Supreme Court takes back seat on landmark jurisprudential issues

 

BY HERMAN OMITI

Article 2 of the Constitution of Kenya declares the Supremacy of the Constitution over any other law, person or organ within the Republic. Article 2(1) states that, “This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.” Article 2 (4) provides that “Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”

Article 165(3) (d) confers the High Court with the jurisdiction to hear any question with respect to the interpretation of the Constitution, including the determination of inter alia the question whether any law is inconsistent with or in contravention of the Constitution; and the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution. The High Court thus has the authority and the duty to declare void any law or invalidate any action done under the constitution which it finds inconsistent with the Constitution. This power, however, does not vest in the High Court exclusively; the Court of Appeal and the Supreme Court can also exercise this authority in their capacity as appellate courts.

 

Retrospective effect of a Declaration of Invalidity 

Traditionally, the general rule has been that once a law is declared void, the declaration operates retrospectively except where the Constitution provides for a possible prospective effect like in some jurisdictions, for example in South Africa. In Kenya, neither Article 2(4) nor Article 165(3) gives the court the power to declare prospective invalidity. In the absence of such a provision, it is presumed that a declaration of invalidity will have retrospective effect.  

Kriegler J in Sias Moise v Transitional Local Council of  Greater Germiston Case CCT 54/00 stated with reference to the South African Constitution that; “The current position is that the Constitution assumes the full retrospective effect of constitutional invalidation and empowers the court declaring the invalidation to limit its retrospective effect … where a court has declared a statute void, the declaration operates retrospectively from the time the inconsistency arose” either from the moment the constitution came into force, in case of a pre-constitutional legislation, or from the moment the statute came in force in the case of a post-constitutional legislations. 

Ackerman J in the case of National Coalition for Gay and Lesbian Equality and Another v Ministry of Justice & Others, Constitutional Court Case Number 11 of 1998, while commenting on the same issue in South Africa observed that; “…under the 1996 Constitution, and in the absence of a contrary order by a competent court, nothing more is provided other than that it has retrospective effect.”

As Will Bateman observes, despite the general presumption of the void ab initio doctrine, it is clear that it can cause immense inconvenience, especially in the context of an unconstitutional statute that has facilitated a vast number of governmental acts and private transactions. When such a statute is declared invalid, the void ab initio doctrine holds that all public and private acts performed in reliance on that statute have no legal foundation. Will Bateman observes thus: “In a pen-stroke, governments and private individuals can be exposed to potentially enormous liability. Indeed, this may be a context in which it is timely to recall that ‘a written constitution is not a suicide pact.”(Will Bateman, Legislating against Constitutional Invalidity: Constitutional Deeming Legislation Sydney Law Review [Vol 34:721)

Justice Kate O’Regan, former judge of the Constitutional Court of SA, notes with regard to the South African Constitution that the constitution provides for what he terms constitutional remedy in case of declaration of invalidity; that is, once a court has concluded that a statutory provision is inconsistent with the Constitution, it must declare the provision unconstitutional. The court does however; under section 172, have a range of choices as to the precise terms of the declaration of constitutional invalidity and any ancillary relief. The two obvious decisions for a court are: he scope of the order of invalidity; and the effective date of such order. The court will have to determine whether such a declaration should come into operation immediately with prospective effect only, or, should it have retrospective effect, whether it should be suspended for a period to give the relevant authorities time to correct the constitutional problem. (Justice Kate O’Regan, Fashioning constitutional remedies in South Africa: some reflections).

 

Presumption of Constitutionality of Legislation

The rebuttable presumption of constitutionality of legislation and also the presumption that the legislature while enacting law is aware of other existing statutes, give the citizens legitimate expectation that the law protects whatever they do under it. It is therefore important that whenever a court sets to declare a statute invalid on the basis of its inconsistency with the constitution, the court must interpret the constitution holistically and should consider the import and effect of the statute in question. This doctrine is also known as the common sense rule in some jurisdictions. It is to the effect that the common law requires the court when considering competing interpretations, to presume that parliament intended common sense to prevail. The doctrine has been espoused in a series of cases, for example, in Gardner v Jay (1885) Ch D and Wrothwell (FJH) v Yorkshire Water Authority [1984] Crim. LR 43.

Majanja J, addressing this issue in the case of Susan Wambui Kaguru & 4 others v AG and others [2012] eKLR, stated that; “… I reiterate that every statute passed by the legislature enjoys a presumption of legality and it is the duty of every Kenyan to obey the very laws that are passed by our representatives in accordance with our delegated sovereign authority. The question for the court is to consider whether these laws are within the four corners of the Constitution.”

