A Friday preceding the Cord Saba Saba day rally, there had been a petition brought to the Constitutional division of the High Court by the lawyers representing Nairobi Senator Mike Mbuvi alias Sonko. The orders sought, among other matters, that the Court bars Coalition for Reforms and Democracy (CORD) leaders Raila Odinga, Moses Wetangula and Kalonzo Musyoka the right to have the rally that had been scheduled the following Monday.
Considering the fact that the rally had long been publicized yet the court action came too late in the day, it becomes easy to see that the petitioner was not seeking to resolve a constitutional or legal question but a political question. In fact the petitioner had litigated both recklessly and in bad faith. I will attempt to qualify the position I have taken on the said matter.
Some of the matters that were brought before the Court are in fact, non-justiciable – one that raises conflicts that cannot be resolved by the application of the law.
Take the example of a man fed up with his wife and kicks her out of their marital house. A court can order the man to take back his wife into the house and indeed the man will be bound by the decision of the court. Such an order however, cannot restore love that has since evaporated in the union. Political questions may be another example.
The prayers in that petition had been framed in a manner that then denied CORD a proper bargain in the matter. One prayer was to completely block Cord from convening the rally. The other was to allow the rally to proceed but stop them from calling for mass action. Finally there was a prayer for order committing the CORD luminaries to full responsibility for any acts of violence, destruction of property or lawlessness in circumstances or in the event of the rally or on the day of the rally.
A deep look at the nature of these prayers and the extent to which they can be practical is necessary.
Let us start with the attempt to stop the rally through a court action. The rally is a political process protected by both the Constitution and the other international human rights instruments domesticated by Kenyan laws. Article 37 provides for the rights of assembly, demonstration and picketing. However, it may fall in the provisions of Article 24 to check whether some of the guarantees of the Bill of rights can be subject to a limitation. When it comes to a case where a party wants such rights to be limited, then the level of proof is so high that the trial court may probably go into a serious investigation as to who is the best party to impose such limitations.
My strongest submission is that the types of reasons adducible under need for public order or threat to state security are too deep for the individual who had moved the Court. In the event that it is Nairobi Senator who had moved to the Court, he should have been told straight away that the need to block a political outfit from holding a political rally on grounds of national security is with the National Police Service. It is the part of the executive arm of government that collects empirical evidence about status of security. Therefore, even if the Court would have been willing to bar the rally from taking place, it would still require that the police should be the body to enforce the order of the Court. As such under the doctrine of Separation of Powers, Court may not have been the right forum to canvass the need for such a ban.
On the second prayer, to allow the rally but stop Cord leaders from calling for mass action, the Court had delved into hypothetical or moot issues. It is not always proper for the court to issue an order based on second-guessing the intention of the respondent. In so far as CORD had not called for mass action with terrible or undesired results, then it was actually premature for the court to start hypothesizing what the content of the address would be. It would have been abusrd for the court to issue such an order.
CORD had not at any time indicated that it would call for mass action at the rally. Take for instance, the fact that these prayers were sought in temporary measures pending ex-parte hearing and determination. It would thus be moot if a court were to find later on that the party had been unreasonably bared from conducting or calling for a mass action. There would be no way of compensating them for such a forfeiture of their political right. Mass action in any case is not a criminal process.
In essence, court had already equated mass action to violent demonstrations or to criminal activity. This is in itself prejudicial to the political outfit. It did not matter whether similar calls in the past have ended up being violent or even if the circumstances of calling for them were or appeared similar. Had CORD defied the order and successfully called for a peaceful mass action, it would have been interesting to see how CORD trio would be cited for contempt of court.
If a party desires to call for mass action, it only needs to notify the police well in advance so that the Police officers can ensure that the demonstrators are safe and non-criminal. In the absence of foretellers of violence, the order was given purely as an academic issue. The developing circumstances would make any of the directives or orders ineffective as “moot”.
The moot doctrine can be compared to the ripeness doctrine, another judge-made rule that holds that judges should not rule on cases based entirely on anticipated disputes or hypothetical facts. Similar doctrines prevent the federal courts of the United States from giving advisory opinions. In the Kenyan case, it has made a seriously foreseeable conflict in law to be referred to the Supreme Court so as to render the advisory opinion. It is thus not a matter for the High Court.
That takes me to the third prayer –that CORD (if allowed to have the rally) to take full responsibility over any acts of violence or destruction of property on day of or as a result of the rally. This order was initially granted as an order taken on consent. It required that CORD leaders be held responsible for any acts of violence as a result of the rally. Although the orders were taken on consent, CORD lawyer Tonny Oluoch knew that it would be enforceable or compliable under any written law. To begin with criminal activities occur in Nairobi on daily basis. People are mugged, conmen proceed with their plots on unsuspecting victims right under the nose of the police and armed robberies are also not news any more.
The question that would thus lend itself for determination then is how in law or in fact would a shop-lifting incident along Tom Mboya street, on saba saba day be said to be as a result of the CORD rally? What about the one a day after? I have already pointed out that the orders were issued on consent.
A consent order is one where parties in an adversarial matter agree to commit themselves and be legally bound by a court order. It would appear that the order actually placed the CORD brigade to take over the security roles which as per the legislation is a preserve of the National Police Service. It actually meant that the CORD leadears, if they were to be bound by this order, were to either start directing the personnel in the National Police Service on whom to arrest and how to behave or in the alternative relieve all police officers off their duties and start taking measures that would make them to be in compliance with the Court order. It actually gave CORD arresting powers so as to prevent criminal activities.
For lack of a good tact in language, this order was given on a vexatious and frivolous application. Frivolous litigation is the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won. This is the particular case of placing a responsibility on a party that does not ordinarily have that duty upon it by law.
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are non-justiciable.
A court can only decide on issues based on law. The constitution dictates the different legal responsibilities of each respective branch of government. If there is an issue where the court does not have the Constitution as a guide, there are no legal criteria to use. When there are no specific constitutional duties involved, the issue is to be decided through the democratic process. The court will not engage in political disputes.
It is necessary to look at the instances where consent orders issue. They are actually popular with family law though they also apply in civil matters. In many instances, the court on considering the order, is not bound to accept it but retains ultimate control. However, the judge will always take into account the terms agreed between the parties in whatever order he/she decides to make. That is why, when parties before the court take a consent order that has the overall effect of amending the Constitution even if it is only for one day, a court should decline the discretion of adopting the same. One would have expected some measurable constraints on the part of the Court.
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