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The Constitution of Kenya 2010 and Judicial Review: Why the Odumbe Case Would be Decided Differently Today

THE CONSTITUTION OF KENYA 2010 AND JUDICIAL REVIEW: WHY THE ODUMBE CASE WOULD BE DECIDED DIFFERENTLY TODAY

*Ochiel J Dudley

Introduction

The recent appearance of Maurice Odumbe, Kenya’s cricket legend, on the Television Show Jeff Koinange Live (#JKL) has renewed the interest of the public in his plight. In an investigation authorized by the International Cricket Committee (ICC) and conducted by the Kenya Cricket Association (KCA), Odumbe was ‘found’ guilty of having ‘inappropriate conduct’ with a bookmaker and banned from the game for five years. Odumbe applied for judicial review in an attempt to salvage his career from the lengthy ban.The High Court of Kenya declined his application, reasoning that in disciplining Odumbe, they (ICC and KCA) had not performed any duty of a public nature nor were the consequences of the performance of their duty of a public nature. That the respondent’s source of power, nature of duty and its impact did not amount to performance of public functions.This brief article however examines the change in the law of judicial review since his application for judicial review was dismissed by the High Court of Kenya in Republic v Kenya Cricket Association ex parte Maurice Odumbe [2006]eKLR.

The Meaning and Origin of Judicial Review

Literally the concept of judicial review means revision of the decree or sentence of an inferior court by a superior court. However, judicial review has a more technical significance in public law, founded on the concept of limited government. In this case, judicial review means that Courts of law have the power to test the validity of legislative as well as other governmental action with reference to the provisions of the constitution.

One theoretical foundation of judicial review is from the British legal system which we have largely inherited, the courts’ judicial review jurisdiction is justified by the notion that this procedure merely enforces the will of Parliament, by ensuring that public bodies do not exceed the powers given to them by the legislature. This theory (‘ultra vires’) elevates the power of Parliament over the judiciary. Ultra vires has been described as ‘the juristic basis of judicial review[1]

The other foundation of judicial review is based upon the role of the court as the guardian of the rule of law. In [2]although there is no express provision in the American Constitution for judicial review, the Supreme Court made it clear that it had the power of judicial review. This duty and jurisdiction of the Judiciary is memorably etched in the words of Marshall J in, “It is, emphatically, the province and duty of the judicial department to say what the law is”.

Judicial Review Under the Constitution of Kenya 2010

Prior to the promulgation of the Constitution of Kenya, 2010 judicial review took place along the common law grounds mainly derived from the British legal system such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice. The Constitution of Kenya has however now given the judiciary the broad jurisdiction to rule on the constitutionality of legislative and administrative actions through the power of Judicial Review. The High Court has jurisdiction, under Article 23(1), 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. Thereafter the court is empowered—

“In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review.”

The phrase in Article 23(3) to “grant appropriate relief, including” has been the subject of interpretation in Nancy Makokha Baraza v Judicial Service Commission & 9 Others [2012]eKLR where the Court expressed itself as follows: “The New Constitution gives the court wide and unrestricted powers which are inclusive rather than exclusive and therefore allows the court to make appropriate orders and grant remedies as the situation demands and as the need arises.” Rationally, in a claim of violation of the constitution, the court has sufficient power to grant any appropriate remedy including an order of judicial review.

Again, Article 47 of the constitution provides:
“47. Fair administrative action

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.”

The jurisdiction under Article 23 is to be exercised in accordance with Article 165 which is a comprehensive catalogue on the jurisdiction ambit of the High Court—
“3. Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

The Supreme Court of Kenya in Communications Commission of Kenya v Royal Media Services [2014]eKLR recognized that the principle of judicial review , and at the same time the key place of the courts in upholding of the Constitution, is enshrined in our Constitution (Articles 23(3)(d) and 165(3)(d)). The court held that whereas the American Court in Marbury declared its power to review the constitutionality of laws passed by Congress, by contrast, the power of judicial review in Kenya is found in the Constitution.[3]

Again in Martin Nyaga Wambora v Speaker of the Senate [2014]eKLR the High Court held that “it is clear that they -Articles 47 and 50(1)- have elevated the rules of natural Justice and the duty to act fairly when making administrative, Judicial or quasi Judicial decisions into constitutional rights capable of enforcement by an aggrieved party in appropriate cases.”[4] The Court was saying that the twin notions of natural Justice embodying the duty to act fairly: that “no man shall be a Judge in his own cause” (Nemo Judex in causa sua) and that “no man shall be condemned unheard” (audi alteram partem) are now cardinal constitutional principles and merely common law derivatives.

