Sound law or interpretive jiggery-pokery?

By Hashim Mude

The ruling by the Supreme Court of Kenya (SCoK) in ‘R v Ahmad Abdolfathi Mohammed & Another’ marks the latest twist in this dramatic trial whose facts read very much like a script from an action thriller. Tales of explosives in golf courses, secret counter-terrorism ops, torture and undercover agents paints a picture of a Hollywood blockbuster rather than a work of non-fiction.

This is a case which originated from the trial and conviction of two Iranian nationals before the magistrate’s court for various offences relating to terrorism. They unsuccessfully appealed to the High Court but were acquitted on a Second Appeal to the Court of Appeal. The State then filed an application for leave to appeal the acquittal to the SCoK, which was denied by the Court of Appeal. It then made a similar application to the SCoK, which granted it leave as well as a stay of the acquittal of the accused, with the effect that they remained in custody pending determination of the appeal. While the political dynamics and the theatrics behind this case are fascinating, my focus is not on its particulars. Rather, I argue that this ruling has much broader implications on the right of appeal in criminal cases which deserves some scrutiny.

Tyranny of the Rule of Courts

Prior to the enactment of the Security Laws (Amendment Act), 2014, the State could only appeal the acquittal of an accused persons from the subordinate court to the High Court purely on matters of law. Appeals to the Court of Appeal on the other hand were limited to cases of exceptional public importance, and only where the High Court was exercising original jurisdiction. On such an appeal, the Court could only issue a declaratory judgment in order to clarify potentially unsettled questions of the law which would not operate as a reversal of the acquittal. This is in line with the general restrictive nature of such appeals adopted across a wide swath of other jurisdictions.

This position changed after the security Laws (Amendment Act), 2014 amended the Criminal Procedure Code (CPC) to allow the State to appeal the acquittal of accused persons both on matters of law and fact to the High Court and the Court of Appeal as the case may be. However, this amendment did not repeal the declaratory judgement proviso of the CPC. This means that we now have in force two contradictory provisions delineating the extent of the state’s right of appeal, a fact which did not escape the attention of the Court of Appeal. Glaring anomalies aside, the phraseology of the amendment clearly spells out the extent of the states right of appeal. It provides:

“When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.”

The use of the phrase “on a trial held” means that the State only has a right to appeal an acquittal from a court exercising original jurisdiction to either the High Court or the Court of Appeal. Therefore the right to appeal from a court exercising appellate jurisdiction is asymmetrical as only the accused possesses it. As this case originated at the magistrates court, it was subsequently appealed to the High Court and a second appeal preferred by the accused to the Court of Appeal any right of appeal that the state would have had was extinguished at the High Court, which was exercising appellate jurisdiction.

It is undisputed that the Court of Appeal has the power to hear appeals from the High Court generally. However, the court has traditionally required a party to demonstrate that they also have a right of appeal i.e. even if the Court has the jurisdiction to hear an appeal, one must also have the right to do so conferred on them by statute. The approach in Rawal suggests that the court has now shifted and considers that both the right of appeal and the jurisdiction to hear appeals to be subsumed and provided for under the Constitution. However, even in that case the court appreciated that statutes such as the Criminal Procedure Code, the Elections Act and the Arbitration Act can nonetheless limit the right of appeal.

Consequently, any right of appeal on the part of the state was extinguished at the High Court by dint of Section 348A of the CPC. It would not have had a right of appeal before the Court of Appeal had the accused persons been acquitted by the High Court. By extension it does not require mental gymnastics to conclude that it would equally not have a right to move further up the judicial hierarchy and seek leave to appeal to the Supreme Court. In spite of this clear statutory provision to the contrary, the SCOK nevertheless granted the state leave to appeal to the apex court. It noted that while it was not specifically mentioned in the statute as one of the courts the state could appeal to, Article 163 (3) (b) clothed it with the necessary jurisdiction to “hear and determine appeals from [inter alia] the Court of Appeal” and therefore interpreted Section 348A of the CPC in this regard ultimately finding that the appeal was ‘properly grounded in the Constitution.’

The court re-interpreted this clear statutory provision without elaborating or rationalising this departure in its ruling. Some scholars have referred to this phenomenon as the tyranny of the Rule of Courts, whereby the Courts “depart from the intention of the enacting Parliament and instead imposes on the statute the meaning which the court thinks ought to have been enacted”.

