BY BEVERLINE ONGARO
One of the most pragmatic means the Kenyan citizenry and foreigners get to experience the Constitution at work is through fair administrative action, by either public bodies or private bodies carrying out public functions, or both of them. That is, administrative action in respect of functions, such as issuance of work permits, provision of education and health care, registration as a citizens upon application, and decisions regarding employment in the public sector, and education.
Prior to the promulgation of the Constitution, persons challenging administrative actions in Kenya sought orders of judicial review from the High Court for the classical remedies stipulated in Section 8(2) of the Law Reform Act, Chapter 26 of Laws of Kenya, namely mandamus, prohibition, certiorari. Litigants anchored their arguments on Common Law principles and doctrines, supported by precedents on administrative action to persuade the court to hold in their favour.
Grounds which were relied upon to challenge administrative action by both public and private bodies include illegality of the decisions, unreasonableness, procedural unfairness, and contravention of legitimate expectation. Section 9(2) and (3) of the Act, require litigants to file their application for judicial review orders within six months after the act or omission of administrative action. Further, litigants have to establish that they have locus standi in order for the courts to issue them judicial review remedies sought.
Article 47(1) of the Constitution guarantees everyone the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) of the Constitution widens the threshold in respect of fair administrative action. It stipulates, ‘if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has a right to be given written reasons for the action.’
Enforcement for the right to administrative action is steadily gaining currency, a departure from the past whereby it seemed only a few well-heeled individuals could dare approach the courts to challenge unfair administrative actions. This is attested by the nature of recently determined cases.
Therefore, it is worth considering a few notable cases that illuminate circumstances which are people’s practical realities notwithstanding their socio-economic situation.
In the Micro & Small Enterprise Association of Kenya Mombasa Branch vs. Mombasa County Government & 43 Others, Constitutional Petition No. 3 of 2014 in H.C at Mombasa [2014] e KLR, the petitioners, who are hawkers, had been forcefully evicted without proper notices by the respondents. The Court found that the respondents by failing to hear the petitioners, giving them notice and an alternative place to set up their hawking business violated their right to fair administrative action as stipulated in Article 47.
This case is particularly important when it is considered that traders, especially hawkers have always been subjected to heartrending, brutal and forceful evictions by local authorities from their designated areas of operations. Previously, local authorities and now counties governments have habitually and brutally evicted hawkers after nurturing the legitimate expectation that hawkers could carry on their trade at a designated place without permits. Even in cases where such traders have permits, they have nonetheless been wantonly evicted, as demonstrated in the case of Moses Kiarie Kairuri & 4 others vs. Attorney General & 3 others, Petition No. 280 of 2013 in H.C at Nairobi[2014]eKLR. In this case, the petitioners, a self-help group, that had been issued with a Single Business Permit over years to occupy and carry on business along the riparian and partly a road reserve in Westlands Area, Nairobi, were issued with a Removal Notice to vacate the land within 48 hours of service of the Notice.
It does not suffice for such notice to be proper but it also ought to be lawful and reasonable. In the aforementioned Kiarie case, the court noted that the Removal Notice serviced upon the petitioners was proper as it was “issued on the letterhead of the City Council of Nairobi and by the officers of the County Government that have authority of such matters” but unreasonable. In this case, D.S Majanja, J stated, “this is a case where a Notice has been issued to petitioners who have occupied premises since at least 1984 by giving a 48 hours’ notice. By any measure, such a notice is in the circumstances unreasonable as it does not take into account the period of occupation, the nature of business or the opportunity for the petitioners to relocate. Our Courts have expressed displeasure in the manner in which wanton evictions continue to be carried out in this country without regard to the rights and fundamental freedoms of the occupants.”
“The Notice also fails the constitutional test in that it has not given the petitioners clear reasons for the notice. The reasons stated in the Notice is that, “your presence and or, that your structures is undesirable” are vague and cannot assist the petitioners to remedy the situation. This deficiency is particularly acute when one considers that the 2nd respondent has licenced the petitioners over the years. How then did their presence become undesirable?”
The speed at which administrative action is dispensed by relevant bodies is one area that remains a genuine concern among the members of the public. The public has to endure inordinate and unreasonable delay by state organs and public office holders executing their functions. But the right to fair administrative action will no doubt change this morass and lethargic culture. In the case of Republic vs. Cabinet Secretary for Ministry of Interior and Coordination of National Government & 2 Others ex parte Patricia Olga Howson, Misc. Civil Application No. 324 of 2013 [2014] eKLR, the petitioner, a British citizen married to a Kenyan citizen had applied for citizenship at the Immigration Department. In her application, the petitioner averred that the respondent’s failure to issue her with a Kenyan Citizen Certificate, six months from the date of application violated her right to fair administrative action within fair and reasonable time frame. The Department in a characteristic fashion of most state organs and public offices rebuttal to delays, argueddenied that the National Intelligence Service was in the process of conducting security vetting of all applicants for citizenship in order to provide confidential reports to the applicants. The Service justified that given there is no specific timeframe within which Kenyan Citizen Certificate is to be issued. The presiding Judge G.V Odunga stated, “…the applicant though not a citizen of Kenya is entitled to the protection of his rights enshrined in Article 47 of the Constitution.”