Hence the concept of judicial review before Kenyan courts has evolved from a common law foundation to a constitutional principle with five major dimensions – fairness in administrative action under Article 47; protection of the constitutionally guaranteed fundamental rights and freedoms in the Bill of Rights; judicial review of the decisions of tribunals appointed under the Constitution to consider the removal of a person from office; jurisdiction on questions of legislative competence and the interpretation of the constitution; supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function (See Article 165(6)).

In express terms, the Constitution grants to the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. The test for efficacy of judicial review therefore is now whether the person, body, or authority exercises a judicial or quasi-judicial function and no longer whether the exercise of power is private or public. If private bodies engage in quasi-judicial functions, they are amenable to judicial review. Pure and simple.

The term “quasi-judicial” which is wide enough to cover the activities of private bodies like ICC and KCA, against whom Odumbe sought judicial review,  means:

1. having a partly judicial character by possession of the right to hold hearings on and conduct investigations into disputed claims and alleged infractions of rules and regulations and to make decisions in the general manner of courts
2 . essentially judicial in character but not within the judicial power or function especially as constitutionally defined”[5]

Kenyan courts must realize the falsehood of the myth that there is any more a conceptual distinction between private bodies and public bodies in actions for judicial review based on quasi-judicial functions. This is because judicial review is available as relief to a claim of violation of the rights and freedoms guaranteed in the constitution especially under Article 47. The constitution has expressly granted the High Court jurisdiction over any person, body or authority exercising a quasi-judicial function. The point of focus is no longer whether the function was public or private but whether the function was judicial or quasi-judicial and affected constitutional rights including the right to fair administrative action in Article 47, or the right to natural justice in Article 50.

Indeed the eminent Kenyan Professor James Thuo Gathii’s has posed the warning in “The Incomplete Transformation of Judicial Review” that:

“The Kenyan judiciary must guard against the development of a two-tracked system of judicial review. One that looks like the old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles of judicial review [on the other]. Those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.”

The Supreme Court has heeded the warning and recognized that the power of any judicial review is now found the constitution. The recent case of CCK v Royal Media Services Ltd [2014]eKLR painted the clearest picture of the evolved nature of judicial review in Kenya. In that case, the Supreme Court held that the power of judicial review in Kenya is found in the Constitution, as opposed to the principle of the possibility of judicial review of legislation established in Marbury v Madison 5 U.S. 137 (1803). The Court cited Articles 23(3)(d) and 165(3)(d)) cited above.

In the same CCK Case Rawal DCJ writes a concurring opinion at paragraphs 403-404 chiefly to illuminate the entrenchment of a duty to act fairly in Article 47 of the Constitution. She notes, “Although this doctrine (of legitimate expectation) emanates from common law, the Constitution has entrenched the right of fair administrative action under Article 47 of the Constitution”.

The concept of judicial review under the Constitution of Kenya is similar to that under the Constitution of South Africa where it has been held in Pharmaceutical Manufacturers Association of South Africa in re ex parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) at 33, that “[t]he common law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution and, insofar as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts”. The court went further to say that there are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. Rather, there was only one system of law shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

As can be seen, the entrenchment of the power of judicial review, as a constitutional principle should of necessity expand the scope of the remedy. Private parties, like Odumbe, who were once denied judicial review on the basis of the public-private power dichotomy, should now access judicial review if the person, body or authority against whom it is claimed exercised a quasi-judicial function. An order of judicial review is one of the reliefs for violation of fundamentals rights and freedoms under Article 23(3)(f). On this basis alone, Odumbe’s application to the High Court for judicial review should now be acceptable.

