Procedure to be followed after the passing of a constitution Amendment Bill by Parliament

David Ndii & others v Attorney General & others [2021] eKLR

Constitutional and Human Rights Division Petition No. E282 of 2020 (Consolidated with Petition Nos. 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416  of 2020, E426 of 2020 and 2 of 2021)

High Court at Nairobi

JM Ngugi, GV Odunga, J Ngaah, EC Mwita & TM Matheka, JJ

March 26, 2021

Reported by Kakai Toili

Constitutional Law - amendment of the constitution - process of amending the Constitution – passing of a constitution Amendment Bill by Parliament - what was the procedure to be followed after the passing of a constitution Amendment Bill by Parliament – Constitution of Kenya, 2010, articles 256(3).

Constitutional Law – remedies - remedies for violations or threat of violation of fundamental rights and freedoms - whether reliefs based on threats of contravention of the Constitution or violation of fundamental rights or freedoms could be denied on the basis that it had not proved that the respondent intended to violate the Constitution or fundamental rights and freedoms – Constitution of Kenya, 2010, article 23.

Civil Practice and Procedure – orders – conservatory orders - at what stage of proceedings before a court could conservatory orders be granted or varied - Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 25.

Brief facts

In its ruling dated February 8, 2021, the instant court issued a conservatory order restraining the Independent Electoral and Boundaries Commission (IEBC) from facilitating and subjecting the Constitution (Amendment) Bill, 2020, (Constitutional Amendment Bill) to a referendum pending the hearing and determination of the consolidated petitions. The court heard the consolidated petitions and reserved the delivery of the judgment on notice. The applicants filed the instant application seeking among others orders that the court vary the conservatory order to include an order against the 1^st and 2^nd interested parties (the Speakers of joint Houses of Parliament) restraining them, upon passing of the Bill from submitting it to the President for assent and publication; and from submitting a certificate that the Bill had been passed by Parliament.

The applicants claimed that by the time the interim orders were issued, the county assemblies, were yet to debate the Constitutional Amendment Bill. However, during the pendency of the consolidated petitions, over forty (40) county assemblies had approved the Bill. The applicants contended that the Bill had been tabled before the joint Houses of Parliament for debate and approval, and that the only remaining task was for Parliament to debate and vote on the impugned Bill.

In the applicants’ view, whereas the conservatory orders only anticipated a scenario where the Constitutional Amendment Bill would be subjected to a referendum, there was a real threat, that by dint of article 256(5) of the Constitution of Kenya, 2010, (Constitution) once the Bill was presented to the President, he could assent to the same if he formed the opinion that the proposed amendments did not relate to the protected clauses under article 255(1) of the Constitution. The applicants were apprehensive that once the President assented to the Bill, it would become part of the Constitution whose legality would automatically be excluded from challenge by or before any court thus rendering the consolidated petitions and the pending judgment nugatory.

Issues

1. What was the procedure to be followed after the passing of a constitution Amendment Bill by Parliament?
2. Whether reliefs based on threats of contravention of the Constitution or violation of fundamental rights or freedoms could be denied on the basis that it had not proved that the respondent intended to violate the Constitution or fundamental rights and freedoms.
3. At what stage of proceedings before a court could conservatory orders be granted or varied?

