Weekly Newsletter 003/2018

Weekly Newsletter 003/2018



Kenya Law

Weekly Newsletter


Requests for assistance by the International Criminal Court (ICC) should be in conformity with the Kenyan Laws
Republic of Kenya (through Cabinet Secretary, Ministry of Interior and Coordination of National Government) v Paul Gicheru & Another
Misc. Criminal Application 193 of 2015
High Court at Nairobi
L. Kimaru, J   
November 16, 2017
Reported by Chelimo Eunice
Download the Decision

 

Constitutional Lawrights and fundamental freedoms – right to fair hearing-right to equal protection and equal benefit of the law - right to liberty -  request for arrest and surrender of a suspect by the International Criminal Court (ICC) – where the ICC had issued a joint request for the arrest and surrender of the Respondents – where the Applicant had not formulated regulations prescribing procedures for dealing with requests by ICC - whether in the absence of the said regulations, arresting and surrendering the Respondents to the ICC would be an infringement to their right to fair hearing, right to equal protection of the law and the right to liberty - Constitution of Kenya, 2010, articles 21, 22, 23, 24, 25, 49 and 50; International Crimes Act  (ICA), sections 4, 9 to 17, 18,23,29,30,172 and 173; Rome Statute, articles 1,17,19,70,87,88,89 and 91.

 

International Law jurisdiction - complimentary jurisdiction of the ICC -jurisdiction of the ICC to request for arrest and surrender of Kenyan citizens - conditions precedent to admission of jurisdiction by the ICC - whether ICC satisfied the preconditions set out in article 17 of the Rome Statute in admitting jurisdiction and seeking the arrest and surrender of the Respondents - where it had not been demonstrated that State party was unwilling or unable genuinely to carry out the investigation or prosecution -whether the High Court had jurisdiction to inquire into the validity or otherwise of the order issued by the Pre-trial Chamber of the ICC where the order was issued without consulting the concerned State party - International Crimes Act sections 4, 9 to 17, 18,23,29,30,172 and 173; Rome Statute, articles 1,17,19,70,87,88,89 and 91.
 

International Law -treaties and conventions – nature and extent of application of treaties – supremacy of the Constitution and sovereignty of the people vis-à-vis the Rome Statute and conventions ratified by Kenya- Constitution of Kenya, 2010 articles 1 and 2.

 

Jurisdiction - jurisdiction of the High Court - jurisdiction of the High Court vis-à-vis jurisdiction of the ICC -  jurisdiction of the High Court to try offences against the administration of justice as set out under sections 9 to 17 of the ICA - whether the High Court had jurisdiction to try offences that the ICC had indicted the Respondents - whether the Respondents were eligible for arrest, surrender and eventual trial before the ICC, International Crimes Act, sections 9,10,11,12,13,14,15,16 and 17.
 

Brief facts:

On April 1, 2015, the Applicant received a joint request from the International Criminal Court (ICC) for the arrest and surrender of the Respondents. The Respondents had been indicted by ICC for offences against the administration of justice and warrants of arrest issued against them. In furtherance of the request by the ICC, the Applicant applied for the Court to; issue a warrant of arrest against the Respondents and thereafter determine the eligibility of the Respondents to be surrendered to the ICC to face the charges for offences against the administration of justice; to issue an order for the seizure of any relevant evidence from the Respondents; to grant permission to the investigators from the Office of the Prosecutor of the ICC to be present during the execution of such searches and seizures; and to direct that such evidence that shall be seized be transmitted to the ICC. The Applicant contended that he was satisfied that the request was valid and should be presented to the Court for appropriate consideration.
On May 28, 2015, the Court, issued some orders, including orders of arrest, search and seizure. On July 30, 2015, the Court inter alia directed that the warrant of arrest issued be stayed pending the hearing and determination of the application.
The Respondents objected to the application on the grounds that it was unconstitutional, that the Applicant had no jurisdiction to apply to the Court for the surrender of the Respondents without first satisfying the conditions precedent stipulated in articles 10, 24, 27, 28, 29, 47 and 50 of the Constitution and sections 18, 29, 172 and 173 of the International Crimes Act (ICA) , that their rights to fair trial and due process as protected by the Constitution had first to be adhered to before the Applicant could purport to present an application for their surrender to the ICC. Further, the 1st Respondent filed an application seeking for orders, inter alia, quashing of the warrant of arrest issued against him, staying of the request by the ICC for his arrest and surrender unless and until the Applicant made the necessary regulations.