The High Court is yet to give a judgment clearly outlining the constitutional basis for judicial review or to grant judicial review on the basis of “unconstitutionality”. However some of its judgments have began to show strands of the recognition of the Constitution as the basis of judicial review.

In the case of Republic v Kenya Association of Music Producers (KAMP) & 3 others Ex- Parte Pubs, Entertainment and Restaurants Association of Kenya (PERAK) [2014]eKLR the Court held that the applicant who described itself as a welfare society registered under section 10 of the Societies Act Cap 108 Laws of Kenya with membership throughout the Republic of Kenya had, under the Constitution, locus to institute judicial review proceedings if the Respondents’ actions or inactions had adversely affected them or were likely to adversely affect them. The court however reverted to the old argument that private bodies are not amenable to judicial review, without inquiring whether the Respondent carried out a “quasi-judicial function” capable of adversely affecting the rights of the applicant. The applicant was denied judicial review on that basis, per incuriam.

Also, Odunga J has recently recognized that “Judicial review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision.” (emphasis supplied) in Republic v Commissioner of Customs Services Ex parte Imperial Bank Limited [2015]eKLR. However, no court, apart from the Supreme Court has fully explored and developed the concept of judicial review in Kenya as a constitutional supervision of power. The time is ripe for the Constitutional and Human Rights Division of the High Court to develop the law on this front. All decisions of the Supreme Court, including that on the constitutional foundation of judicial review espoused in the CCK case are binding upon the High Court. The court must develop its judicial review jurisprudence alongside the mainstreamed “theory of a wholistic interpretation of the Constitution”.

Migai Aketch argues in The Maurice Odumbe Investigation and Judicial Review of the Power of International Sports Organisations[6], the High Court decision in the Odumbe case was at odds with the (then) emerging progressive view that the dispositive factor, in judicial review, should not be whether power is public but that irrespective of its source it (power) is capable of adversely affecting the rights of individuals. And if it is capable of doing so then it ought to be subject to the requirement of considerate decision making. That progressive view has since found its way to Kenyan courts with the passage of the Constitution on 27 August 2010, some four years after the Odumbe case was decided.

Judicial Review, the Common Law and the Constitution of Kenya 2010

The High Court has continued to grant or deny judicial review strictly on the basis of precedents developed under the common law permitting judicial review on the basis of public-private power dichotomy. In the CCK [7]case the Supreme Court cautioned that unthinking deference to cannons of interpreting rules of common law, statutes, and foreign cases can subvert the theory of interpreting the constitution. This caution was repeated in Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy [2014]eKLR that “…the Constitution should be interpreted in a holistic manner; that the country’s history has to be taken into consideration; and that a stereotyped recourse to the interpretive rules of the common law, statutes or foreign cases, can subvert requisite approaches to the interpretation of the Constitution”[8]

At the same time, Kwasi Prempeh in Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa[9] has noted that the application of the common law’s doctrinal traditions, philosophic underpinnings, and styles of reasoning and interpretation as the default rules and norms for framing and analyzing of even constitutional questions. The common law, in its method, substance, and philosophical underpinnings, carries with it elements and tendencies that do not accord with the transformative vision reflected in modern bills of rights. Much of the problem, he notes, stems from the basic constitutional and jurisprudential paradigm upon which English common law is built, namely Austinian positivism and Diceyian parliamentary sovereignty, notions which are incompatible with the transformative ideals of the Constitution of Kenya, 2010. For one the “theory of a holistic interpretation of the constitution” trumps the literal and mechanical approaches of English jurists[10].

Besides, Kenya has transformed from a parliamentary sovereignty into a constitutional democracy where the Constitution, and not Parliament, is supreme as seen in Article 2. In the Division of Revenue Case, Speaker of the Senate v Attorney General [2013]eKLR the Supreme Court held that “…Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of Parliamentary supremacy does not commend itself to nascent democracies such as ours”.

That finding was cited in the subsequent case of Judicial Service Commission v Speaker of the National Assembly [2014]eKLR where the High Court explained that “…We have entered a new constitutional era in which it is the Constitution which is supreme; in which none of the arms of government can claim supremacy; and which vests the High Court with the onerous responsibility of being the watchdog for the new Constitution. It is in this light that we must view the question of separation of powers and the rule of law against the orders issued by the Court in this matter.”