As already noted, parliament has placed limits on the state’s right of appeal, this was the intention of the legislature. Had it intended for the state to possess a similar right of appeal as an accused person in criminal cases, it would have clearly done so through the amendments to the CPC. By granting leave to appeal and therefore overriding this statutory provision the court seemed to be guided by the Rule of the Court and not the Rule of Law. This sets a dangerous precedent. Legislative authority vests with parliament not the courts. Provided the laws they promulgate are constitutional, clear and coherent, they ought to bind the courts. This is the very foundation of the notion of separation of powers. The judiciary is a creature of the Constitution which provides:

“…In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law, and shall not be subject to the control or direction of any person or authority.” 

It is the courts that are subject to the law, not the other way around. At a stretch, the SCoK could have considered whether any statutory limits placed on the right of appeal are unconstitutional in light of Articles 163 and 164, and rationalised its decision. If this is indeed the case, then matters in which the right of appeal is carefully regulated by statute such as the Arbitration Act could nevertheless be subject of an appeal provided they satisfy the test of “general public importance.” This is certainly more within its scope of the court’s power than the very liberal attempt at statutory re-interpretation bordering on the re-invention it has engaged in.

The test of “general public importance”

A further area of concern in the court’s ruling is the interpretation of the test of “general public importance.” In order to obtain leave to pursue an appeal at the SCOK, a litigant must demonstrate that their case raises “issues of general public importance.”

An analysis of its construction in other jurisdictions reveals a shyness to provide a concrete definition of the term. This is necessitated by its highly subjective nature, which makes it undesirable to lay down any hard and fast rules to ascertain what amounts to public importance. By avoiding concrete definitions, the courts have allowed themselves “greater flexibility” to determine what it is on a case-by-case basis. However, this is not to suggest that it is to be deployed in an unwieldly and unpredictable manner. Over time, it has become apparent that there are certain factors that courts considers to determine whether the public importance requirement has been met. For instance, in Canada and the US, public importance exists where there are clear conflicting appellate authorities on the same legal question, or where there are conflicting legal regimes that might govern the same facts, or where a novel constitutional issue has been raised. Therefore, public importance is a matter of law.

This is not the case in Kenya. The Supreme Court has interpreted Article 164(3) (b), which refers to a “matter of general public importance” as being wider than the phrase “a point of law of general public importance” adopted in other jurisdictions. In fact, in this particular case, the Supreme Court did not even consider any of the legal aspects raised by the state, including the alleged uncertainty of the law relating to circumstantial evidence and the apparent conflict between Section 25A and 111(1) of the Evidence Act, which could potentially have amounted to points of law of general public importance. Rather, it was predicated on a point of fact. The court’s analysis on this was rather straightforward. It found that case raised a matter of general public importance because the crime of terrorism undermines national security.

At its face, this seems rather sound and aligns with our intuitions. Surely there is a public interest in ensuring that perpetrators of such offences are brought to book in order for the public to know that the state is serious about the security of its citizens. However, a deeper scrutiny will demonstrate the danger this superficial construction of public importance poses to our criminal justice system. 

In order to do so we must first consider what public importance connotes within the broader ambit of criminal prosecutions. The terms “public importance” and “public interest” have been used interchangeably by the courts and come to the fore at several stages of the prosecutorial process. A criminal offense is a creature of statute, enacted after parliament, acting in its representative capacity and after considering the public interest, delineates a particular activity as unlawful. It is also incorporated in the severity of the sanctions prescribed by the legislature as well as the sentencing discretion exercised by the court. The greater the public interest of ensuring individuals are dissuaded from carrying out certain acts, the more punitive the sentence imposed will be.

It also finds expression in the scale of resources availed to the police to investigate and gather evidence in relation to particular offences. Furthermore, before initiating criminal proceedings, prosecutors consider the “public interest” in deciding whether or not to prosecute an offender. Moreover, there is a “public interest” served in ensuring that all ‘serious crimes’ include those that cause ‘fear and insecurity’ – which are not limited to terrorism but also include drug trafficking, murder, armed robbery and a plethora of other criminal offences are investigated and the perpetrators brought to book.

However, this is not the only public interest under consideration. Restraints and parameters are set out to prevent the might of the state from being abused to the detriment of accused persons in their pursuit to hold those engaging in unlawful conduct to account. These include constitutional safeguards such as the non-derogable rights to apply for habeas corpus and the bar against torture. One such restraint that is central to this matter is that placed on the state’s right of appeal in criminal cases.

This limit, imposed by statute, reflects the balance between the public interest of prosecuting offenders weighed against the public interest to ensure accused persons are not subjected to repeated attempts to convict them of the same offence. The result of the weighing of these two interests was a compromise by which the state would be granted this limited right of appeal.