Justice Ochieng in Ali Hassan Joho & Another v Suleiman Said Shahbal & Others [2014] eKLR, while declining to strike out the petition filed pursuant to section 76(1) (a) of the Election Act observed thus: “As at the time when the petitioner was instituting the petition herein, section 76 of the elections Act was an integral part of the law in force. The said law was, prima facie, lawful. Its legality had not been challenged. Therefore, when the petitioner filed his petition…he considered himself to be complying with the law.  He did not err. If there be any error, it was committed by Parliament; not the petitioner.” The Judge thus concluded that the petitioner could not be punished for the error committed by Parliament.

 

The Common Law Doctrines of Temporary Validity and Prospective Invalidity

Justice Ochieng in this case did not accept the argument, correctly in my view, that since the Constitution of Kenya does not expressly give the courts the option to give any other ancillary relief upon declaring a statue invalid, any law declared void in Kenya must only operate retrospectively. If this position were to be accepted, it would lead to chaos, anarchy and uncertainty since the citizens would then treat every law emanating from Parliament with suspicion and contempt. The courts should not therefore make a declaration of invalidity then simply sit back and watch the adverse effects of such declaration. Instead, they should coin appropriate remedies in the circumstance. In most jurisdictions, courts have used five major mechanisms to limit the fully retroactive nature of declarations of invalidity, including: (a) temporary suspensions; (b) prospective invalidation/de facto doctrine; (c) temporary validity accompanied by transition periods; (d) the doctrine of qualified immunity; (e) the general rule limiting individual remedies in combination with a declaration of invalidity. The two doctrines of temporary validity or prospective invalidity ensure that a declaration of invalidity does not have adverse effect on parties who, in good faith, acted upon such law before it was declared invalid. 

 

The Test of Necessity 

The development of these doctrines and their operation is hinged on three fundamental ideas; first, the understanding that law is a dynamic body of rules whose application change from time to time depending on the need of the society in question at that particular point in time and that the dynamic nature of these rules can only be effected and established through judicial interpretation and decisions. Secondly, that the declaration of invalidity should not create a vacuum in the law or interfere with rights and obligations legally acquired under the statute prior to such a declaration of invalidity, and thirdly, that whereas the courts are under obligation to declare a law void due to its unconstitutionality, the courts have the discretion to give a prospective effect of such a declaration of invalidity. 

In exercising this discretion, the court must strike a pragmatic balance between the two conflicting considerations – the retrospective and the prospective effects which discretion it must exercise judiciously and with great caution. The doctrines are applied on a case by case basis and only in very necessary circumstances. Thus, the test is that of necessity, as applied in most jurisdictions.

In the Canadian case of Canada (Attorney General) v. Hislop, [2007] S.C.J. No. 10, [2007] 1 S.C.R,   the Supreme Court stated as follows: “The supremacy clause, now enshrined at s. 52, is silent about the remedies which may flow from a declaration of nullity. Does it mean that such a declaration is always both prospective and retroactive?…A body of jurisprudence now accepts the legitimacy of limiting the retroactive effect of a declaration of nullity and of fashioning prospective remedies in appropriate circumstances … When the Court is declaring the law as it has existed, then the Blackstonian approach is appropriate and retroactive relief should be granted. On the other hand, when a court is developing new law within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment.

 

Temporary Suspensions/Validity

This doctrine gives the court the power to suspend a declaration of invalidity, in order to allow the legislature time to enact legislation to respond to the court’s finding of unconstitutionality. The doctrine in essence therefore serves to facilitate the legislature’s function in crafting a remedy. Daniel Guttman explains with regard to the Canadian approach: “If the government fails to enact new legislation within the period of suspension, the Court’s declaration would apply retroactively, unless they receive an extension from the Court (Daniel Guttman Hislop v. Canada — A Retroactive Look). 

Daniel Guttman gives instances from the decision of the Canadian Supreme Court in Hislop v Canada where the court can suspend the declaration of invalidity. The court, when giving immediate retroactive effect to the declaration of invalidity, must consider if the declaration would inter alia; (i) “pose a danger to the public”; (ii) “threaten the rule of law”; or (iii) “result in the deprivation of benefits from deserving persons.” Thus where the court satisfies itself that by giving a declaration of invalidity a retroactive effect, one of the three instances would arise, the court should apply the doctrine of temporary suspension. It is a temporary validity which in effect means that the declaration will only take effect after the expiry of a period specified in the declaration. 