Held

1. In the court’s ruling of February 8, 2021, the court was of the view that based on the material placed before it, it could not state with certainty that the county assemblies and Parliament would, in arriving at their respective decisions, contravene the constitutional provisions. Accordingly, it would have been speculative to base the court’s decision on the manner in which the county assemblies and Parliament were likely to undertake their constitutional mandate. Whereas the train had left the station in so far as the county assemblies were concerned, as regards Parliament the position remained the same. Accordingly, there was no compelling reason to depart from the court’s earlier findings in so far as Parliament was concerned.
2. If the Constitutional Amendment Bill was to be passed in a referendum, the substratum of the petitions would be substantially altered and the reliefs that the court was being called upon to grant, based on the instant petitions, could well be merely academic. Therefore, while the court declined to interfere with the legislative processes in the county assemblies and Parliament, the court had the power to intervene even at the tail end of the process.
3. Article 256(3) of the Constitution enjoined the Speakers of the two Houses of Parliament, upon the passage of a constitutional Amendment Bill, to jointly submit to the President the Bill, for assent and publication and a certificate that the Bill had been passed by Parliament in accordance with the article 256. There was no other lawful means through which the President could be certain that article 256 had been complied with other than through compliance with article 256(3).
4. Article 2(3) of the Constitution had the effect of insulating the validity or legality of the Constitution from being questioned before a court of law. While the parties were not all agreed as to the effect of the presidential assent, the applicants’ apprehensions were not unfounded: the applicants were simply saying that the view that presidential assent could inoculate the constitutional amendments from legal challenge was a reasonable one which could well prevail hence irrevocably defeating the core of their claims in the consolidated petitions.  It was a risk that they were not willing to take given the implications for the Constitution and the prevailing social contract Kenyans had with the State.
5. A relief based on a threat of contravention of the Constitution or violation of a fundamental right or freedom could not be denied simply on the basis that the supplicant had not proved that the respondent intended to violate the Constitution or fundamental rights and freedoms. As long as a person presented reasonable apprehension based on credible evidence of the likelihood of the impugned action and where the apprehended happening was likely to lead to irreparable or irrevocable consequences if they were to occur, the court could not overlook that apprehension that the Constitution was likely to be violated or that person’s fundamental rights and freedoms were likely to be contravened.
6. The court ought not just twiddle its thumbs or wring its hands and mutter, perhaps breathlessly, that the court was helpless as long as the respondent had not given any indication that he intended to contravene the Constitution or violate the fundamental rights or freedoms of that person. Where it was credibly demonstrated, as had been done in the instant court, whether rightly or wrongly, that the respondent had two options, one of which if taken was likely to lead to the apprehensions coming to reality, it would be better for the court to err on the side of caution.  The case for that course of action was strengthened where, as in the instant case, no serious prejudice other than passage of time was visited on the respondent. That prejudice could be substantially mitigated by the court expeditiously pronouncing itself on the substantive issues before it, a course the court had taken in order to forestall any constitutional anxieties.
7. The court had a solemn and sacred duty to preserve the subject matter of litigation and prevent it from being irrevocably altered in a manner over which there could be no adequate remedy at law, especially where the potential harm to respondents could be minimized or mitigated by an expedited hearing schedule or delivery of judgment. A full-blown trial had already taken place and only a judgment on the merits was awaited.
8. The instant application was not res judicata. Conservatory orders could be applied for or varied at any stage of proceedings as long as the circumstances permitted, that the court’s understanding of rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
9. Prima facie, article 256(4) of the Constitution only expressly dealt with the assent and publication of the Constitutional Amendment Bill. Unlike article 116 of the Constitution which expressly provided for the coming into force of the amendment, article 256(4) was silent on the issue. It could well be that the apparent lacuna was deliberate to give a window of opportunity for any aggrieved person to take the necessary steps to challenge a Constitutional Amendment Bill as assented to before article 2(3) of the Constitution kicked in where, for example, the President purported to assent to a Constitutional Amendment Bill which had not been constitutionally enacted.
10. The parties had submitted their dispute for determination by the court and the matter was pending the delivery of judgment. Parties who had invited the court to adjudicate on a matter which they were disputing over ought not to create a situation whereby the decision to be made by the court would be of no use.
11. Article 23 of the Constitution provided that a court could grant appropriate relief when confronted with rights violations. Under the article 23, the applicant was entitled to appropriate relief which meant an effective remedy, for without effective remedies for breach or threatened breach, the values underlying and the rights entrenched in the Constitution could not properly be upheld or enhanced.
12. The court had the power to intervene at the tail end of the process under scrutiny. According to the applicants, there were two possible tail-ends. The first tail-end was considered by the court in its ruling dated February 8, 2021: that was where the Constitutional Amendment Bill was subjected to a referendum.
13. The invitation by the applicants was for the court to consider the alternative tail-end: that was where the President determined that all the matters canvassed in the Constitutional Amendment Bill were not protected matters under article 255 of the Constitution and that, therefore, they did not need to be sent for a referendum. The invitation was for the court to fashion a conservatory order to cater for that tail-end rather than simply hope that the view taken by the President that no referendum was needed and that a presidential assent did not irrevocably inoculate any constitutional amendment from challenge under article 2(3) of the Constitution would not find favour with the court in a subsequent action.

Application allowed; costs of the application to be in the cause.

Orders:

1. The assent contemplated under article 256(4) of the Constitution, if it were to be given to the Constitutional Amendment Bill, 2020, would not come into force until the determination of the consolidated petitions.
2. For avoidance of doubt, the orders issued on February 8, 2021 remained in force.