|Petition 286 of 2009
|LUCY NYAMBURA & ANNE WANGUI v TOWN CLERK, MUNICIPAL COUNCIL OF MOMBASA, COMMISSIONER OF POLICE & ATTORNEY GENERAL
|25 Mar 2011
|High Court at Mombasa
|Jackton Boma Ojwang
|LUCY NYAMBURA & another v TOWN CLERK, MUNICIPAL COUNCIL OF MOMBASA & 2 others  eKLR
|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
IN THE HIGH COURT OF KENYA
(Coram: Ojwang, J.)
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE CONSTITUTION OF KENYA,
to wit, CONTRARY TO SECTION 70, 72 (1) (e), 74, 76, 77, 78, 79, 82
- AND –
The petition coming up before the Court was dated and filed on 4th June, 2009, and it is unsurprising that the legal framework cited is that of the Constitution of 1969 which was, at the time, in force; a new Constitution was promulgated on 27th August, 2010, though it is clear to me that this Constitution builds upon and does not detract from the proclaimed guarantees of fundamental rights and freedoms under the 1969 Constitution..
The petitioners state that the Police officers who arrested them had no search warrant, and had no reason or basis to arrest them; when arrested they were not preparing to commit, nor were they in the process of committing any cognizable offence for which the Police would be entitled to arrest them; the arresting officers were all male, and no female officer was availed to conduct the search upon them, and this contravened their right to treatment with dignity. The petitioners aver that the Police officers who had arrested them, testified in Court on 6th October, 2008 and “expressly told them that the petitioners were in possession of condoms, that they thought there was an offence being committed”, and they state that their “rights to protection under the law” as provided for in the Constitution, were violated.
The petitioners aver that the action of arresting them and charging them in Court was “a direct violation and contradiction of the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) [which Kenya has ratified].” They contend that the arrest and detention in custody aforesaid was discriminatory, oppressive and unconstitutional. They further contend that the bye-laws under which they were charged are unconstitutional, and “actually and potentially violate the rights of women”.
(a) that, a declaration do issue that the Mombasa Municipal Bye-laws, Section 258 (m) actually and potentially violates the rights and dignity of women;
(c) that, a declaration do issue that the said Section 258 (m) of the Mombasa Municipal Bye-laws violates the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW), the African Charter on Human and Peoples’ Rights, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women;
(e) that, an order do issue that the arrest, arraignment and trial of the petitioners in Criminal Case No. 3560 of 2008 at the Mombasa Municipal Council Court, is an abuse of the constitutional right’s of the petitioners and is to be terminated;
(g) that, an order declaring the provisions of Section 258 (m) of the Mombasa Municipal Bye-laws to be illegal, “do bind all local authorities in Kenya”.
Whereas 1st petitioner deponed on the specific experience of the two petitioners, at the material times, the second deponent gave a broader background of Police practice in the Coastal area, in relation to persons such as the petitioners; in this regard the deponent produced a recent study of the Federation of Women Lawyers entitled, Documenting Human Rights Violations of Sex Workers in Kenya: A Report based on the Findings of a Study conducted in Nairobi, Kisumu, Busia, Nanyuki, Mombasa and Malindi Towns in Kenya (Fida Kenya, 2008), 40pp. The deponent deposes that in all the Police stations investigated, “Police officers conduct swoops as early as six o’clock in the evening until the following morning”; these officers
“then detain the women suspected of loitering for immoral purposes”; “the reason for the arrest common to all the Police stations is by observation of how the women dress and talk or walk”; “the officer in command in the morning will then ask each woman to ‘account’ for their being out at the time and place; those who cannot account ‘properly’ are taken to Court.”
“Any person who shall in any street or public place [m] loiter or importune for the purposes of prostitution [n] procure or attempt to procure a female or male for the purpose of prostitution or homosexuality shall be guilty of an offence.”
The deponent described prostitution as a vice, which “aids and abets the spread of …. HIV/AIDS”; and he averred that prostitution does not give fulfilment, “since it is used as a medium for sexual exploitation by perverts and paedophiles”.
“…the Bye-law … is carefully tailored as a measured and appropriate response to the harm it addresses, namely, the evil of prostitution and the inherent dangers it poses in the Municipality of Mombasa and the tragic consequences that it carries with it.”
(i) is Bye-law 258 (m) in contravention of the guarantees of rights in the Constitution?
(iii) what is the meaning of “prostitution”?
(v) what is public morality?
(vii) can the Court enforce treaty law to which Kenya is a party?
(ix) did the circumstances preceding the trial of the petitioners violate their rights and freedoms?
(xi) is the trial of the petitioners in Criminal Case No. 3560 of 2008 a violation of their rights under the Constitution?
Counsel urged that this petition, though brought in the individual names of the petitioners, is “in the spirit of the larger public interest”; and so, “in [the] event … the Court [held] that the petition is misplaced … the petitioners plead that they be not burdened with any order to pay costs”.
Learned counsel sought to rely on certain judicial decisions, in support of his clients’ case; but the essence of his case is founded on just the foregoing arguments, by their own momentum. He urged in particular that Bye-law 258 (m) of the Municipal was contrary to the Constitution, insofar as it accorded privileged treatment to the male gender, while excluding the female gender. Counsel submitted that the arrest and arraignment in Court of the petitioners was wrongful because the arresting offices had not observed any act of prostitution on their part; by Black’s Law Dictionary, 8th edition, “prostitution” means “[the] act or practice of engaging in sexual activity for money or its equivalent.” The argument was that the petitioners were not in the act of prostitution when they were arrested, and their arrest was simply a violation of their freedom of movement, apart from being a discriminatory act.
