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Lucien Ikili Rashidi v United Republic of Tanzania

Application No. 009/2015

African Court on Human and Peoples’ Rights

S Ore, P; B Kioko, VP; R B Achour, AV Matusse, S Mengue, M Mukamulisa, T R Chizumila, C Bensaoula, B Tchikaya, S l Anukam, JJ

March 28, 2019

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International Law-law of Treaty- African Charter on Human and Peoples’ Rights- communications- submission within a reasonable period from the time local remedies are exhausted or from the date the Commission was seized of the matter-what constituted a reasonable time for submission of communications-whether the application ought to be dismissed based on failure to file the application within a reasonable time within the context of the instant case after a delay period of one (1) year and twenty-six (26) days- African Charter on Human and Peoples’ Rights, 1981, article 56(6)

International Law- law of Treaty- African Charter on Human and Peoples’ Rights- right to freedom of movement-whether the applicant’s arrest and detention in 2006 at the time he stayed legally in Tanzania constituted a violation of his right to freedom of movement- African Charter on Human and Peoples’ Rights, 1981, article 12(1)

International Law- law of Treaty- African Charter on Human and Peoples’ Rights- right to dignity-whether the anal search performed on the applicant by agents of the respondent state in the presence of his children constituted a violation of his right to dignity- African Charter on Human and Peoples’ Rights, 1981, article 5

International Law- law of Treaty- African Charter on Human and Peoples’ Rights- right to have one’s cause heard- right to be tried within a reasonable time by an impartial court or tribunal-where an applicant had waited for 7 years to be tried-whether the applicant’s allegation that for him to have waited almost seven (7) years before the High Court delivered its judgment in Civil Case No. 118 of 2007 violated his right to be tried within a reasonable time- African Charter on Human and Peoples’ Rights, 1981,article 7 (1) (d)

International Law- law of Treaty- African Charter on Human and Peoples’ Rights- communications-consideration after exhaustion of local remedies- where a remedy could be considered to be available or accessible when it may be used by the applicant without impediment-whether the application ought to be dismissed based on failure to exhaust local remedies by the applicant- African Charter on Human and Peoples’ Rights, 1981, article 56(5)

Brief Facts:

Mr. Lucien Ikili Rashidi, the applicant in the case, was a national of the Democratic Republic of Congo (DRC) who lived in Dar es Salaam, United Republic of Tanzania. He currently lived in Bujumbura, Republic of Burundi. The facts of the case date back from 2006 when the applicant, his wife and children were arrested detained and deported for allegedly residing illegally in Tanzania. After seeking remedies for his arrest and the treatment that ensued which he alleged as follows:

a)  His arrest and detention in 2006 at the time he stayed legally in Tanzania were in violation of his rights to residence and free movement;

b)  the anal search performed on him in the presence of his two (2) sons at the time of detention constituted a violation of his right to dignity; and

c)  the seven (7) year wait before the High court delivered its judgment in Civil Case No. 118 of 2007 involving his illegal stay in Tanzania violated his right to be tried within a reasonable time.

The applicant filed an application before the African Court on Human and Peoples’ Rights (African Court) alleging the violation of his rights to residence and movement, to dignity and to be tried within a reasonable time as provided for in articles 12, 4, 5 and 7 of the African Charter on Human and Peoples’ Rights (African Charter), respectively. The applicant also submitted that such violations ought to be rectified pursuant to article 27(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol).

Issues:

i     Whether the application ought to be dismissed based on failure to file the application within a reasonable time within the meaning of article 56(6) of the Charter and within the context of the instant case after a delay period of one (1) year and twenty-six (26) days.

ii     Whether the applicant’s arrest at the time and in the circumstances recounted earlier constituted a violation of his right to freedom of movement protected by article 12(1) of the Charter.

iii    Whether the anal search performed on the applicant by agents of the respondent state in the presence of his children constituted a violation of his right to dignity guaranteed under article 5 of the Charter.

iv   Whether the applicant’s allegation that for him to have waited almost seven (7) years before the High Court delivered its judgment in Civil Case No. 118 of 2007 violated his right to be tried within a reasonable time.

v    Whether the application ought to be dismissed based on failure to exhaust local remedies.

Relevant Provisions of the Law

African Charter on Human and Peoples’ Rights, 1981

Article 5

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman of degrading punishment and treatment shall be prohibited.