This approach is not free from criticism though. Its opponents have argued that by suspending the declaration of invalidity, the Court allows the constitutional infirmity to continue temporarily so that the legislature can fix the problem and therefore the Court extends the life of a law which never existed in the first place. Despite these criticisms this approach is one of the constitutional remedies that common law courts have coined to deal with negative consequences of a declaration of invalidity.

 

Strict Application

Courts have, however, been very strict in the application of this doctrine insisting that the declaration of invalidity must, if applied retrospectively, manifestly lead to a negative effect, either by creating a lacuna in the law or set aside rights, obligations, convictions or acquittals or anything done under the statute prior to the date of judgment which declared the statute unconstitutional. In Case and Another v Minister of Safety and Security (1996) S.A. 617 (CC), where the Constitutional Court of South Africa, declared provisions of a statute unconstitutional, it rejected an application for it to invoke the doctrine and suspend the invalidity.  In the courts view, the immediate taking effect of the declaration would not create a lacuna in the law, as there were other laws that covered the feared mischief. Secondly, although the grounds on which the courts have applied the doctrine are expressed in different formulations, the core ground is that if the invalidity is allowed to have retrospective effect it would lead to injustice, hardship, lacuna in the law or legal chaos involving rights and obligations vested under the invalidated law. 

In Re Manitoba Language Rights [1985] 1 S.C.R. 721 at 724, the Canadian Supreme Court in its effort to preserve the rule of law and to balance the legislative duty of Parliament in the face of unconstitutionality of statute, and the need to preserve the rule of law and avoid a legal lacuna, deem temporarily valid and effective the Acts of the Manitoba Legislature, which was found to be unconstitutional. The court then directed the period of temporary validity to run from the date of the judgment to the expiry of the minimum period necessary for translation, re-enactment, printing and publishing. Similarly in R. v. Bain, [1992] 1 S.C.R. 91 the court stated that; “The declaration of invalidity resolves all future problems. However in order to avoid a hiatus the declaration should be suspended for a period of six months. This will provide an opportunity to Parliament to remedy the situation if it considers it appropriate to do so –Per Lamer C.J., La Forest and Cory JJ at 104.

 

Prospective invalidity

Prospective invalidity also referred to as prospective overruling or the de facto doctrine in some jurisdictions is another common law doctrine that gives the court the power upon declaring a statute invalid, to order that the declaration will apply only to the future and will have no retrospective effect in certain circumstances. The application of this doctrine is in recognition of the fact that strict application of retrospective invalidity at times leads to undesirable consequences and that the declaration of a statute to be unconstitutional should not in effect nullify the rights and obligations that accrued under it. The doctrine of prospective invalidity thus enables the court to avoid such consequences. The doctrine helps to preserve the rule of law and a stable constitutional order by preventing chaos and anarchy and ensures legal certainty. 

This doctrine which has its origin in the US, and was later adopted in India, Malaysia and other jurisdictions operates to protect reliance of people on a law before it is nullified. If the court realises that during the period when the law was good law that people organised their lives on it, the court should consider the consequences of such a declaration on the citizens if the law is nullified. (See the cases of Linkletter v Walker, Warden, 381 US (1965) 618 Simpson v AG of New Zealand (1955) NZ La Reports, and Public Prosecutor v Dato Yap Peng (1988) LRC (Const)). The doctrine thus characterises a state of affairs which, for all practical purposes, must be accepted notwithstanding its illegality or illegitimacy. 

The courts have, in relying on the doctrine of prospective invalidity held the view that retrospective effect will not be accorded to law where a substantive interests have or may have been vested in reliance on a law as it was prior to the declaration of invalidity. In the Re Manitoba Language Rights (supra) the Court explained that the doctrine recognises and gives effect to justify expectations of those who have relied upon the acts of those administering invalid laws and saves those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and always will be, enforceable and unassailable.

The Supreme Court of Canada in the Hislop Case observed as follows; “Fully retroactive remedies might prove highly disruptive in respect of government action, which, on the basis of settled or broadly held views of the law as it stood, framed budgets or attempted to design social programmes. Persons and public authorities could then become liable under a new legal norm. Neither governments nor citizens could be reasonably assured of the legal consequences of their actions at the time they are taken…People generally conduct their affairs based on their understanding of what the law requires. Governments in this country are no different…where a judicial ruling changes the existing law or creates new law, it may, under certain conditions, be inappropriate to hold the government retroactively liable. An approach to constitutional interpretation that makes it possible to identify, in appropriate cases, a point in time when the law changed, makes it easier to ensure that persons and legislatures who relied on the former legal rule while it prevailed will be protected. In this way, a balance is struck between the legitimate reliance interests of actors who make decisions based on a reasonable assessment of the state of the law at the relevant time on one hand and the need to allow constitutional jurisprudence to evolve over time on the other.”