He further stated, “From the documents exhibited by the applicant, it is clear that the application for citizenship was made on March 13, 2013. The present application was filed on the September 13, 2013, six months later. Prima facie a delay of six months in processing an application for citizenship, in my view amounts to inordinate delay. It must always be remembered that the delay in processing such an application deprives the applicant from the enjoyment of certain rights conferred upon citizens hence there ought not to be an undue delay in processing such applications. To state that since there is no time frame for considering the application no amount of delay can be termed as inordinate in my view is irrational.”
Consequently, the Judge issued orders of mandamus directing the Cabinet Secretary for Ministry of Interior and Co-ordination of National Government, and the Director of Department of Immigration Services to issue all relevant and necessary documents for the registration of the applicant as a Kenyan Citizen within thirty (30) days, from the date the court issued the orders.
It can authoritatively be argued that the Constitution significantly transforms judicial review practice in Kenya, especially when it is considered that the right to fair administrative action is entrenched in the Bill of Rights. A person alleging violation of this right can seek from the court for remedies stipulated in Article 23(2) which include a declaration of rights, an injunction, a conservatory orders, and an order for judicial review. One of the significant and distinct features of the Constitution is that Article 22 dispenses with the requirement for locus standi in order for one to seek remedies provided for under the Bill of Rights, which includes orders of judicial review. It can therefore be argued that the Constitution does not only codify administrative law but also significantly expands this corpus of law, making it robust and transformative.
In cognisant of the Constitution’s transformative nature, legal scholars, notably Prof James Gathii, have cautioned the Judiciary to guard against developing a two-tracked system of judicial review, wherein one is swayed by the Common Law and the other by Constitution’s judicial review principles. The Judiciary has seemingly heeded to this caution. The Supreme Court in its decision, the Communication Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others, Petition No. 14 of 2014, S.CoK at Nairobi [2014] eKLR held the view that, ‘‘…we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law.”
Courts determining cases filed under judicial review application have endeavoured to fortify judicial review so that it coheres with Constitution, and also to heed to this aforementioned caution by legal scholars. In Republic vs. National Police Service Commission of Police exparte Francis Omondi Okonya, JR Misc. Civil Application No. 24 of 2014, H.C at Nairobi [2014] e KLR, wherein the applicant sought orders of certiorari on the ground that his right to fair administrative action under Article 47 had been violated, the court concurred and issued order of certiorari. By the same token, in Immanuel Masinde Okutoyi & Others vs. National Police Service Commission & Another, Petition No. 6 Consolidated with JR Misc. Application No. 11 & 12 of 2014, H.C at Nairobi [2014] eKLR, wherein the applicant sought orders for declaration of violation of Article 47 and certiorari and prohibition, the court held for the applicant: That the vetting process by the respondent did not meet the constitutional and administrative threshold of fairness. The Court further issued orders of certiorari quashing the decision of the respondent, prohibition against the respondents from effecting of the determination made against the Applicants, and mandamus directing the respondent to expeditiously commence de novo the process of vetting of the applicants while ensuring compliance with all applicable provisions of the constitution and fairness.
In judicial review, one of the ingredients to be satisfied by person seeking remedy is that they ought to have locus standi. Commendably, courts have endeavoured to adhere to Article 22’s liberal and purposive position on locus standi. In the case of Republic vs. County Government of Mombasa Ex-Parte Outdoor Advertising Association of Kenya, Judicial Review Case No. 63 of 2013, H.C at Mombasa [2014] eKLR the court invoked Article 22 to affirm that lack of local standi does not bar the courts from issuing appropriate remedy in judicial review cases.
The Court stated, “On locus standi, as a constitutional principle of public law and for promotion access to justice, the law makes generous provisions on standing over and above sufficient personal interest in the interest of enforcement of public law duties. See articles 22 and 258 of the Constitution. The Constitution recognizes the right of an association to litigate questions of fundamental human rights and interpretation of the Constitution on behalf of its members. It should not matter that such questions of fundamental rights or of interpretation of the Constitution arise in judicial review proceedings.”