Article 7

1. Every individual shall have the right to have his cause heard. This comprises:

(d) the right to be tried within a reasonable time by an impartial court or tribunal.

Article 12

1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.

Article 56

Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission shall be considered if they:

5. Are sent after exhausting local remedies if any, unless it is obvious that this procedure is unduly prolonged,

6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter,

Held:

1.   The requirement set out in article 56(5) of the African Charter was to exhaust remedies that existed but also were available. In the same case, the court had further held that a remedy could be considered to be available or accessible when it could be used by the applicant without impediment. As such, remedies to be exhausted within the meaning of article 56(5) of the Charter and rule 40(5) of the Rules of Court (Rules) had to be available not only in law but also be made available to the applicant. Where a remedy existed but was not accessible to the applicant, the said remedy would be considered as exhausted. An applicant was only required to exhaust ordinary and judicial remedies within the meaning of article 56(5) of the Charter. The request to the Minister of Home Affairs for a waiver of the notice of prohibited immigrant did not qualify as such a remedy.

2.   In the circumstances of the case, the actual remedy was to appeal against the judgment rendered by the High Court on January 2, 2014 in Civil Case No. 118 of 2007, in implementation of which the relevant authorities issued the notice of prohibited immigrant and proceeded to deport the applicant as recounted above. The fact that neither the Minister of Home Affairs nor the High Court responded to the applicant’s requests made it impossible for him to access the appeal remedy. Though the remedy of the appeal existed, the applicant was unable to utilise it. The situation was compounded by the fact that the applicant was no longer in the territory of the respondent state. Local remedies were deemed to have been exhausted. The respondent state’s objection to the admissibility of the application for lack of exhaustion of local remedies was dismissed.

3.   That a period of more than six (6) months to file the application should be considered as unreasonable was not well-grounded contention. Going by the practice of similar regional human rights instruments, such as the Inter-American Commission and Court and the European Court, six months seemed to be the usual standard. That notwithstanding, each case had to be treated on its own merit. Where there was good and compelling reason why a complainant could not submit his/her complaint for consideration on time, the commission could examine the complaint to ensure fairness and justice.

4.   The African Court had consistently held that the six-month time limit expressly provided for in other international human rights law regimes was not set out in article 56(6) of the Charter, which rather referred to a reasonable time. As a matter of course, the court had thus adopted a case-by-case approach in assessing what constituted a reasonable time within the meaning of article 56(6) of the Charter.

5.   In circumstances where there was uncertainty as to whether the time was reasonable, determining factors could include the applicant’s situation. In the present case, the applicant was deported within a week of the High Court’s judgment and issuance of the notice of prohibited immigrant. He therefore lacked the proximity that was necessary to follow up on his requests to the domestic authorities. The period of one (1) year and twenty­ six (26) days in which the applicant filed the application was reasonable within the meaning of article 56(6) of the Charter and rule 40(6) of the Rules. The respondent state’s objection in respect of the filing of the application within a reasonable time was dismissed.

6.   The applicant no longer wished to pursue his two allegations that agents of the respondent state destroyed his documents and deported him to prevent him from pursuing his cases in domestic courts. The court would therefore not dwell into issues that the applicant himself had dropped. Although the submissions by both parties on whether the applicant was wrongly arrested were framed as alleging the violation of his right to freedom of movement, the preliminary question which arose was that of the applicant’s right to residence. That was due to the fact that, in the instant case, the issue of freedom of movement would only arise after and if it was established that the respondent state breached the applicant’s right to reside in the country.

7.   The determination had to be made as at the time of the applicant’s arrest, which was on June 9, 2006, since he had complained of the arrest as being the act that allegedly violated his rights. Pursuant to the provisions of the Tanzania Immigration Act, to reside legally in the country, a foreigner had to hold a passport together with an express authorisation to stay in the form of a permit or a pass. The applicant did not deny that, at the time of his arrest, he had neither of the above. The fact that the applicant did not hold the documents expressly required in the Act, did not automatically render his stay illegal. A contrary position would amount to a narrow interpretation of the law, which would not be appropriate for a human-rights based determination. A purposive interpretation of the law was further called for where there was a risk of a subsequent action by the respondent state that was likely to have a critical impact on the life of the person involved.