 

The Kenyan Jurisprudence 

Despite several opportunities for Kenyan courts, especially the Supreme Court, to develop a clear, homemade jurisprudence in this area, the courts have shied away from taking this bold step. A few but very significant cases have raised the question of retrospective vis a vis retroactive effect of a declaration of invalidity of a law but the court in all those instances has chosen to “exercise restraint”. Some of these cases include the Election Petitions in Ali Hassan Joho & Another v Suleiman Said Shahbal & Others [2014] eKLR; Mary Wamboi Munene v Peter Gichuki King’ara and 2 others [2014] eKLR; and, most recently, the Communication Commissions of Kenya & 5 Others v Royal Media Services Ltd & 5 Others SC Petition No. 14 of 2014( Digital Migration Case).

In the Joho Case, the High Court grappled with the issue, arriving at conflicting opinions, but providing very important pointers which the Supreme Court unfortunately ignored completely when called upon to address the same issue. One of the thorny issues in the Joho Case was the constitutionality or otherwise of section 76(1) (a) of the Elections Act. The Elections Act was enacted by Parliament pursuant to the power given to it by Article 87(1) of the constitution.  Article 87(2) requires the elections results to be declared without prescribing the medium or mode of declaration.  

Parliament, in its wisdom, prescribed the medium under section 76(1) (a) to be by gazette notice. Thus petitioners relied on this provision and filed their election petitions as prescribed by it. The question that arose was whether such parties, having relied on an existing and otherwise valid law and having suffered as a consequence of their reliance on the law, would have any recourse. For example, in the Joho case, having declared the provision of the statute void, was it still open for the court to proceed with the matter? Could the court cure the effect by interpretation? Article 259 as read with Article 10 of the Constitution requires that the interpretation of the Constitution be broad so as to realise the objectives set out in Article 10  Article 259(1) of the Constitution sets out the principles of constitutional interpretation to be in a manner that (a)  promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c)  permits the development of the law; and (d) contributes to good governance.

Justice Ochieng faced, with a similar question in the Joho Case on whether to strike out a petition filed under section 76(1)(a) having declared the same invalid seemed to have the above provision of the constitution in mind and expressed himself as follows; “Should I therefore strike out, as being invalid? I revert to Article 87(1) of the Constitution.  It donated a power to Parliament to enact legislation which would establish mechanisms for timely settling of electoral disputes. Parliament exercised its mandate, and section 76 of the Elections Act is a part of the results of Parliament’s work.” The Judge observed thus; “…As the petitioner complied with a law which was presumed to be lawful, at the time, it would be wrong, in my considered opinion, to punish him for the mistake of the Parliament.” He went ahead to state that: “By striking out a petition which was, prima facie lawful at the time it was filed in court, this court would be purporting to impose this decision retroactively.  It would be akin to punishing an accused person for an act which was committed by him before such act had been criminalised by the law… I therefore decline the applicants’ invitation, to strike out the petition…” 

The Supreme Court and the Thrown away Opportunities to Create Jurisprudence

Both the Court of Appeal and the Supreme Court, however, disagreed with Ochieng J on this point. The Court of Appeal in both the Joho Case as well as the case of Paul Posh Aborwa v Independent Electoral and Boundaries Commission and 2 Others, Civil Appeal No. 52 of 2013, expressed a different view. In Paul Posh Case, the Court of Appeal held that: “The result of the foregoing is that we uphold the preliminary objection and determine that we have no jurisdiction to hear and determine the appeal emanating as it does from the proceedings that are a nullity by reason of having been instituted outside of the time limit set out under Article 87(2) of the Constitution of Kenya, 2010.”

The Supreme Court on its part declined to give the declaration of invalidity a prospective application in both the Joho Case and Mary Wambui Case arguing that it is keen to ensure predictability, certainty, uniformity and stability in the application of the law. As discussed in the foregoing, section 172 of the South African Constitution empowers the court to annul a law for inconsistency with the Constitution, but provides that the court may require the legislation to correct the defect in the law within a specified period, and that such law shall remain in force pending correction or expiry of the period so specified. Whereas Kenya does not have a similar provision with such latitude to the courts in the constitution as the South African one, the Supreme Court has intimated that it has the power to interpret the constitution such as to give a declaration of invalidity a prospective effect but has consistently shied away from tackling the issue as it would be expected to do.

