By Kelvin Njuguna Mugwe
The promulgation of Kenyan Constitution 2010 ushered in novel provisions dealing with human rights. In their wisdom, the drafters of the Constitution correctly viewed the Bill of Rights as the fourth in priority given the unmatched ramifications if the same are disregarded.
Chapter Four of the Constitution enumerates, in utmost precision and clarity, a plethora of fundamental rights and freedoms. The Bill of Rights, which has been referred in some quarters as the most progressive in the world, retains most of the rights existing in the independence constitution under Chapter Five. However, salient inclusions are also incorporated, one of them being the introduction of socio-economic rights that were absent in the previous constitution, which has paid emphasis on civil and political rights. It would be dishonesty of the greatest order for one to deny that Chapter Four of the constitution is rightly progressive, commendable and offers lots of hope to the Kenyan people.
However, all this is on paper. Implementation of the chapter is where the rubber meets the road. The progressive nature of the rights exposes them to relentless attempts of infringement and curtailing by would-be implementers, who desire and desperately yearn for maintenance of status quo. However, a raft of provisions that curb the hesitance or complete lack of implementation of human rights do exist, and this fact insulates Kenyans from massive violations of their rights and freedoms. This piece will seek to interrogate enforcement mechanisms of human rights in Kenya, with special emphasis on the jurisdiction of different courts.
A cursory reading of the Constitution would lead one to conclude that the High Court is vested solely with the jurisdiction to hear and determine cases on human rights. This position is not far-fetched but is also misleading. It is of importance to note that by dint of Section 165(3)(b), the High Court has jurisdiction to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. It is thus not in dispute that the High Court has jurisdiction over human rights matters; but the same jurisdiction is enjoyed by other courts mutatis mutandis.
Article 23(1) of the Constitution provides that the High Court has jurisdiction to hear and determine cases dealing with infringement of, or threat to, a right or fundamental freedom in the Bill of Rights in accordance with Article 165 read wholly (emphasis added). It is therefore imperative that all the relevant provisions of Article 165, and not Article 165(3)(b) only, should be considered in determining the jurisdiction of courts.
Exclusions
In this light, Article 165(5) deserves concise attention and interpretation. It provides that the High Court shall not have jurisdiction in respect of matters (a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution (b) falling within the jurisdiction of the courts contemplated in Article 162(2). The High Court’s jurisdiction is thus limited by these two provisions, which, in turn, have the effect of granting jurisdiction on other courts.
The first exclusion precisely limits the High Court’s jurisdiction to matters that are to be dealt with by the Supreme Court of Kenya. The need for the Supreme Court to exercise jurisdiction over human rights arises under Article 58. This Article deals with the declaration of a state of emergence and falls within the ambit of Chapter Four. Article 58(5) provides that the Supreme Court may decide the validity of (a) a declaration of a state of emergency (b) any extension of a declaration of a state of emergency, and (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency. The Supreme Court is conferred with jurisdiction to determine matters dealing with human rights as a consequence of the foregoing.
The second exclusion of the High Court’s jurisdiction arises under Article 162(2) of the Constitution. The Article provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to (a) employment and labour relations (b) the environment and the use and occupation of, and title to, land.
The Employment and Labour Court was created pursuant to the renaming of the Industrial Court by the Statute Law (Miscellaneous Amendments) Act, 2014, published in the special Gazette Supplement No. 160 (Acts No.18) of November 24, 2014. The Court deals with disputes relating to or arising out of employment between an employer and an employee, disputes between an employer and a trade union, disputes between an employer’s organisation and a trade union, and disputes between trade unions, among others. The matters enumerated above are dealt with under Article 41 of the Constitution which deals with labour relations. The court that has jurisdiction to enforce labour relations would therefore be the Employment and Labour Relations Court.
Matters under Article 42
Article 162(2)(b) provides for the establishment of a court dealing with environment and land issues. This provision was faithfully implemented and the Environment and Land Court was born pursuant to Section 4 of the Environment and Land Court Act No. 19 of 2011. The court can therefore deal with cases arising under Article 42 of the Constitution. The Article provides that every person has the right to a clean and healthy environment, which includes having obligations relating to environment fulfilled. Also, the court has jurisdiction over matters dealt with under Article 40(1), which provides that every person has the right, individually or in association with others, to acquire and own property subject to Article 65 on ownership of property by non-citizens.
The jurisdiction of courts to hear and determine violation of human rights is not limited to the courts stated above. Article 23(2) of the Constitution confers the subordinate courts with jurisdiction over denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights by asserting that Parliament should enact legislation to give original jurisdiction in appropriate cases to such courts. The Magistrates Act 2015 is a clear manifestation of this provision. The Act under Section 8 states that subject to Article 165 (3) (b) of the Constitution and the pecuniary limitations, a magistrate’s court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
Section 8(2) states such an application shall only relate to the rights guaranteed in Article 25 (a) and (b) of the Constitution. These provisions deal with freedom from torture and cruel, inhuman or degrading treatment or punishment as well as freedom from slavery and servitude, which may not be limited at any instance. The Magistrate Court’s jurisdiction further expands to matters touching on environment by dint of section 9 of the Act. The section provides that hear and determine claims relating to (i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (ii) compulsory acquisition of land; (iii) land administration and management; (iv) public, private and community land and contracts, chores in action or other instruments granting any enforceable interests in land; and (v) environment and land generally.
In addition, section 9(2) expands its jurisdiction to labour matters. However, The Magistrate’s Court can only exercise jurisdiction over environment, land and labour matters upon satisfying itself that it has pecuniary jurisdiction to hear and determine such matters.
The enforcement of the Bill of Rights is therefore not expected to run into jurisdiction hurdles so long as there is adherence to the provisions enunciated in this piece. All the courts mentioned in this article do enjoy original jurisdiction to hear and determine issues relating to the Bill of Rights albeit under different specific circumstances.
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