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|Case Number:||Petition 70 of 2012|
|Parties:||Mike Rubia & Samuel Njunu Mugwe (Suing Personally and on Behalf of Orange Democratic Party-Murang’a County Branch) v Moses Mwangi,Peter Munga & Jimnah Mbaru(Sued Personally and on Behalf of Murang’a County Initiative)|
|Date Delivered:||26 Aug 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Citation:||Mike Rubia & another v Moses Mwangi & 2 others  eKLR|
|Advocates:||Miss Jemtai holding brief for Mr. Njenga for Petitioners|
|Court Division:||Constitutional and Human Rights|
|Advocates:||Miss Jemtai holding brief for Mr. Njenga for Petitioners|
Fundamental rights and freedoms can be enforced by a private person as against another private person
Mike Rubia & another v Moses Mwangi & 2 others
Petition No 70 of 2012
High Court of Kenya at Nairobi
I Lenaola, J
August 26, 2014
Reported by Andrew Halonyere & Valarie Adhiambo
The Respondents had caused to be published in the mass media a message that the Petitioners alleged had the effect of binding the people of Murang'a County to support a political outfit called the PNU Alliance (a political coalition of parties formed before the 2007 general elections). According to the Petitioners, that publication contravened provisions of the Constitution which required that all political parties be of a national nature, ensuring that they were comprised of members from all Counties in the Country.
The Petitioners sought a declaration that the Respondents’ publication was a threat to the Constitution and that it violated the fundamental freedoms of the individual as enshrined in articles 32 (freedom of conscience), 33 (freedom of expression), 36 (freedom of association) and 38 (political rights).
I. Whether a private citizen could enforce fundamental rights and freedoms as against another private person
II. Whether a publication purporting to bind members of a county to support a specific political party violated fundamental freedoms of the individual, namely: the freedoms of conscience, expression, and association; and political rights enshrined under the Constitution of Kenya, 2010
Constitutional law-fundamental rights and freedoms- enforcement of fundamental rights and freedoms- where a private person sought redress for violation of his constitutional rights against another private person- whether a private citizen could enforce fundamental rights and freedoms against another private person - Constitution of Kenya, 2010, articles 2, 20, 22,and 260
Constitutional law-fundamental rights and freedoms - freedom of conscience and belief –freedom of expression-freedom of association-political rights-whether a publication purporting to bind members of a county to support a specific political party violated the fundamental freedoms of expression, association, conscience and belief- whether that publication violated the political rights of an individual -Constitution of Kenya, 2010, articles 32, 33, 36 and 38
1. The Constitution was not a substitute for redress of all injuries especially where a Petitioner had another remedy in law. If that was the case, he ought to have pursued that remedy instead of making constitutional issues of what was really a pure matter of private law, particularly where private law had an adequate remedy.
2. The Constitution in articles 2 and 20 and the definition of the term “person” under article 260 envisaged both vertical and horizontal application of the Bill of Rights; vertical application between the citizen and the State and horizontal application between one citizen and another citizen. There was nothing in the Constitution that drew the distinction between vertical and horizontal application of the Bill of Rights. The Bill of Rights applied to all persons and bound everybody.
3. Article 2 of the Constitution provided that the Constitution was the supreme law of the land and bound all persons and all state organs at both levels of government. Similarly, article 20 provided that, the Bill of Rights applied to all and bound all state organs and all persons. Article 260 further defined a person as to include a company, association or other body of persons whether incorporated or unincorporated. That therefore meant that the Petitioners were entitled under article 22 of the Constitution to institute a claim alleging a violation of the Constitution whether those violations were by a private citizen or the State.
4. The provision in article 32 related to freedom of conscience and to religious beliefs. While interpreting article 9 of the European Convention on Human Rights (similar to article 32 of the Constitution of Kenya), the European Court of Human Rights stated that article 9 protected the right of individuals to hold religious and other beliefs, and to practice them alone or with other people and the right to manifest one's religion or beliefs. It stated that the State was not entitled to assess the legitimacy of the religious views or the way in which they were manifested.
5. Article 18 of the International Covenant on Civil and Political Rights, which was similar to article 32 of the Constitution, had been interpreted by the UN Human Rights Committee as protecting “theistic, non-theistic and atheistic beliefs as well as the right not to profess any religion or belief.” The terms “belief” and “religion” had been broadly construed and article 18 was not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.
6. Adopting the interpretation by the European Convention on Human Rights and the UN Human Rights Committee, the Petitioners’ rights under article 32 of the Constitution had not been violated by the Respondents in publishing the impugned declaration.
7. The Petitioners had failed to understand the normative context of the freedom of expression. The freedom of expression protected the right to seek, receive or impart information or ideas. The Petitioners’ did not claim that they had been denied a platform to express their ideas or opinion so that they could claim a violation of the freedom to express themselves. It was not sufficient for them to have claimed that they did not feel safe to express their political opinions. There was a need to be precise in alleging constitutional violations.