Persons alleging violation of their right to administrative action have not confined themselves to seeking remedies for orders of judicial review under Article 23 from the High Court’s constitution and human rights and judicial review division. For example, in the case of Isabel Waithira Njoroge vs. Permanent Secretary Ministry of State for Provincial Administration & Internal Security & 4 Others, ELC Suit No. 745 of 2013, in the High Court at Nairobi [2014] eKLR the court found that the respondents had breached Article 47 of the Constitution and ordered them to pay the petitioner general damages of Sh500,000.
It can be argued that the Constitution provides multiple forums for which a person can seek enforcement of their right to fair administrative action. For example, in the Outdoor Case, E.M Muriithi, J, stated, “as damages are not recoverable under the judicial review procedure, the court will in interests of justice deem the proceedings as having been brought under Article 22 of the Constitution for the enforcement of the constitutional provisions of fair administration action and consequently award damages for the breach thereof.”
But then, there is a thin line between providing multiple forums from which an applicant can access justice for enforcement of fair administrative action and what would be termed as forum shopping. Given that an applicant can obtain remedies under Article 23 whether they file an application as a judicial review or a constitutional application, the question then is what would be the determinant factor for a litigant or a person taking one option and not another one?
Compounding, this is the nature of disparity in interpretation of what constitutes administrative action. In the case of Prisca Kemboi and 2 Others vs. Kenya Post Office Savings Bank, Petition No. 38 of 2013 in Industrial Court at Nairobi [2014] eKLR wherein the applicants were alleging the respondents violated their right to fair administrative action, because the respondent had nurtured their expectation not to work on Saturday, a day they observe Sabbath as per their religion, the Seventh Day Adventists. The Court erroneously held that human resource function performed by the respondent, which formed the premise on which the respondent made the decision to demand the petitioners to work on Saturday, are not an administrative action envisaged in Article 47 of the Constitution. This error is apparent when it considered that the respondents had raised legitimate expectation among the applicants, which satisfies established principle legitimate expectation under administrative law.
The Chief Justice of the Republic of Kenya, Dr Willy Mutunga has consistently articulated the Judiciary’s vision and endeavour to clear case backlog. He has encouraged members of the public to settle their disputes through alternative dispute resolution, primarily because this is enshrined in the Constitution, but also as a means to reduce case backlogs and not saddle courts with cases for determination. However, this vision and endeavour may not be tenable unless public bodies and private bodies make the right to fair administrative action part of their culture, and thereby mitigate on potential litigation for violation of the right.
This will be especially critical in 2015 for it is the year that marks the end of the Millennium Development Goal and the mid-term review of Vision 2030. Kenya has commitments under the Goal and the Kenya Vision 2030 to inter-alia, improve infrastructure, enhance security, improve livelihoods in the health sector, augment water and sanitation services and housing, foster equity and wealth creation, and boost devolvement of public service delivery. These commitments will be realised through administrative action by both public and private bodies.
While it is almost Orwellian task to expect public and private bodies to administer administrative actions with mathematical precision, nonetheless, it is desirable for these bodies to carrying out their administrative actions in a manner that clientele – members of the public – are not left to doubt as to whether the bodies are schizophrenic: in a manner that coheres with Constitutional values. Majanja J, succinctly stated in the Kiarie’s case, “The Constitutional guarantee of the right to fair administrative action is aimed at instilling discipline to administrative action so that the values and principles of the Constitution are infused in matters of public administration.”
Therefore, the Constitution seeks to ensure a balance of the public expectation for an efficient and effective service delivery, and the obligation of these bodies under administrative law, by spelling out that administrative actions ought to be expeditious, efficient, lawful, reasonable and procedurally fair. Lawyers can play a pivotal role in inculcating the culture of fair administrative justice in public and private bodies, given that they serve in these bodies. They are at a significant and advantaged position to advise the bodies and aid them put in place structures for fair administrative action.
Article 47 (3) of the Constitution obligates the Parliament to enact legislation to provide for review of administrative action by a court or an independent and impartial tribunal, and promote efficient administration. According to the fifth schedule of the Constitution, Parliament ought to enact this legislation within four years from the date of promulgation of the Constitution on August 27, 2010. This timeframe lapsed this year, and Parliament is yet to enact this legislation. Awkwardly, it has not communicated its decision to extend the time frame.
It is imperative that this legislation is enacted so as to instil a culture of fair administrative action and address aforementioned flagged issue on the multiple forums to seek enforcement of the right to fair administrative action.
In conclusion, the Constitution’s provisions on the right to fair administrative action and its enforcement thereof, provide a clear sign post on how administrative action ought to conducted, and act as panacea to efficient service delivery. The onus is on the pertinent stakeholders to fulfill their obligation so as to make it a reality.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
