepared by a Deputy Registrar who serves as a delegate/agent of the court in the scrutiny of election materials during hearing of election causes. Without any serious jurisprudential foundation, the Supreme Court overturned this consistent jurisprudence, including from earlier decisions by the Supreme Court itself.
In the area fundamental rights adjudication, 2019 was a catastrophic year for the Supreme Court. In the Mohamed Fugicha (2019) judgment the Court used formalistic reasoning to avoid adjudicating the dispute on merits and offer the nation jurisprudential leadership with respect to the question of diversity/ multiculturalism/ pluralism ethos of the Bill of Rights. This was with respect to the wearing of Hijabs by Muslim girls in schools. Similarly, in Hussein Khalid (2019) the Supreme Court failed to affirm the transformative power of the Bill of Rights in the question of the intersection of the freedom of assembly and due process in criminal justice. The court through its decision insulated criminal law from constitutional scrutiny. This retrogressive stance by the Supreme Court compares unfavourably when compared with the recent landmark transformative judgments by the Constitutional Court of Zimbabwe in Democratic Assembly for Restoration and Empowerment (2018) and the Constitutional Court of South Africa in Mlungwana (2018) on the same question of the intersection criminal procedure and the freedom of assembly.
The Supreme Court’s success in protecting constitutional goals should be measured by its jurisprudential record – its performance according to legal professional standards of appropriate decision-making. In the Kenyan context, judges need to demonstrate that they are not on the side of the rejected status quo. Rather, their role is to support democratic social change, wherever that might lead. It can be concluded that the Supreme Court has to a large extent failed on this score.
The point being made is that it is expected that the Supreme Court’s jurisprudence should be firmly anchored in the “never again” call sounded in the 2010 Constitution, underpinned in turn by three fundamental propositions: i) the Constitution is the ultimate law of the land that ii) disciplines the fleeting majorities through the regime of constitutional rights and independent institutions. Last but not least, iii) every political power is a constrained power by courts. The Supreme Court has failed to faithfully serve this role. Its record pales in comparison to that of other internationally acclaimed apex courts established in post-authoritarian democracies as custodians of new constitutions. I have in mind the post-1994 Constitutional Court of South Africa, the post-1989 Constitutional Court of Benin, post-1991 Constitutional Court of Colombia, and the post-1989 Constitutional Court of Hungary.
With respect to the question of institutional efficiency, the Court was hampered for much of the year due to quorum deficit given that some judges of the court were engaged in disciplinary and removal processes. Furthermore, due to the fact that two judges of the Supreme Court sit on the Judicial Service Commission (JSC) they spent much time at the JSC engaged in disciplinary and recruitment hearings. A suggestion for resolving the quorum deficit at the Supreme Court is the need for constitutional amendments to retain only the Chief Justice as the representative of the Supreme Court in the JSC and replace the judge representing the Supreme Court with the Director of Public Prosecutions (DPP).
An objective assessment of the Supreme Court’s performance in the year 2019 returns the following verdict: an E on jurisprudential performance and D for efficiency.
The Supreme Court’s success in protecting constitutional goals should be measured by its record in jurisprudence – The Court has, to a large extent, failed on this score.
Court of Appeal
Primarily appellate courts are courts of review of the decisions of lower courts, and may be intermediate courts or courts of last resort with the power of review only on points of law or circumscribed questions of fact. The Court of Appeal in Kenya is thus the court of last resort in most questions except for the questions of constitutional interpretation and application, and issues of general public importance where the Constitution vests the Supreme Court with an appellate jurisdiction.
The Court of Appeal in both the 2013 and the 2017 Elections Disputes Resolution cycle was the vanguard of transformative electoral jurisprudence. Its decisions in electoral matters have been argued by commentators to be the closest to mirroring the Constitution’s intention with regards to the right to vote and the right to free and fair elections.
The Court of Appeal’s Achilles Heels in the post-2010 dispensation has been in the area of constitutional and Bill of Rights adjudication. Its decisions in Joseph Njuguna Mwaura (2013) where a 5 judge bench showed that they did not understand the requirements of the 2010 Constitution on constitutional interpretation, and did not know how to undertake article 24 limitation analysis; the Mumo Matemu (2013) judgment that sounded the death knell to the promise of enforcement of the leadership and integrity provisions of the Constitution; and the Mitu-Bell Welfare Society (2016) case which evinced traditional ingrained scepticism about the possibility of judicially enforcing socio-economic rights, contributed to this reputation of the Court of Appeal as the anti-constitutionalism court.
However, despite this initial reluctance to enforce the Constitution and further its transformative promise, the Court of Appeal made a remarkable about turn in the year 2019. The Court of Appeal rendered several remarkable judgments in decisions on constitutional and Bill of Rights disputes. In Eric Gitari 1 (2019) appeal the Court affirmed Kenyans’ freedom of association and centrality of human dignity in our constitutional order; in Law Society of Kenya (2019) appeal the Court rendered a landmark judgment on the place of public participation in our governance set up; in Commission on Administrative Justice (2019) appeal the Court rendered a transformative judgment on the binding nature of the Ombudsman’s remedial actions; and in CKC & CC (Suing through their mother and next friend JWN) (2019) appeal the Court rendered a landmark judgment on limitation on rights analysis under article 24 of the Constitution.