8.   In such circumstances, the determinant should be the reasonable expectation of a certain course of action which was required when an authority or the law had induced in a person, who could be affected by subsequent decisions, a reasonable expectation that he or she would retain the said benefit or would be seen as having obtained the same by law. In the instant matter, at the time of his arrest on June 9, 2006, the applicant held two documents of probative value, those were, a certificate of loss of his passport issued by the Tanzanian Police and an official correspondence from the Embassy of his country to the respondent state confirming that he was in the process of obtaining a new passport. While in possession of those documents, the applicant could legitimately expect that the respondent state would not issue a notice of prohibited immigrant against him because the certificate of loss was meant to replace the documents expressly provided for in the law and was valid, having been issued by the competent authorities.

9.   Reasonable expectation required that when presented with the aforementioned documents, the respondent state’s agents should have conferred with the issuing authorities to ascertain their validity. The documents referred to were issued on June 2 and June 5, 2006 respectively, four (4) days prior to the applicant’s arrest by the respondent state’s immigration officers, that was, on June 9, 2006. The obvious conclusion was that the applicant did not obtain those documents to preempt his arrest.

10. On that specific point, the court’s position was reinforced by the decision of the concerned authorities made on June 16, 2006 to withdraw the illegal residence case filed against the applicant, to release him and his family members, and to allow him to stay in Tanzania to pursue his cases before domestic courts. That demonstrated that the respondent state had alternatives to the issuance of a notice of prohibited immigrant followed by arrest and deportation. The applicant’s arrest in the circumstances of the case constituted a violation of his right to residence and, consequently, of his freedom of movement. The respondent state was in violation of article 12(1) of the African Charter.

11. In assessing generally whether the right to dignity protected by article 5 of the Charter was violated, the African Commission considered three main factors. First, article 5 had no limitation clause. The prohibition of indignity manifested in cruel, inhuman and degrading treatment was thus absolute. Second, the prohibition had to be interpreted to extend to the widest possible protection against abuse, whether physical or mental. Personal suffering and indignity could take various forms and assessment would depend on the circumstances of each case. With respect to body search that bore on the intimacy of the person as arose in the instant matter, the European Court of Human Rights (ECtHR) had held that the fact of prison guards forcing a person to bend over and squat while they undertook a visual inspection of his anus constituted an encroachment on dignity, which exceeded reasonable procedures and amounted to degrading treatment.

12. The Inter-American Commission of Human Rights (IACHR) had taken the view that while restrictive measures might be necessary where threat to security was obvious, a vaginal search was more than a restrictive measure as it involved the invasion of a woman’s body. The IACHR proceeded to set out that lawfulness of a vaginal search or inspection, in a particular case, had to meet a four-part test:

a.  it had to be absolutely necessary to achieve the security objective in the particular case;

b.  there had to not exist an alternative option;

c.   it should be determined by judicial order; and

d.  it had to be carried out by an appropriate health professional.

Of those criteria, those of necessity and availability of alternative options applied in the instant matter. With respect to necessity, the respondent state did not contend that the applicant posed any security threat. The court noted that he was only accused of not being in possession of his passport and a visa to stay in Tanzania. The respondent state’s submission that cavity search was the standard practice upon entry and exit from its prisons could only be read as an admission of degrading treatment in the instant matter. In the light of the wording of relevant provisions of the Charter and case law in reference, the systematic nature of that practice, especially anal search, could not justify its performance.

13. Regarding the availability of alternatives to the anal search, which was conducted on the applicant in the case, the court noted that the objective of preventing the introduction of items such as drugs, money or weapons into prisons was legitimate, as it ensured safety of those in custody. Searching accused persons for such items in that context might thus be acceptable only within strict checks but should never be to the extent of breaching dignity. There surely existed a wide range of alternative means of effectively achieving the same result such as purge, scanning and others.

14. In the instant case, even assuming there was need for anal search, conducting it on a father in the presence of his children certainly added to the applicant’s anguish and humiliation. Such instance inevitably impacted on the applicant’s authority and tarnished his reputation in the eyes of his family. The anal search conducted on the applicant constituted a violation of his right to dignity and not to be subjected to degrading treatment. The respondent state was in violation of article 5 of the Charter. The search performed on the applicant constituted an interference with his physical integrity.  As stipulated under article 4 of the Charter, human beings were inviolable. Every human being would be entitled to respect for the integrity of his person.

