Role And Responsibility Of The Courts Under The Constitution Of Kenya, 2010
By The Hon. Mr. Justice Alnashir Visram,
Judge of the Court of Appeal of Kenya
In a democratic society as envisioned by Thomas Hobbes, where the governed relinquish a portion of their autonomy (social contract), the legal system is the guardian against abuses by those in positions of power. Citizens agree to limitations on their freedom in exchange for peaceful coexistence, and they expect that when conflicts between citizens or between the State and citizens arise, there is a place that is independent from undue influence, that is trustworthy, and that has authority over all the parties to solve the disputes peacefully. The Courts in any democratic system are that place of refuge.
Although the Judiciary is primarily charged with ensuring the fair and effective administration of justice, it also, in accordance with the doctrine of the separation of powers, provides a safeguard against the abuse of power by the Executive, and, in certain circumstances, the Legislature. Furthermore, it serves an indispensable role in the protection of fundamental human rights.
The new Constitution gives the Judiciary an extensive mandate against the renewed aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. The word Judiciary is stated 37 times in the new Constitution, the words ?Court' and ?Courts' are stated 136 times. This high number illustrates the critical role and the responsibility bestowed upon the Judiciary and by extension the courts in implementing the aspirations of the citizens of Kenya.
Right from Article 1 to the last Schedule of the Constitution, the Courts' renewed role is apparent. For the first time the Constitution clearly vests the sovereign power of the people in the Judiciary along with the other two arms of government.(1)
Glancing Back: The Judiciary under the repealed Constitution
Although legislative power was vested in the Legislature by section 30 of the repealed Constitution of Kenya, and executive power was vested in the President by dint of section 23 of the repealed Constitution of Kenya, the same did not explicitly vest the judicial power in the Judiciary.
The structural separations in the Constitution implied the vesting of judicial power in the Judiciary, but the lack of a direct provision to that effect theoretically could have enabled the Legislature or Executive to usurp the exercise of that power. It was then possible to establish a separate branch of courts, directly under the control of the other arms of government, to exercise judicial power in particular cases or in general.
It would suffice to say that under the old Constitutional dispensation the Judiciary was not independent and equal arm of government. There are two types of judicial independence - institutional independence and decisional independence. Institutional independence means that the Judicial branch is independent from the Executive and Legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions. This paper is alluding to the former.
The Court in the Canadian case The Provincial Judges Reference   3 SCR, emphasized that the role of institutional independence had become expected of provincial courts due to their increased role in dispute resolution in the country. As a previous judicial independence case, institutional independence was needed so that courts could guard the Constitution, the rule of law and fundamental justice. This required more separation of powers; whereas judicial independence had normally been understood to protect the Judiciary from the Executive, the Court now found the Judiciary should be free of manipulation from the legislative branch. On that note the court recommended the formation of the Judicial Salary Commission, to guard against manipulation by both the Executive and Legislature.
The shortcomings of the old order have been cured with the passing of the Constitution of Kenya, 2010. Article 159 provides that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. Judicial independence is entrenched by Article 160. Further, Article 173 establishes the Judiciary Fund which shall exclusively be used for judicial operations.
Chapter 10 of the new Constitution gives elaborate provisions relating to the Judiciary. Of note are the Articles that relate to the principles that will guide the courts and tribunals under the new Constitution to dispense judicial authority and the Article that spells out the independence of the judiciary. The guiding principles found under Article 159 of the Constitution encapsulate the desire and will Kenyans hold for the Courts. They provide that justice shall be done to all ? irrespective of status , that justice shall not be delayed, alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, justice shall be administered without undue regard to procedural technicalities; and finally that the purpose and principles of this Constitution shall be protected and promoted.