Inevitably any discussion on appellate courts involves the applicability of the doctrine of precedent which in one sense depends on the hierarchy of courts, and in another on whether an appellate court is bound by its own decisions known as “stare decisis.” The hierarchy of courts dictates that the decisions of higher courts are binding on courts of lower jurisdiction, for example, decisions of the Supreme Court, Court of Appeal and High Courts bind the magistrates.
An appellate court such as the Court of Appeal may also be bound by its own decisions. An assessment of the role of appellate courts in the jurisdictional hierarchy of any court system indicates that even though they are mainly courts of review of decisions of lower courts, in discharging this mandate one of the main objectives is ensuring stability in and conformity with the law even though not always resolutely adhering to consistency in their decisions.
It is noteworthy that the Court of Appeal has not adhered to the doctrine of stare decisis in some instances thus leaving the state of the law in a flux. In Darasa Investments Ltd (2018) the Court failed to follow its decision in Suchan Investment Ltd (2016) on the new terrain of judicial review of administrative action heralded by article 47 of the Constitution. The Court has also left the state of the law on the question of failure to obtain consent of the land control board for a controlled transaction in land in a state of flux. At the moment we have three contradictory judgments by the Court of Appeal, being Macharia Mwangi Maina (2014), David Sironga ole Tukai (2014), and Willy Kimutai Kitilit (2018), on this question.
The cases discussed on constitutional and Bill of Rights interpretation demonstrate that the Court of Appeal has in the year 2019 played the role of becoming a court which is able to exercise checks and balances over the other two branches of government. Although the rationalisation process has not been completed, the most crucial elements of an independent court within a democratic dispensation are functioning effectively.
In terms of efficiency in the performance of its duties, the Court of Appeal was hampered in terms of the number of judges available for deployment for much of the year. New appointments are expected to fill the shortfall experienced during the year. In instances where the court sat, the judges were punctual and delivered judgments promptly.
In sum, my assessment returns the verdict that in terms of jurisprudential performance for the year 2019 the Court of Appeal scores a B grade.
The Court of Appeal has failed to adhere to the doctrine of stare decisis in some instances thus leaving the state of the law in a flux.
The High Court
The Constitution vests on the High Court a unique role, it is the court vested with the original jurisdiction to provide oversight over the Constitution and the Bill of Rights. This means that the High Court is designed to serve two functions. First and foremost, the High Court is to forestall any incipient return to Kenya’s autocratic past. Second, the High Court is meant to serve as the handmaiden of a new democratic organisation of political power.
In the first 8 years of the post-2010 constitutional order, the High Court produced a series of landmark decisions providing a bold and innovative vision of the rights and democratic form of governance guaranteed by the Constitution. However, 2019 marked a dark turn in this vanguard role that the High Court had played in the constitutional transition. It is the year when the Constitutional and Human Rights, and the Judicial Review Divisions of the High Court dropped the ball. In a number of decisions these two divisions failed to enforce and uphold the promises of the Constitution.
The Bill of Rights is often heralded as the crowning achievement of the Kenyan democratic transition and is thus expected to produce some of the most progressive judicial decision-making in the world. However, this was not to be when a 3 judge bench of the High Court subverted the Bill of Rights, particularly the rights to human dignity, equality, and the freedom and security of the person in the Eric Gitari 2 case (2019). This contrasts sharply with the deployment of intellectual firepower by the High Court of Botswana when adjudicating a similar question on the rights of sexual minorities in the case of Letsweletse Motshidiemang (2019).
Similarly, in Ngunjiri Wambugu (2019) case the High Court subverted the freedom of assembly and right to picket and demonstrate enshrined in the Bill of Rights. In the process, the High Court also subverted the principle of separation of powers by purporting to recommend and prescribe to the legislature how to regulate picketing and demonstrations in the country. In Secretary Board Of Management St. Jg Secondary School (2019) the High Court sitting in Busia subverted the ethos of diversity/ multiculturalism/ pluralism embodied in the Bill of Rights and decreed that the students should abandon their religious faith in order to enjoy their right to education.
In Simon Mbugua (2019) by a Majority, a bench of the High Court failed to follow the cannon of constitutional interpretation prescribed in the Constitution and adopted the discredited literal approach to interpretation to allow the statue of Jomo Kenyatta to appear on the new currencies. In a remarkable dissenting opinion, Justice Mrima showed fidelity to the Constitution by adopting a purposive approach to constitutional interpretation and held that Kenyans intended that no identifiable image of anyone should appear on the Kenyan currency. Also troubling were the decisions by the High Court frustrating other institutions from carrying out their constitutional mandate. In this category falls the Africa Spirits Ltd (2019) revision decision by the High Court barring the Directorate of Criminal Investigations from investigating tax related crimes. This decision is contrary to the constitutional and statutory mandate of the police in fighting crimes.