15. Full body search had come under thorough scrutiny in human rights case law. Systematic search, especially anal search that was not justified and duly authorised by a judicial authority, constituted a breach of article 3 of the European Convention on Human Rights. The same principle underlined the prohibition in article 4 of the Charter. The breach of physical integrity was also prohibited in international human rights instruments as was the case in article 5 of the Universal Declaration of Human Rights (UDHR), article 7 of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of the United Nations Convention against Torture. The anal search that he was subjected to constituted a violation of his right to the integrity of his person. The respondent state was in violation of article 4 of the Charter.

16. While Civil Case No. 118 of 2007 was filed in September 2007, it was heard only in September 2010 and judgment was delivered on January 2, 2014. Therefore, it took the High Court a period of six (6) years and four (4) months to complete the applicant’s case relating to the legality of his stay in Tanzania.

17. Before making that determination, the court had to consider the respondent state’s contention that the applicant caused part of the delay by amending his initial application in August 2010 and severally requested the recusal of the judges handling the matter. The applicant could not be sanctioned for merely exercising his rights by amending the applications and calling for the judges’ recusals. Second, the respondent state did not provide justification for why the case was not completed between the date of its filing in September 2007 and when the applicant caused the proceedings to start afresh in September 2010, a period of about three (3) years. If the case started afresh in September 2010 as the respondent state submitted, and judgment was delivered on January 2, 2014, it took the High Court six (6) years and four (4) months in total to complete the matter. The court would therefore make its determination on the basis of that timeframe.

18. When it came to assessing reasonable time in the administration of justice, the court had adopted a case-by-case approach, based on several factors, including the respondent state’s behavior, especially the operation of its courts. In the instant matter, the court observed that the respondent state had already arrested and detained the applicant for illegal residence in 2006, which was seven (7) years prior to the 2014 High Court judgment that led to his eventual deportation. The respondent state thus had ample knowledge of the applicant’s status. Furthermore, as reflected in the proceedings, during the June 2006 actions, it took the respondent state only a few days to establish the applicant’s alleged illegal status and deport his family. In such circumstances, the court was of the view that a period of six (6) years and four (4) months to determine whether a person was an illegal immigrant in light of the respondent state’s Immigration Act was inordinately long. The time of six (6) years and four (4) months that it took the High Court to complete the case could not be considered a reasonable period to deliver justice. The respondent state in violation of article 7(1) (d) of the Charter.

19. In line with its case-law, the court considered that for reparations to be awarded, the respondent state should be internationally responsible, there should be a nexus between the wrongful act and the harm, and where it was granted, reparation should cover the full damage suffered. The applicant bore the onus to justify the claims made. The respondent state violated the applicant’s rights to residence and freedom of movement, to integrity, to dignity and to be tried within a reasonable time protected under articles 12(1), 4, 5 and 7(1) (d) of the Charter, respectively. Responsibility and causation had therefore been established. The prayers for reparation were being considered against those findings.

20. The applicant requested for reparations with respect to both material and non-material damages. The applicant’s claims for material damage had to be supported by evidence. The court had also previously held that the purpose of reparations was restituo in integrum, which was to place the victim, as much as possible, in the situation prior to the violation, not richer or poorer.

21. With respect to non-material damage, prejudice was assumed in cases of human rights violations and evaluating the quantum of non-pecuniary damage had to be made in fairness and taking into account the circumstances of the case. The Court had adopted the practice of affording lump sums in such circumstances.

22. The applicant’s claims for reparations were made in different currencies. In that respect, the court was of the view that, taking into account the principle of fairness and considering that the applicant should not be made to bear the fluctuations that were inherent in financial activities, the choice of currency would be made on a case-by-case basis. As a general principle, damages should be awarded, where possible, in the currency in which loss was incurred. Given that, in the present case, the respondent state did not object to the fact that the applicant’s claims were in different currencies, the currency of award would be determined.

23. The applicant’s claims for material prejudice were with respect to the loss incurred due to the suspension of his activites, time lost in proceedings before domestic courts, loss of his artefacts and damage that ensued therefrom, loss of his personal belongings, disruption of his life plan, chronical illness and poor health. Regarding the prayer for compensation due to the loss that allegedly occurred due to the suspension of his trading activities, the applicant claimed that he had suffered material damage to the loss of his business as an exporter and importer of products, which included exporting artwork to Europe and importing vitenge (cotton fabrics) to the DRC. However, the applicant did not support the claim with evidence or prove the existence of the said business, such as a business licence, payment receipts or business contracts. That prayer was consequently dismissed.