The Court in its ruling did not seem to appreciate this latter aspect of public interest derived from parliament’s legislative intent. In fact it only spent one paragraph of its 34 page ruling on this vital jurisdictional issue, which has left many questions unanswered. Is public importance determined by the severity of a crime? Is there now a special category of offences that grants the prosecution an unlimited right to appeal in the event of an acquittal/s? What is the test applicable in determining crimes that fit within the category of general public importance? Until these questions are resolved, it is not difficult to envision a floodgate of similar applications by the DPP before the Court of Appeal and the Supreme Court based on this ruling. 

Staying an acquittal

The court went further than simply granting the state the right to appeal. It also ‘stayed’ the acquittal of the accused persons by asserting that it had inherent jurisdiction to preserve the subject matter of the appeal, which the court believed would be defeated should the accused leave the jurisdiction of the court.

The court argued that such powers were not unique and had been deployed in other jurisdictions. It relied on the Malaysian case of ‘Prosecutor v. Bird Dominic Jude’ and the Indian case of ‘The State of UP v. Poosu & Another.’ Whereas it is true that in both of these cases the courts have indicated that they are clothed with the requisite jurisdiction to order acquitted accused persons to be held pending their appeals, they are distinguishable from the instant case both in the context within which they were decided as well as the orders issued by the respective courts.

Unlike the SCoK, the Court of Appeal of Malaysia is statutorily empowered to remand an accused pending disposal of their appeal and this categorically excludes the usefulness of this precedent in Kenya. Similarly, in its holding the Supreme Court of India principally relied on two factors in finding that it had similar powers. Firstly, the Criminal Procedure Code allows the High Court of India to remand accused persons pending disposal of appeals. The Court interpreted Article 13 and 142 of the Constitution as granting it the same powers possessed by the High Court in this regard and predicated its exercise of jurisdiction in this manner on statutory powers and not merely its inherent jurisdiction. The necessity for a legislative and underpinning for the deprivation of an individual’s liberty is particularly salient. It finds support under both International Law and the Constitution of Kenya. The principle rationale being that rights (particularly one as important as an individual’s liberty) ought not to be deprived in an arbitrary or fickle manner. Rather it ought to be foreseeable.  The manner in which the liberty of the accused persons was curtailed in this case was certainly an unforeseeable, unexpected and novel exercise of the court’s inherent jurisdiction.

Secondly, prior to the statutory codification of this power of remand in 1882, there was a “judicial practice” in India for the High Court to secure the attendance of an accused pending appeal. The SCoK has not identified a similar practice in Kenya, and this, I dare say, is because none exists. Rather, such an act is contrary to judicial practice. Moreover, I am sceptical as to the applicability of pre-1882 colonial judicial practice in India to a modern and progressive Constitution such as Kenya’s, particularly in the sphere the rights of an accused person which have certainly come a long way since then. Furthermore, in the Poosu case, the court indicated that because of the far reaching nature of this power it was to be exercised only where “The order of acquittal recorded by the High Court is perverse or clearly erroneous and results in a gross miscarriage of justice.”

The SCoK did not even engage in a superficial analysis of the strength of the prosecution’s case in order to satisfy this requirement. Even if the court did have the jurisdiction to remand the accused, there were no perverse or clearly erroneous parts of the judgment identified to justify the exercise of this power.

Finally, the orders issued by the court are equally troublesome. In the Malaysian and Indian cases respectively, the courts did not issue stay orders but rather considered the scenario as would any court exercising original jurisdiction in any criminal case. The accused persons are presumed innocent and the usual circumstances applicable to any consideration for admission into bail or placement into remand come to the fore. The SCoK took a different approach. By staying their acquittal it suspended the finding of not guilty by the COA and the position ex-ante has reverted i.e. the accused are presumed to be guilty. This is particularly odd because in its ruling the court has not conducted any analysis of the COA finding of ‘not guilty’ in order to justify such an order. In my view, this was an easy cop out for the court since by doing so it was relieved of the burden of considering whether the accused should be admitted to bail or not as a result of which both the right to be admitted to bail on reasonable terms and the presumption of innocence were, in my view, so lackadaisically cast aside by the apex court.

It is for these reasons that this ruling is akin to a pebble in a pond. It has the potential to reverberate and send ripples through the entire framework of the criminal justice system in Kenya, potentially eroding safeguards for accused persons caught up within it. This young Constitution is extremely progressive but in order for it to fulfil its promise, it relies on the SCoK as its ultimate arbiter to expansively interpret the Bill of Rights and jealously guard the individual liberties set forth within it.

This ruling not only fails to do this but is also self-contradictory, confusing and incoherent – three strikes for any jurisprudence emanating from a superior court. 

— Writer is an Advocate of the High Court of Kenya