 

Issues:

  1. Whether the request for assistance by the ICC was in conformity with the Kenyan laws.
  2. Whether the ICC satisfied the preconditions on the admissibility of a case before the ICC (prove that the state itself is not investigating or prosecuting, or has prosecuted, but also where the state decided not to proceed with a prosecution, unless the decision was due to the inability or unwillingness of the state) set out in article 17 of the Rome Statute in seeking the arrest and surrender of the Respondents.
  3. Whether absence of regulations which were to be made by the Applicant pursuant to sections 172 & 173 of the ICA prescribing procedures for dealing with requests by ICC invalidated the proceedings by the Applicant.
  4. Whether the Respondents were eligible for arrest, surrender and eventual trial before the ICC.
  5. Whether the Court had jurisdiction to try offences against the administration of justice that the ICC had indicted the Respondents.
  6. Whether the Court had jurisdiction to inquire into the validity or otherwise of the order issued by the Pre-trial Chamber of the ICC.
  7. Whether the Court had jurisdiction to quash the warrant of arrest, issued by a court of equal jurisdiction.
Held:
  1. Kenya was a signatory to the Rome Statute of the ICC. The preamble and article 1 of the Rome Statute of the ICC provided that the ICC as established and in exercise of its jurisdiction would be complementary to national criminal jurisdictions. Article 17 of the Rome Statute set out the circumstance under which the ICC could admit a case in its jurisdiction.
  2. The ICC, in seeking the surrender of the Respondents, was exercising a complementary jurisdiction to that of the Court as provided in the preamble and article 1 of the Rome Statute. That was more so in respect of an alleged offence against the administration of justice. Before the ICC exercises that jurisdiction, it had to satisfy itself of the precondition set out in article 17 of the Rome Statute particularly article 17(2).
  3. The Pre-trial Chamber of the ICC was aware of complementary jurisdiction when she considered the application made by the Prosecutor of the ICC seeking the issuance of the warrant of arrest of the Respondents. However, Pre – trial Chamber held
  4. The Pre-trial Chamber of the ICC assumed jurisdiction in the case involving the Respondents after it had been moved in an application filed by the Prosecutor of the ICC. The application was made ex-parte without reference to any other concerned party, including Kenya which was a State Party, and which it was expected it would comply with the request for assistance to secure the surrender of the Respondents.
  5. The Pre-trial Chamber was aware under the paragraph 10 of the preamble, articles 1, 17, 70 of the Rome Statute of the ICC and rule 162 of the Rules of Procedure and Evidence of the ICC, the court with the primary jurisdiction to hear and determine any charges relating to offences against the administration of justice was a national court of a State Party hence the requirement for the ICC to with the State Party that
  6. For the Pre-trial Chamber to base its decision on that without first consulting Kenya as a State Party on whether it was willing to prosecute the Respondents on the basis of the evidence that the Prosecutor of the ICC had, was contrary to article 17 of the Rome Statute of the ICC where the court was required to defer to a State Party
  7. In making the decision, the Pre – Trial Chamber denied Kenya, a State Party, the primary opportunity to investigate and prosecute the Respondents as provided under section 18 of the ICA. The Court shuddered to imagine that the Pre – Trial Chamber chose not to consult Kenya because it had determined, without input from Kenya, that the State felt in the category of States defined in article 17(3) of the Rome Statute, that is that Kenya’s criminal justice system suffered from
  8. The Respondents justifiably complained that the Applicant, the Director of Public Prosecutions (DPP) and the Attorney General (AG) shirked and abdicated their responsibilities as State Officers to uphold the national value and principles of governance as provided under articles 10 and 259(1) of the Constitution. Those officers, when confronted with the request made by the ICC, firstly, for the arrest, and secondly, for the surrender of the Respondents, instead of making inquiry whether the Pre-trial Chamber of the ICC had jurisdiction to issue such orders without consulting Kenya as a State Party to the Rome Statute or considering whether to assume jurisdiction as provided under section 18 of the ICA and in accordance with the Constitution of Kenya and the Rome Statute of the ICC, filed the instant application.
  9. The Respondents fundamental rights and freedoms to fair trial as enshrined under article 25(c) of the Constitution, which could not be limited or abridged under any circumstances would be breached if the Court allowed the application made by the Applicants.
  10. The position taken by the Applicant that the Court had no jurisdiction to inquire into the validity or otherwise of the order issued by the Pre-trial Chamber of the ICC was not only unconstitutional but in breach of the self-same Rome Statute that provided procedure to be adopted under articles 17 and 70 of the Rome Statue of the ICC in regard to offences against the administration of justice. That was because of the following reasons:
    1. The Pre-trial Chamber of the ICC was a court of complementary status with the Court. Under section 18 of the ICA, the Court had the primary jurisdiction to try persons accused of offences against the administration of justice allegedly committed within its jurisdiction. The Pre-trial Chamber of the ICC felt in error when it assumed jurisdiction on the basis of undisclosed that. No evidence was presented to the Court by the Applicant to support the contention by the Single Judge that Kenya, as a State Party, was unwilling or unable to investigate and prosecute the Respondents. If such evidence of the commission of offences against administration of justice was presented to the constitutionally mandated organs of the Republic of Kenya, it would not do for the Pre-trial Chamber to reach a finding to the effect that without the Pre-trial Chamber first consulting with the State Party (Republic of Kenya) as required under rule 162(1) of the Rules of Procedure and Evidence of the ICC. The least the ICC Prosecutor could do was to avail such evidence before the Court to persuade it that such finding was made on the basis of credible evidence. The Pre-trial Chamber overlooked the law which granted Kenya, a State Party, the primary mandate to investigate, prosecute and try offences against the administration of justice alleged committed within its jurisdiction unless inability or procrastination was established. The Pre-trial Chamber’s finding was speculative in so far as no attempt was made by the Chamber or the Office of the Prosecutor of the ICC to consult the necessary State Party (the Republic of Kenya).
