East African Court of Justice awards $25000 USD in damages for violation of the right to access to justice by the Kenyan Supreme Court.
December 16, 2020
Martha Wangari Karua v The Attorney General of the Republic of Kenya and Hon. Anne Mumbi Waiguru & Hon. Peter Ndambiri (Interveners)
Reference No 20 of 2019
The East African Court of Justice
First Instance Division
M Mugenyi, C Nyawello, C Nyachae, JJ
November 27, 2020
Reported by Faith Wanjiku & Ian Otenyo
International Law – regional integration – East African Community – organs of the East African Community – the East African Court of Justice – suit challenging the acts and omissions of the Kenyan judicial system at the East African Court of Justice – claim challenging Kenya’s commitments to the fundamental and operational principles of the Treaty for the Establishment of the East African Community, especially the right to access to justice and a fair trial – whether the Kenyan Supreme Court violated the applicant’s right to access to justice as provided by the Kenyan Constitution by dismissing her petition – Treaty for the Establishment of the East African Community, articles 6(d) and 7(2), Constitution of Kenya, article 50, 159 and 259.
Constitutional law – interpretation of provisions of the Constitution of Kenya, 2010 – articles 50, 159 and 259 of the Constitution of Kenya, 2010 – interpreting the Kenyan Constitution in a manner that promoted the purpose and principles therein – where no time was explicitly allotted for the hearing of matters that were remitted – Whether the Kenyan Supreme Court violated the applicant’s right to access to justice as provided by the Kenyan Constitution by dismissing her petition – Constitution of Kenya, article 50, 159 and 259
Constitutional Law – fundamental rights and freedoms – right to fair trial – right of access to justice – claim alleging that the actions of the Supreme Court of Kenya in dismissing the applicant’s electoral petition violated her rights to access to justice and a fair hearing & thereby violating the fundamental principles encapsulated in articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community (the Treaty) – Whether the Kenyan Supreme Court violated the applicant’s right to access to justice as provided by the Kenyan Constitution by dismissing her petition – Constitution of Kenya, article 50, 159 and 259; Treaty for the Establishment of the East African Community, articles 6(d) and 7(2), Constitution of Kenya, article 50, 159 and 259.
The applicant participated in the respondent’s general elections as a gubernatorial candidate for Kirinyaga County and lost to the first Intervener. Dissatisfied with the outcome, the applicant petitioned against the election results at the high court. The petition was dismissed and the applicant successfully appealed to the court of appeal. The appellate court ordered the case to be remitted back to the High Court for determination on merits. The High Court then dismissed the applicant’s petition which the applicant appealed to the Court of Appeal. The Court of Appeal held that the High Court lacked the jurisdiction to entertain the petition after the lapse of the six months period for hearing petitions as prescribed by statute. The applicant approached the respondent’s Supreme Court which upheld the Court of Appeal’s decision. It is from that background that the applicant contended that the respondent’s judicial organs through its acts and or omissions failed to abide by the fundamental principles encapsulated in articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community (the Treaty). The applicant faulted the decision of the Supreme Court of Kenya for its failure to uphold the rule of law and violating her right to access to justice and a fair hearing.
- Whether the reference was time-barred due to the two month limit set under article 30 of the East African Community Treaty.
- Whether the reference raised a cause of action against the respondent.
- Whether the Kenyan Supreme Court violated the applicant’s right to access to justice as provided by the Kenyan Constitution by dismissing her petition.
- Whether the respondent state through the acts and/ or omissions of its judicial organs violated its commitments to the fundamental and operational principles of the EAC Treaty, especially the right to access to justice and a fair trial.
Relevant provisions of the law
Treaty for the Establishment of the East African Community, 2000
Article 6 – Fundamental Principles of the Community
The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include:
a) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;
Article 7 (2) – Operational Principles of the Community
The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice, and the maintenance of universally accepted standards of human rights.
Constitution of Kenya, 2010
Article 50 – Fair hearing
1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
Article 159 – Judicial authority
2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
b) justice shall not be delayed;
d) justice shall be administered without undue regard to procedural technicalities; and
e) the purpose and principles of this Constitution shall be protected and promoted.