It is thus evident that in 2019 the High Court abandoned the role that it previously played as ‘the guardian of civil liberties’ in the face of an increasingly authoritarian government. It further failed to keep the executive within the bounds of the law. It failed to heed one of the post-1945 (post-war) paradigms according to which “politics must adapt to laws, not the law to politics” – “Politia legibus, non leges politiae adaptandae”. This gradual adoption of a ‘pro-executive stance’ is attributable to the fact that the judges appointed to the Constitutional and Human Rights, and the Judicial Review divisions in the year 2019 are generally conservative-minded.
Of course, there were exceptions to this and some judges of the High Court did attempt to resist the worst depredations of authoritarianism by the government. Worth mentioning is a series of landmark judgments by Justice Mumbi Ngugi in the Lenolkulal (2019) review case, and Justice Ngenye Macharia in Waititu (2019) that purposively interpreted the leadership and integrity provisions of the Constitution on the question of stepping aside by state officers charged in court for engaging in economic crimes. Also noteworthy, was the progressive decision by a 5-Judge bench of the High Court in FIDA (2019) on sexual and health rights with respect to circumstances when abortion is permissible.
In sum, the High Court was a moderate performer with nothing noteworthy to write about.
In 2019 the High Court abandoned the role that it previously played as ‘the guardian of civil liberties’ in the face of an increasingly authoritarian government, which it has failed to keep within the bounds of law.
The Environment and Land Court
The Environment and Land Court was established in 2010 as a specialist court to deal with Environmental and Land claims. This was because of the importance and urgency of land reforms in the country. Thus the jurisprudence of the Court cannot be fully appraised outside of the history of Kenya’s transition from the colonial and authoritarian past to a democratic future premised on the imperative to redress the effects of the atrocities; chief among which is land grabbing, land dispossessions, and denial of access to land.
The land question has always occupied centre stage in Kenyan politics even in the face of urgent need for economic growth and job opportunities, delivery of basic services and pressing urban housing needs, as more people migrate from the rural hinterlands into towns and cities. The jurisprudence of the Environment and Land Court, a court whose very birth coincided with the constitution transition period of Kenya’s history and the imperative for social transformation particularly in the context of land reform; is generally characterised as non-transformative in its outcomes.
Its early-on impact on the land reform programme has earned it forlorn disdain from policy-makers and, prompted agitation by some legal practitioners for constitutional amendments that would effectively oust its jurisdiction and the merging of this court with the High Court. Commentary from leading academics on land reform offers the Environment and Land Court little comfort as their criticism raises questions around the courts’ appreciation of its transformative role.
However, in the public interest litigation space, the court rendered two remarkable transformative judgments in the year 2019. The Environment and Land Court in Kisumu rendered a remarkable judgment in the Kibos Sugar Ltd (2019) case vindicating the right to a clean and healthy environment for residents of Kisumu County exposed to environmental hazards by a sugar factory. Also remarkable was a judgment by a 3 judge bench of the Environment and Land Court in Nairobi in Afrison Export Import Limited (2019) – Ruaraka land grabbing saga where the court found that the government was being misled to pay compensation for land owned by the government.
The institutional efficiency of the Environment and Land Court has been hampered with low number of judges that is not commensurate with the large number of land cases in the country. It is hoped that recent recruitment of judges to this court will improve efficiency in this critical court.
The court scores a lowly D grade for both jurisprudence and efficiency.
The Employment and Labour Relations Court has been a star performer in the post-2010 dispensation, vigorously asserting and protecting the rights of employees.
Employment and Labour Relations Court
The relationship between employees and employers is often one of conflict due to their different interests in the employment relationship. One of the factors contributing to this conflict in the employment relationship is the unique manner in which the contract is established. Under normal circumstances, a contract is entered into on the basis that parties have equal rights and power to regulate the relationship. However, in employment contracts, the employee is largely at the mercy of the employer.
It is a truism that for any country to stimulate economic growth and maintain stability in industrial relations, it must have an effective structure for dealing with labour disputes. The 2010 Constitution sought to put in place an efficient dispute resolution mechanism to manage industrial disputes by providing for the establishment of an Employment and Labour Relations Court with the same status with the High Court. This is a departure from the pre-2010 dispensation where the then Industrial Court was considered to be a subordinate court.
The Employment and Labour Relations Court has been a star performer in the post-2010 dispensation and has vigorously asserted and protected the rights of employees. The only blot on its record in 2019 was the decision in ‘Halima Gababa Abdullahi v Lee Kinyanjui’ (2019) where the court failed to evince proper appreciation of the place of public law in statutorily underpinned employment relationships.
In terms of institutional efficiency, the Court has been a modest performer. The court scores a C on my assessment parameters.