24. As to the time lost in proceedings before the High Court, the Court noted that time lost could be proved by adducing evidence as to the financial income that would have been made. In the instant case, loss caused by lengthy court proceedings could also have been evidenced by the payment of legal fees, costs in proceedings and other related costs. The applicant did not provide any such evidence to support his claims. The prayer was therefore dismissed.

25. Regarding the applicant’s prayer for compensation due to the disruption of his life plan, as well as chronic illness and poor health that he suffered, the Court noted that the claim was not supported with evidence. The prayer was consequently dismissed.

26. Violation of the right to dignity was a grave breach that diminished humanity. In the instant matter, the conditions in which the applicant was arrested and the consequences that ensued, especially with respect to his family, were detrimental to his well-being, reputation and honor. However, the amounts claimed by the applicant were excessive. The Court deemed it fair to grant the amount of Tanzania Shillings Ten Million (TZS 10,000,000).

27. Upon the intervention of the DRC Embassy in Dar es Salaam, the respondent state withdrew the case and allowed the applicant to stay for seven (7) years while he agreed to his family leaving the country. It ran contrary to that agreement and good faith to find against the respondent state while it brought the said prosecution to an end to the satisfaction of the applicant. That claim was not substantiated as a consequential violation. The Court therefore declines the request for compensation.

28. Indirect victims had to prove their relation to the applicant to be entitled to damages. Spouses should produce their marriage certificate and life certificate or any other equivalent proof, and children should produce their birth certificate or any other equivalent evidence to show proof of their filiation. In support of that claim, the applicant provided a list, which included the names of his wife and children as earlier reproduced without adducing any of the aforementioned pieces of evidence of relation to the alleged indirect victims.

29. The fact that the applicant had a wife and children at the time of the violations was established. That fact was expressly and consistently acknowleged by the respondent state in its submissions. There was a prima facie relation of the applicant to those alleged victims, and the latter were therefore entitled to reparation if any was granted by the court.

30. The violations established had certainly affected the applicant’s wife and children, more particularly as he was their breadwinner and the degrading treatment suffered was in the presence of some of his children. However, the amount claimed was excessive. In the circumstances and based on equity, the court granted Tanzania Shillings One Million (TZS 1,000,000) to each of the indirect victims.

31. With respect to the prayer for the conviction and sentence to be quashed, and/or the applicant be released, the applicant was arrested on June 9, 2006, charged in court on June 15, 2006 and released on June 16, 2006 without being convicted. The related claims had consequently become moot.

32. Regarding the prayer for compensation in place of restitution, the Court considered that the generally accepted purpose of restitution was to bring ongoing violations to an end and restore the applicant in the state prior to the violations. That remedy was therefore applicable where other measures such as compensation were not relevant or sufficient. Measures ordered to that effect included, for instance, the return of property or nullification of judgments.

33. Reparation would include all the damages suffered by the victim and in particular, included restitution, compensation, rehabilitation of the victim as well as measures deemed appropriate to ensure the non-repetition of the violations, taking into account the circumstance of each case. In the same case, the Court ordered the respondent state to, inter alia, expunge from the applicant’s judicial records, all criminal convictions pronounced against him.

34. In the instant case, the applicant requested for compensation and other forms of reparations for the concerned violations. Given that the prayers for compensation and other forms of reparations had been duly considered earlier and remedies granted where it was deemed proper, the court considered that they were sufficient and an order for the applicant to be placed in the situation before his deportation was not warranted. The prayer was therefore dismissed.

35. Guarantees of non-repetition sought to address systemic and structural violations rather than to remedy individual harm. The Court had however further held that non-repetition would be relevant in individual cases where the violation would not cease or was likely to occur again. In the instant case, non-repetition was not warranted in the circumstances given that the applicant and his family were no longer living in the territory of the respondent state and the orders sought did not include their return. As such, the likelihood of a fresh deportation and repetition of the violations found in the judgment was non-existent.

36. In its response to the application, the respondent state submitted that cavity searches were security measures performed upon entry and exit of most prisons in the respondent state. In light of that submission, the Court considered that the violation found with respect to the applicant had the potential for wider or structural violations, and therefore held that an order for non-repetition was warranted in that respect. The respondent state was to take all necessary measures to ensure that anal search as in the instant case and its kind, were conducted in strict compliance with its international obligations and principles earlier set out in the findings of the court on the violation of the right to dignity.