    2. The Applicant, DPP and AG neglected or abandoned and or failed in their duty to uphold the sovereignty of the people of Kenya as provided under article 1(1) of the Constitution and in particular, by failing to exercise their delegated functions as provided under article 3(b) of the Constitution by refusing to assert and exercise the authority delegated to them by the Constitution to uphold the national values and principles of governance as provided under articles 10 and 259 of the Constitution. They dismally neglected to perform their functions as mandated to them in the ICA. In filling the instant application before making inquiry on the validity or legality or otherwise of the request for the surrender of Respondents made by the ICC, the said State Officers abdicated their responsibilities to assert their Constitutional authority on behalf of the Republic of Kenya as a State Party of the Rome Statute to exercise jurisdiction in the first instance in respect of the offences against the administration of justice before the ICC exercised its complementary jurisdiction as provided under of the and article 1 of the Rome Statute of the ICC.
    3. The acts that constituted the alleged offence against the administration of justice occurred within the jurisdiction of the Court. The Court had the primary jurisdiction to try such offences under the Constitution and the laws made thereunder including the ICA unless, under circumstances specified in the Rome Statute of the ICC, the ICC assumed jurisdiction in exercise of its complementary jurisdiction.
    4. The basis upon which the Pre-trial Chamber of the ICC reached its decision for the request for cooperation for the arrest, search and surrender of the Respondents was challengeable. The Respondents deponed that officers attached to the Office of the Prosecutor of the ICC coerced, intimidated and improperly influenced the witnesses that were the subject of the charges against the administration of justice as provided under article 70 of the Rome Statute and sections 9 to 17 of the ICA, 2008 into contriving and manipulating evidence so as to fit with the charges that were brought against the accused persons in the then pending case before the ICC. The 1st Respondent deponed that the Office of the Prosecutor of the ICC applied pressure and made attempts to coerce and intimidate him into withdrawing from representing his client (one of the witnesses in the case), and if he did not do so, charges similar to the instant ones would be brought against him. The allegations raised by the Respondents were serious and could not be wished away. The least that the Applicant, the Inspector General of Police and the DPP should have done in the circumstances was to investigate the allegation to establish its veracity. It was clear that the Office of the Prosecutor of the ICC would, in the circumstances, be unlikely to investigate officers based at its office. The assertion by the Respondents that their fundamental rights and freedoms to fair trial as enshrined in the Constitution would likely be infringed if the allegations they had deponed in their affidavits were not investigated was not without merit.
  11. The Respondents, as Kenyan citizens, were entitled to exercise the right to citizenship as provided under article 12(1)(a) of the Constitution. That right included the benefit of the rights and fundamental freedoms in the Bill of Rights and the right to be tried before a court established under the Constitution if it was alleged he had committed an offence within the jurisdiction of the Court. State officers, such as the Applicant, the AG, the DPP and the Inspector General of Police could not abdicate the mandate delegated to them by the Constitution particularly, article 21(1). Unless the contrary was established, the Respondents were entitled, as a matter of their rights and fundamental freedoms, to be tried in Kenya.
  12. The ICA, which domesticated the Rome Statute of the ICC was assented to on December 24, 2008. That Act was subject to the Constitution which was promulgated on August 27, 2010 by virtue of section 7(1) of the Transitional and Consequential Provisions of the Constitution. Section 7(2) decreed, inter alia, that the provisions of the Constitution would prevail to the extent of the conflict between the Constitution and that law.
  13. The request for inter alia, the search of the properties of the Respondents, in the presence of investigators from the ICC, with a view to obtaining evidence in form of cell phones, computers, diaries, notes or recordings of meetings or conversations, financial or banking records from the Respondents was in breach of article 50(2)(b) of the Constitution that required every accused person to be informed of the charge that he would face with sufficient details to answer to it. It was also in breach of article 50(2)(j) of the Constitution that required every accused person to be informed in advance of the evidence that the prosecution intended to rely on, and have reasonable access to that evidence.
  14. The application was devoid of the evidence that the ICC intended to rely on in the prosecution of the Respondents. The Applicant’s application was in breach of section 23(2) of the ICA that mandated any request for assistance by the ICC be in conformity with the Kenyan laws. It was apparent that the requests made to the Court indicated that the Prosecutor of the ICC was still gathering evidence to prosecute the Respondents yet charges had already been laid against them before the ICC. In so far as the ICA provided that an application for the surrender of the Respondents to the ICC could be made without the Respondents being supplied with evidence in support of the charge against them, such application was not sustainable and was not within the threshold mandated by the Constitution.
  15. The Applicant’s application in purported exercise of its mandate to cooperate with the ICC could not be allowed unless and until the ICC and the Applicant complied with the conditions precedent, in compliance with the Constitution of Kenya 2010, and the ICA, the Rome Statute of the ICC and the Rules of Procedure and Evidence of the Court.
  16. The warrant of arrest issued by the Court against the Respondents was lifted. For the avoidance of doubt, the Applicant was not to take any action in furtherance to the request made for the surrender of the Respondents, unless and until there was compliance with the orders of the Court.
Application dismissed.
Kenya Law
Case Updates Issue 003/2018
Case Summaries