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or both.”
Learned counsel Mr. Kibara, for 1st respondent, contested the petition, on the ground that the Municipal Council had no Bye-law regarding “loitering for immoral purposes”, and that Bye-law 258 (m) and (n) bore different language; and moreover, this Bye-law “does not discriminate against women or any group of persons … as alleged by the petitioners herein but outlaws the acts set out in the said Bye-law especially if they are committed in a public place.”
“This Bye-law is aimed at prohibiting prostitution and is one that strikes a balance between the rights of the petitioners … and the rights and values of [the] citizenry living within the Municipality … who are also entitled to have their personal guarantees … secured.”
(i) there had to be a proportionality as between the rights said to have been limited, and the benefits of the law in question (p. 699);
(iii) the law and its benefits must outweigh the likely detrimental effects of any infringement of constitutional freedoms (p. 699).
Counsel urged the Court to adopt the foregoing principle, and uphold the Municipal Council’s position that Bye-law 258 (m) and (n) is “justified and reasonable … and does not alienate or erode the petitioners’ constitutional rights.” The said Bye-law, counsel submitted, “does not target women, neither does it discriminate [against] women since the same applies to any person ‘found committing the act of loitering with the sole intention of committing prostitution’.”
“(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including __
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
Counsel submitted that the constitutional rights now being asserted by the petitioners, are not absolute but limited, “where such freedoms could easily harm or threaten vulnerable members of [the] society.” The Bye-law in question, it was urged, “protects the community and, in particular, the vulnerable girl-child who can be lured into child prostitution.” Counsel submitted that the said Bye-law is reasonable and proportionate, having regard to the freedom of movement and [of] expression.”
(i) that Bye-law is “carefully tailored as a measured and appropriate response to the harm it addresses …”;
(iii) the rights-guarantees of the Constitution have permissible restriction;
Learned counsel contested the petitioners’ prayer (d), regarding the advisory obligation of the Attorney-General to various public agencies including the Minister for Local Government and the Municipal Council of Mombasa. It was held in Njoya & Six Others v. Attorney-General & Another  1KLR 232 (Ringera, Kubo JJ. and Kasango Ag. J.) that (p. 234):
Learned Counsel further submitted that the petition had not beenbrought in compliance with The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006; that the petitioners ought to have filed a reference to the High Court, since there were proceedings pending in a subordinate Court.
For 2nd and 3rd respondents, learned counsel, Mr. Muteti made submissions. He urged that there was no basis for impugning Bye-law 258 (m) of the Municipal Council, the spirit of which is to discourage immoral conduct in streets and public places. Counsel submitted from the affidavit evidence, that the said Bye-law is a true reflection of the public opinion; it was made in 2003 after the input of members of the public had been recorded and taken into account. The principle underlying the Bye-law was clear, as counsel submitted:
Counsel urged that Article 24 of Constitution of Kenya, 2010 permits the limitation of fundamental rights and freedoms where such limitation is “reasonable and justifiable in an open and democratic society.” As an element in the democratic context of the Bye-law, counsel urged, the Municipal Council of Mombasa had made a public advertisement of the legislative project in the Daily Nation of Friday, 28th March, 2003 to enable members of the public to express their opinions.
Counsel contested the petitioners’ prayer that the Attorney-General be ordered to advise the Minister for Local Government that Bye-law 258 (m) is unconstitutional: for by the Penal Code (Cap. 63, Laws of Kenya) (Chapter XV) and by the Sexual Offences Act, 2006 (Act No. 3 of 2006), prostitution remains unlawful.
Counsel urged that the petitioners have failed to demonstrate that they were discriminated against, nor that they are likely to be discriminated against: and so they were not entitled to any damages.
In several earlier decisions (for instance: Joseph Kimani Gathungu v. The Attorney-General and the International Criminal Court, Mombasa H.C. Const. Ref. Application No. 12 of 2010; Luka Kitumbi and 8 Others v. Commissioner of Mines & Geology and Another, Mombasa HCCC No. 190 of 2010) it has been noted that the Constitution of Kenya, 2010 has proclaimed certain broad rights. Parties often sense, as is indeed the case in the instant matter, that the broad-based safeguard for fundamental rights is a basis for the constitutional petition as an instant recourse. This may be an item for the agenda or the newly-established Commission for the Implementation of the Constitution (Article 262 of the Constitution; s. 5 of Sixth Schedule to the Constitution). Just as counsel for the respondents have submitted, the petitioners herein preferred to resort to the threshold principles regarding rights-claims, while steering clear of well established entry-point considerations, procedures and details __ matters which, in a proper case, will give fulfilment to the constitutional goals in question: for instance, recourse to judicial review of administrative action; observance of proportionalities between guaranteed rights, and the public interest; statutes and Bye-laws as instruments in the application of constitutional principles; specific integration of principles drawn from international law into the redressive set-up of local law; striking a distinction between advisory roles within the Executive Branch, and specific compliance-actions attached to justiciability in Court; acknowledging trial-Court procedure as a forum for canvassing individual rights; importance of evidence in a particular case, as a basis of safeguard for a litigant’s constitutional rights.
Although the petitioners sought a declaration that the said Bye-law 258 (m) and (n) violates several international conventions, counsel did not address the question whether such a decision fell within the remit of this Court; and without clarity on the question of jurisdiction, it is improper for the Court to make such an order.
The Court declines to make an order that the arrest, arraignment and trial of the petitioners in Criminal Case No. 3560 is an abuse of their constitutional rights and must be terminated.
Parties shall bear their respective costs.
DATED and DELIVERED at MOMBASA this 25th day of March, 2011.
J. B. OJWANG