Article 259 – Construing this Constitution (1) and (8)
1) This Constitution shall be interpreted in a manner that—
a) promotes its purposes, values and principles.
b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights.
c) permits the development of the law.
d) contributes to good governance.
8) If a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay.
- The instant court had to consider whether to compute time from the date the Kenyan High Court passed its judgment or the time when the Supreme Court passed its judgement. Article 30(2) of the Treaty prescribed a two-month limitation period within which a reference may be instituted in the instant court. The instant court would compute time from the starting date of an act complained of and not the day the act ended which was when the Supreme Court rendered its judgement. As such, the reference was not time barred.
- The reference raised the question of access to justice which the applicant contended was denied by the Supreme Court. The right of access to justice was enshrined under article 30 of the East African Community Treaty and bound all member states of the East African Community. As such, the court affirmed that the reference raised a cause of action against the respondent.
- The respondent’s judicial branch was obliged to interpret the Kenyan Constitution, 2010, in a manner that promoted the purpose and principles of the respondent’s Constitution. Where the respondent’s actions were inconsistent with the local law and a breach of its obligation under the Treaty to observe the principle of the rule of law, it was the instant court’s inescapable duty to consider the internal laws of such partner state in determining whether the conduct complained of amounted to a violation or contravention of the Treaty.
- Section 75(1) of the respondent’s Elections Act granted parties the right to contest alleged electoral malpractices in the High Court of Kenya. It was not in dispute that section 85A of the same Act conferred a right of appeal to the Court of Appeal. On the other hand, article 163(4)(a) of the Constitution of Kenya, 2010, though not conferring a typical second appeal from the Court of Appeal in respect of electoral matters, provided for an appeal to the Supreme Court on matters of constitutional interpretation.
- Whereas section 75(2) of the Elections Act fixed the hearing and determination of election petitions in the High Court to six months from the date of filing, it was silent on whether that time frame included the time spent on appeals from High Court decisions (interlocutory or otherwise), or the time within which cases onremission by an appellate court could be determined. Ordinarily, an election petition brought under section 75(1) should be heard and determined within the six-month period stipulated under section 75(2), and should it go on appeal, it would be determined within the six months delineated in section 85A(1)(b). It should be settled on how local courts ought to approach a matter where the appellate court determined an appeal by remitting it back to the trial court.
- Access to justice meant that citizens were able to use justice institutions to obtain solutions to their common justice problems. For access to justice to exist, justice institutions had to function effectively to provide fair solutions to citizens’ justice problems.
- It was extremely troubling that the Supreme Court held that the Court of Appeal should have decided to terminate the matter before remitting it since it was well aware that any substantive determination of the petition by the High Court would have been an exercise in futility. The apex court clearly suggested that the applicant’s right to be heard and access to justice, including exhausting her right of appeal, were unimportant. It alluded to a recommendation for a court to disregard its duty to administer justice purely because in its estimation, to do so would have been an exercise in futility.
- The matter before the Supreme Court was no longer an electoral matter but a search for a constitutional solution to a legal problem. The Supreme Court would be the judicial organ mandated to provide a fair solution to the identified procedural debacle, where no time was explicitly allotted for the hearing of matters on remission. The Kenyan Constitution, 2010 provided an appropriate legal framework for the solution to the unjust situation the applicant found herself.
- In the promotion of access to justice, human dignity, equity and social justice, any court sitting in interpretation of the Kenyan Constitution, 2010 where a particular time frame was not prescribed by the Constitution, was urged to construe and remedy the lacuna in such a manner as would ensure that justice should be done without unreasonable delay. There was a duty upon the Supreme Court to redress the identified lacuna in the law so as to engender equity and social justice in the adjudication process. That would not have been tantamount to usurping the legislative role of parliament, but rather might be approached on a case by case basis to ensure that Kenyan law was never silent but always speaking.
- The impugned Supreme Court decision fell short on the said judicial organ’s constitutional duty and curtailed the applicant’s right to access to justice. It contravened the rule of law principle enshrined in articles 6(d) and 7(2) of the Treaty.
- An award of USD $ 25,000 to the applicant.
- Simple interest on damages awarded at 6% per annum from the date of the instant judgment until full payment.
- Costs awarded to the applicant.