The new Hierarchy of the Courts in Kenya
The Constitution of Kenya 2010 provides the hierarchy of the superior courts as the Supreme Court, the Court of Appeal, and the High Court respectively.(2) Under the previous order, there was no Supreme Court. The Constitution mandates Parliament to establish courts with the status of the High Court to hear and determine disputes relating to: employment and labour relations, and the environment and the use and occupation of, and the title to, land. This differs from the repealed Constitution which did not give Parliament the power to establish courts with the status of High Courts. Previously, the judiciary addressed this by establishing specialized divisions to deal with matters such as Land and Environment, Judicial Review and Commercial Disputes. In a break from the past, courts with the status of the High Court to hear cases relating to employment and land have been expressly provided for under Article 169.(3)
The Supreme Court
The new Constitution of Kenya places the Supreme Court at the apex of the judicial hierarchy system. The court is comprised of the Chief Justice who shall be the President of the court, Deputy Chief Justice, who shall deputise the Chief Justice and shall be the deputy Vice President of the Court and five other judges appointed by the President on the advice of the Judicial Service Commission. (4)
The Supreme Court has original, appellate and advisory jurisdiction. According to the Constitution, the Supreme Court has exclusive original jurisdiction to hear and determine questions relating to the validity of presidential elections. With the exception of the Court's original jurisdiction, the Constitution leaves broad room for Parliament and indeed the Court itself to make rules relating to the exercise of its jurisdiction. Article 163 (7) provides that the Supreme Court shall make rules for the exercise of its jurisdiction. The Supreme Court Act No. 7 of 2011 which came into force on June 23, 2011 makes further provision with respect to the operation of the Supreme Court pursuant to Article 163(9) of the Constitution.
Under the Constitution this Court may hear and determine appeals from the Court of Appeal and any other court or tribunal subject to conditions set out by the Constitution and the Supreme Court Act No. 7 of 2011. Appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution.(5) The Court's appellate jurisdiction may be invoked by a certificate granted by the Supreme Court or the Court of Appeal in respect of any matter of general public importance.(6) Such certification by the Court of Appeal may however be reviewed by the Supreme Court, and either affirmed, varied or overturned. (7)
Advisory Opinion Jurisdiction
In addition to the Court's original and appellate jurisdiction, the Constitution provides that the Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.(8) Black's Law dictionary defines an advisory opinion of the Court as ?a non binding statement by a court of its interpretation of the law on a matter submitted for that purpose.' Advisory opinions are issued in the absence of a case or controversy. Although they are not binding and carry no precedential value, they are sometimes offered as persuasive evidence in cases where no precedent exists.
Salient Provisions of the Supreme Court Act
The main objective of the Supreme Court Act No. 7 of 2011 is to make further provision with respect to the operation of the Supreme Court as a court of final judicial authority. The role and functions of the Supreme Court are wide and comprehensive under the Act. The Supreme Court is designated to safeguard the Constitution of Kenya and to be the final interpreter and guardian of the Constitution. The Court is required to assert the supremacy of the Constitution and the will of Kenyans. The role of the court is to interpret the Constitution and statutes and to create common law in a way that achieves the appropriate balance between the requirements of the individual and the whole, and between the rights of the individual and among those rights themselves; between public order and public security, and the rights of the individual and his liberty. In this sense the Supreme Court is tasked with the unique function of developing rich jurisprudence that respects Kenya's history and traditions and facilitates its social, economic and political growth. Additionally the Court is obliged to midwife the transition from the former Constitution to the present Constitution while having due regard to the circumstances, history and cultures of the people of Kenya. (9)
Special Jurisdiction of the Supreme Court
The Act donates special jurisdiction to the Court to ensure that the ends of justice are met against the backdrop of implementing various reforms in the Judiciary recommended under the new Constitution. The Act provides that the Supreme Court shall within twelve months of the commencement of the Act, either on its own motion or on the application of any person, review the judgments and decisions of any judge who has under the Vetting of Judges and Magistrates Act, 2011 been removed from office either through a legally constituted tribunal or has retired pursuant to the provisions of the Act.
In exercising this jurisdiction the Court will first conduct a preliminary enquiry to determine the admissibility of the matter. An application for review of the judgments and decisions of any judge shall not be entertained two years after the commencement of this Act.
The Supreme Court Act provides conditions upon which an appeal may lie to the Supreme Court. Section 15 (1) of the act provides that appeals to the Supreme Court shall be heard only with the leave of the Court with the exception of appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.(10) The Court has wide discretion to determine the appeals it will hear. Before admitting a case for hearing the Court will determine whether the appeal involves a matter of general public importance and whether a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard. Appeals from other courts other than the Court will only be heard in exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court.(11)
It is the opinion of this writer that the "special jurisdiction" conferred on the Supreme Court may be amenable to challenge as being ultra vires the powers of Parliament, and hence, unconstitutional. This is because the Constitution itself outlines the jurisdiction of the Supreme Court in Article 163. The jurisdiction is specific. It has original jurisdiction to hear and determine disputes relating to the elections of the Office of President; it has appellate jurisdiction; and it has advisory jurisdiction as discussed earlier. There is no provision for any other jurisdiction and none delegating to the Parliament, or giving Parliament the ability to donate to the Court. This is an interesting challenge that the Supreme Court must address itself in the future.