What this means is that judicial review in Kenya cannot continue on the notion that it is an exercise in the protection of the will of a sovereign parliament, where the Constitution, and not parliament, is supreme. The British traditional Diceyian approach to judicial review, based exclusively on the British doctrine of parliamentary sovereignty must therefore be treated with caution. Judges cannot afford to routinely cite common-law cases to deny or grant judicial review on the basis of the public-private dichotomy.

Moreover, the incompatibility of the common law with transformative constitutional-ism has also been the concern of Davis and Klare in Transformative Constitutionalism and the Common and Customary Law[11] where they express the apprehension that, the inbred formalism of the legal culture and the absence of a well-developed tradition of critical jurisprudence in may stultify efforts to renovate the legal infrastructure in the way envisaged by the Constitution. They express the basic assumption underlying transformative constitutions: that the nation can not progress to social justice with a legal system that rigs a transformative constitutional superstructure onto a common law base inherited from the past.[12] They therefore propose a “transformative methodology” informed by the Bill of Rights and specifically by the constitutional aspiration to lay the legal foundation of a just, democratic and egalitarian social order. The transformative methodology would take a context-sensitive view of the case from the perspective of all pertinent ethical and socio-economic considerations[13].

Under the Constitution of Kenya, 2010 judicial review orders, in our view, are applicable against any private person, body or authority who exercises a judicial or quasi-judicial functions by which a right or fundamental freedom of a person has been or is likely to be adversely affected.

Consequently, the insistence of the High Court on the outdated common law “public-private” notion of power in judicial review cases, is likely to subvert the theory of the interpretation of the constitution and stultify the transformative ideals of the Constitution. It is also apt to resound Prof Gathii’s warning at this point, that the judiciary must be wary of creating two tracks of judicial review with one line of cases seemingly decided under the common-law principles and another line of cases decided under the constitution of Kenya’s principle of judicial review.

What rightly lies behind the thesis in this paper is the realization that the classification of functions as public or private will lead to difficulties because endowing some cases with procedural protection, derived from Article 47, while denying others any at all would work injustice. This is especially so when the results of those decisions raise the same serious consequences for those whose rights and freedoms are adversely affected, regardless of the classification of the function in question. It would be an absurd proposal to say that where for example Article 47 has been breached: by a public body against A and a private person against B, where both situations involve the exercise of a quasi-judicial function, that A should obtain judicial review while B should not.

Conclusion

The traditional jurisprudence of judicial review restricted the ambit of judicial supervision of procedures to situations where the functions classified as “judicial or quasi-judicial” had been performed by “a public authority”. Presently, Article 165(6) gives the High Court the powers of judicial review over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function.

Judicial review is no longer a common law prerogative directed purely at public bodies to enforce the will of Parliament, but is now a constitutional principle to safeguard the constitutional principles, values and purposes. The judicial review powers that were previously regulated by the common law under the prerogative and the principles developed by the courts to control the exercise of public power are now regulated by the Constitution. Is it conceivable that the traditional practice of judicial review as the exercise of the will of a supreme parliament can remain the same whereas Kenya’s legal system has transformed from a parliamentary sovereignty into a constitutional supremacy? The Constitution of Kenya, 2010 has rendered the Odumbe case bad law on the point that private bodies are not amenable to judicial review. The Odumbe Case would not be decided the same way today

*The writer is an Advocate of the High Court of Kenya and a Legal Researcher at Kenya Law.

Reference

[1] Wade & Forsyth, Administrative Law, 10th Ed, 2009, p3
[2](1803) 1 Cranch 137 at 177; 5 US 87 at 111
[3]CCK v Royal Media Services [2014]eKLR at 359
[4]151
[5] Meriam Webster Dictionary Online last accessed from http://www.merriam-webster.com/dictionary/quasi-judicial
[6] 6 ESLJ (2008) at 4
[7] Ibid at 357-358
[8] at 206
[9] Vol. 80:1 Tulane Law Review 2006 at pp 72
[10] at para. 26
[11] (2010) 26 SAJHR at 405
[12] Ibid at 411
[13] Ibid at 412

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