37. Even though a judgment in favor of the applicant, per se, could constitute a sufficient form of reparation for moral damages, such measure could also be ordered where the circumstances of the case so required. The violation of the right to dignity was established beyond the individual case of the applicant and was illustrative of a systemic practice. The court’s findings in the judgment bore on several rights protected in the Charter, which were those to the integrity of the person, dignity, residence and movement as well as to be tried within a reasonable time.

38. As a consequence of the foregoing, the Court found that the prayer for the judgment to be published was warranted, however with a variation from the applicant’s request in order to enhance public awareness. The Court therefore granted the prayer that the Judgment be published on the websites of the Judiciary and the Ministry for Constitutional and Legal Affairs, and remained accessible for at least one (1) year after the date of publication.

39. Reparation could include payment of legal fees and other expenses incurred in the course of international proceedings. The applicant had to provide justification for the amounts claimed. The applicant was duly represented by PALU throughout the proceedings under the Court’s legal aid scheme. Given that the legal aid arrangement was pro bono in nature, the court declined to grant the prayer.

40. The applicant also sought compensation for other costs incurred pertaining to the case, including the payment of: US Dollars Two Hundred ($ 200) for postage, US Dollars Two Hundred ($ 200) for printing and photocopying, and US Dollars One Hundred ($ 100) for communication costs. Those claims were not backed with supporting documents. The related prayer was therefore dismissed.

Application partly allowed; each party would bear its own costs.

Orders:

i     The applicant was granted the sum of Tanzania Shillings Ten Million (TZS 10,000,000), free from taxes, for the moral damage that ensued from the anal search conducted on him, particularly in the presence of his family members, and which resulted in the violation of his rights to the integrity of his person and dignity as well as damage to his reputation and honour;

ii    The applicant’s wife and children were granted the sum of Tanzania Shillings One Million (TZS 1,000,000) each, free from taxes, for the moral damage suffered;

iii   The respondent state was ordered to pay the amounts under the above sub­ paragraphs within six (6) months, effective from the date of notification of the judgment, failing which it would pay interest on arrears calculated on the basis of the applicable rate of the Central Bank of Tanzania throughout the period of delayed payment and until the accrued amount was fully paid.

iv   The respondent state was ordered to take all necessary measures to ensure that anal search as in the instant case and its kind were conducted, if at all, in strict compliance with its international obligations and principles earlier set out in the present judgment;

v    The respondent state was ordered to publish the judgment, within a period of three (3) months from the date of notification, on the websites of the Judiciary and the Ministry for Constitutional and Legal Affairs, and ensure that the text of the judgment was accessible for at least one (1) year after the date of publication,

vi   The respondent state was ordered to submit to it within six (6) months from the date of notification of the judgment, a report on the status of implementation of the decision set forth therein.

Relevance to the Kenyan Situation

The Constitution of Kenya, 2010 provides for the Bill of Rights in chapter 4 which include the right to human dignity under article 28, freedom of movement and residence under article 39 and right to fair hearing which includes right to have the trial begin and conclude without unreasonable delay under article 50.

Under article 23 the courts have the authority to enforce the Bill of Rights and grant appropriate reliefs where rights have been violated which include compensation, declaration of invalidity of laws infringing on the rights, conservatory orders and declaration of rights.

In M W K & another v Attorney General & 3 others [2017] eKLR it was held that all courts, including the High Court, are enjoined by the Constitution to uphold the rights of all, to ensure compliance with constitutional values, and to do so by granting ‘appropriate relief’, ‘just and equitable orders’, and by developing the common law ‘taking into account the interests of justice’. In a constitutional democracy such as ours, courts have to devise means of protecting and enforcing fundamental rights.

The courts have dismissed constitutional petitions for want of specifity, and this is a precedent set in Anarita Karimi Njeru v Republic [1979]eKLR where it was held that when a person files a petition alleging a violation of right he must state with specificity the right so violated, the clause of the constitution on which he relies and the manner in which that right has been violated. An example of a case that has followed this precedent and dismissed a petition is Jacob Michubu Kiramburi v John Mithea M’ethangatha – Chairman Akirangondu Njuri Ncheke & 2 others [2018] eKLR where the court found that not even one paragraph of the petitioner’s petition bore any clause of the constitution and was thus found to be irregular.

Where fundamental rights are infringed, the courts play a crucial role in giving content and meaning to the fundamental rights enshrined in the Bill of Rights and are thus the guardians. They thus have an obligation to remedy any proven violation of these fundamental rights and freedoms.

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