Court of Appeal
Under the new Constitution the number of judges, organisation and administration of the Court of Appeal will be determined by an Act of Parliament. This court shall consist of not less than twelve judges who shall elect a President of the Court of Appeal from among themselves. While it is no longer the final arbiter in disputes of the land, the new constitution did not depart much from the provisions of the repealed Constitution that related to the jurisdiction Court of Appeal. The new instrument left intact the court's jurisdiction to hear appeals from the High Court and from any other court prescribed by law.
The High Court
Article 165 establishes the High Court which subject to Article 165 (5) shall have unlimited original jurisdiction in criminal and civil matters. Article 165 (5) provides that High Court shall not have jurisdiction in respect of matters reserved for the Supreme Court's jurisdiction nor shall it have jurisdiction for matters reserved for the Environment and Land and the Employment and Labour Court.
The High Court shall have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The new Constitution has entrenched an advanced Bill of Rights which among other things recognizes socio-economic rights of the Kenyan citizens.
Further the High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed under the Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144 which makes provision for the procedure for removal of the President for reason of incapacity.
In addition this Court shall have jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of?
(i) the question whether any law is inconsistent with or in contravention of the Constitution;
(ii) the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the 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 ? relating to between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government.
Finally the High Court shall have any other jurisdiction, original or appellate, conferred on it by legislation.
Courts with status of the High Court to hear Environment & Land and Employment & Labour matters
As mentioned earlier, the Constitution lays a duty on Parliament to establish courts with the status of the High Court to hear and determine disputes relating to: employment and labour relations, and the environment and the use and occupation of, and the title to, land. These essentially are specialized courts. The Final Report of the Committee of Experts on Constitutional Review states that establishment of the specialized courts on employment and land/environment would address the competing jurisdictional issues that have historically existed between the High Court and the Industrial Court.(12)
On that note, the express requirements in the Constitution, 2010 for the establishment of the specialized courts must have been guided by dire needs to properly address matters related to employment and land. It remains to be seen how Parliament will determine the jurisdiction and functions of the courts contemplated under Article 162 (2).
The function and structure of the subordinate courts remain largely the same under the Constitution. They are the Magistrates Courts, Court Martials, Kadhis' Courts and any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2).
Article 170 provides that there shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament. The jurisdiction of the Kadhis' Court is limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Courts.(13)
Article 2 of the Constitution provides that the Constitution is the supreme law of the Republic which binds all persons and all State organs at both levels of government. Further that any law, including customary law that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. This forms the basis of the role of Courts under the new Constitution.
Courts at all levels will play an integral role to make decisions that will help to define the Constitution and while at the same interpreting the many provisions of the priority statutes that have been enacted or are yet to be enacted whose objective is to fulfill implementation of the Constitution.
The courts will remain a forum to resolve disputes and to test and enforce laws in a fair and rational manner. Under the new Constitution the courts have to take up their new position in developing a new body of principles for interpreting the new Constitution together with the national and county legislation.
They will do so without fear or favour as embodied in the judicial authority guiding principles encapsulated in the new Constitution. Indeed that is why justice is often symbolized as a blindfolded figure balancing a set of scales, oblivious to anything that could detract from the pursuit of an outcome that is just and fair.
1. Article 1
2. Article 162
3. Part 3- Subordinate Courts
4. Article 163 (1) Constitution of Kenya 2010
5. Article 163 (4) (a) Constitution of Kenya 2010
6. Article 163 (4) (b) Constitution of Kenya 2010
8. Article 163 (4) (6) Constitution of Kenya 2010
9 Section 3 of the Supreme Court Act
10 Section 15 (2) Supreme Court Act
11 Section 17 of the supreme Court Act
12 The Final Report of the Committee of Experts on Constitutional Review page 123 accessed at www.coe.go.ke on July 22 2011.
13 Article 170 (5)