In Mary Wambui Case (supra), the Supreme Court had the opportunity to give this declaration of invalidity of section 76(1) (a) a prospective effect. It, however, shied away arguing that this was not an appropriate circumstance for that. The court stated that; “In Joho, this Court had been silent on the effect of its declaration of invalidity of a statute and therefore unequivocal about the invalidity of any action emanating from Section 76(1) (a) of the Elections Act. However, in appropriate cases, this Court may exercise its jurisdiction to give its constitutional interpretations retrospective or prospective effect.  In Re Senate Advisory Opinion Reference No. 2 of 2013” The court observed that; “where this Court held that, whether prospective or retrospective effect attends a declaration of nullity, is to be determined on a case by-case basis.”

It is plausible to argue that these election petitions would have been the proper basis for the Supreme Court to exercise this power. From the look of things, the court in its usual manner exercised restraint waiting for better and bigger opportunities in future to express itself. Election petitions are sui generis, while in most aspects it is civil, it touches on the determination of the democratic will of the people, and in certain instances, some allegations are criminal or quasi criminal. Thus laws governing election processes must be interpreted with this reality in mind and where a provision of such law is declared void due to its inconsistency with the constitution, the courts should have the discretion to give such a declaration prospective application.

 

The Digital Migration Case created a unique opportunity for the Court to substantially respond to these Issues

Upon the conclusion of Election Petitions, it did not take long before the issue came before the Supreme Court once again. The Digital Migration Case (supra) sought the court’s intervention on a number of issues, the important one for this discussion being the question whether the holding of the Court of Appeal that the 1st appellant was not the body contemplated by Article 34 of the Constitution, did not vitiate all the decisions made by the 1st appellant, but it affected “broadcasting decisions” after the effective date, rendering them void. This brought at the very core the question of retrospective vis a vis prospective effect of a declaration of invalidity of a statute or an action performed under a statute or the constitution.

The Appellants, in their submissions, made very strong arguments on non-retroactivity of the provisions of the Constitution of Kenya. They relied on the Supreme court decisions in Samuel Kamau Macharia v. Madhupaper International Limited and Others, SC Application No.2 of 2011; [2012] eKLR; and Mary Wambui Munene v. Peter Gichuki King‘ara and 2 Others, SC Petition No.7 of 2014; [2014] eKLR. They argued that the supremacy clause of the Constitution is not to be read as nullifying the operation of all laws enacted before the promulgation of the Constitution in 2010 and that a declaration of nullity was not the appropriate relief for the Court of Appeal to grant. The appellants argued further that had the Court of Appeal come to a conclusion that the Kenya Information and Communications Act, 1998 was invalid, then the Court would have been under duty to regulate the impact of the declaration of invalidity, because it was a pre-constitutional statute. 

The respondents on the other hand argued, “…that the holding of the Court of Appeal that the 1st appellant is not the body contemplated by Article 34 of the Constitution, did not vitiate all the decisions made by the 1st appellant, but it affected “broadcasting decisions” after the effective date, rendering them void.”  They further argued that any legislation that is inconsistent with the Constitution is void to the extent of the inconsistency as from the time of enactment of that legislation, or as from the time of the promulgation of the Constitution, whichever is the latter, and that any actions performed such legislation was null and void.

Both parties relied heavily on South African jurisprudence in this matter. The appellants made reference to the case of Executive Council of Western Cape Legislature v. President of the Republic of South Africa 1995(4) SA 877(CC)) from the South African Constitutional Court while the respondents referred to the South African Constitutional Court decision in, Ferreira, Clive v. Levin, Allan and Others (No. 5 of 1995), and MacFoy v. United Africa Co. Ltd [1961] 3 All ER 1169. This brings out the need for our courts, the Supreme Court specifically, to develop some jurisprudence in this area. The court, however, avoided the issue completely. It did not even form part of the issues framed by the court for determination.

 

Conclusion

Where the court is declaring a law invalid or interpreting the law differently from what the public had mistaken it to be and on which they had in good faith regulated their affairs and relationships previously entered into in accordance with the misinterpretation, the court should remain alive to the doctrine of presumption of constitutionality of a statute. The remedy that the court would coin should then flow from this important doctrine. The court should try as much as possible to ensure that the rights and interests acquired as well as obligations arising from the law before it is declared invalid remain undisturbed as much as possible. 

 

The Supreme Court should be bold enough to address these issues substantially to create jurisprudence that would guide the rest of the courts in handling such issues whenever they arise. Where as it is important to appreciate that our constitutional architecture and design closely resembles that of other countries like South Africa, there is need to develop our own in-built jurisprudence that responds to our own unique circumstances.