8. The freedom of association provided for the right of every person to form and belong to any association of their choice. The Petitioners did not claim that the Respondents’ declaration had been mandatory, compulsory and binding on all the people of Murang’a County and that as such, everyone, including them, had to belong to the PNU Alliance.
9. Under article 38(1) every citizen had a right to make political choices, which included the right to form and participate in a political party, recruit members for a political party and campaign for a political party. The Respondents’ declaration was not binding on all people of Murang’a County and no one had been forcefully compelled to be a member of any political party, particularly the PNU Alliance. Further, no one had been forcefully made to vote for the PNU Alliance in any election. In any case, a vote was by secret ballot and no one could be compelled to vote for a certain party if they were not interested in it or did not share the manifesto of that party.
10. There was nothing constitutional about the Petition. The Court was being used to settle political scores and it was obvious that petty political rivalries had been elevated to the venerated heights of constitutional issues. The High Court in its status as the interpreter of the Constitution would take a dim view of such actions.
Petition dismissed with costs to 1st and 3rd Respondents.
|History Advocates:||One party or some parties represented|
|Case Outcome:||Petition dismissed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.70 OF 2012
MIKE RUBIA…….…………………………………….………1ST PETITIONER
SAMUEL NJUNU MUGWE (suing personally and on behalf of Orange
Democratic Party-Murang’a County Branch)...........2ND PETITIONER
DR. MOSES MWANGI….....................................…………1ST RESPONDENT
PETER MUNGA………………….…………………………2ND RESPONDENT
JIMNAH MBARU(sued personally and on behalf of Murang’a
County initiative)……...........…………........…....………3rd RESPONDENT
"That the people of Murang'a County will support the PNU Alliance as the vehicle through which we will pursue and achieve the development aspirations and political future of the country and support all efforts to:
It is that message that triggered the present Petition.
The Petitioners’ case
The Respondents’ case
Whether a private citizen can enforce fundamental rights and freedoms as against another private citizen?
“…each case must be looked at in its specific and unique circumstances and that the Court must determine whether there is a constitutional issue raised in the petition that ought to be addressed by the Court under Article 23(1) of the Constitution.”
Similarly in Rapinder Kaur Atwal v Manjit Singh Amrit Petition No. 236 of 2011 I expressed myself as follows;
“All the authorities above, would point to the fact that the Constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes. In this case, the former must be true…..i must add the following; our Bill of Rights is robust. It has been hailed as one of the best in any constitution in the world. Our courts must interpret it with all the liberalism they can marshal. However, not every pain can be addressed through the Bill of Rights and alleged violations thereof”.
“I am clear in my mind that the Constitution in Articles 2 and 20 and the definition of the term “person” under Article 260 envisaged both vertical and horizontal application of the Bill of Rights; vertical application between the citizen and the State and horizontal application between one citizen and another citizen. Article 2 of the Constitution provides that ‘this Constitution is the supreme law of the land and binds all persons and all state organs at both levels of government’. Similarly, Article 20 provides that; ‘The Bill of Rights applies to all and binds all state organs and all persons’. Article 260 has defined a person as ‘including a company, association or other body of persons whether incorporated or unincorporated’. My reading of the above provisions of the Constitution reveals that no person is above the Constitution and every person is bound by the provisions of the Constitution including the Bill of Rights. It therefore means that the Petitioners are entitled under Article 22 of the Constitution to institute a claim alleging a violation of the Constitution whether those violations are by a private citizen or the State.”
Whether there is a violation of the Constitution
"That the people of Murang'a County will support the PNU Alliance as the vehicle through which we will pursue and achieve the development aspirations and political future of the country and support all efforts to
“(1) Every person has the right to freedom of conscience, freedom of conscience, religion, thought, belief and opinion.
(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.
(4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.”
“theistic, non-theistic and atheistic beliefs as well as the right not to profess any religion or belief. The terms belief and religion are broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions - See General Comment 22, para 9.”
I am duly guided and that being the case and applying the above interpretation in the context of the Petition before me, I do not see how the Petitioners’ rights under Article 32 of the Constitution have been violated by the Respondents in publishing the impugned declaration.
Turning to the freedom of expression, Article 33 provides as follows;
“(1) Every person has the right to freedom of expression, which includes—
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
(2)The right to freedom of expression does not extend to—
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or
(ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).
(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”
On the freedom of association, Article 36 provides as follows;
“(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that—
“(1) Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum;
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.”
DATED, DELIVERD AND SIGNED AT NAIROBI THIS 26TH DAY OF AUGUST, 2014
In the presence of:
Kariuki – Court clerk
Miss Jemtai holding brief for Mr. Njenga for Petitioners
No appearance for Respondents
Judgment duly delivered.