CONSTITUTION LAW Applicability of the Concept of Reasonable Expectation in Employment Disputes

Joseph Maina Theuri vs Gitonga Kabugi and 3 Others
Cause 363 of 2013
Employment and Labour  Relations  Court at  Nakuru
Radido, J
March 10, 2017
Reported by James Nginya and Ribia John

Download the Decision

Constitutional Law - fundamental rights and freedoms - right to fair labour relation – employer employee relationship – where an employer alters the recommendations of a committee to the detriment of the employee – where the employer did not grant the employee the right to be heard -  whether an employer by altering or varying recommendations of a Committee or panel which had the occasion to listen to an employee before making recommendations, violated the employee’s right to fair administrative action-Constitution of Kenya, 2010 article 41
Labour Law - employment -reasonable expectation – applicability of the concept of reasonable expectation - whether the statutory concept of reasonable expectation applied to labour disputes in Kenya - whether there was an equivalent of the statutory concept of reasonable expectation in any of the Kenyan statutes.
Labour Law - employment – reasonable expectation – legitimate expectation – reasonable expectation vis-à-vis legitimate expectation - what was the difference between the concept of legal expectation and the concept of reasonable expectation - whether a contract that created a contractual expectation was akin to the concept of reasonable expectation or legitimate expectation
Contracts – employment contract – contractual expectation – effect of contractual expectation in employment contracts - whether a contract that created a contractual expectation was akin to the concept of reasonable expectation or legitimate expectation

Brief facts:
The Claimant was appointed as Managing Director of Nyahururu Water and Sanitation Company Limited (4th Respondent) by letter dated December 15, 2008.His contract was renewed on October 25, 2010. The new contract was for 3 years; it was renewable subject to performance being satisfactory.  Before the expiry of 3 years, the 4th Respondent’s Finance and Administration Committee met and recommended that the Claimant’s contract be renewed for a further period of 3 years. That was after a performance appraisal was carried out and the Claimant  scored 98%. However, in a full board meeting held, it was resolved that the Claimant’s contract would not be renewed triggering filing of the case by the Claimant.
The Claimant grievance was that the decision of the Board violated his right to fair labour practices. He also claimed that he had a reasonable expectation to have his contract renewed by the 4th Respondent.

Issue:

  1. Whether the statutory concept of reasonable expectation applied to labor disputes in Kenya.
  2. Whether there was an equivalent of the statutory concept of reasonable expectation in any of the Kenyan statutes.
  3. What was the difference between the concept of legal expectation and the concept of reasonable expectation?
  4. Whether a contract that created a contractual expectation was akin to the concept of reasonable expectation or legitimate expectation.
  5. Whether an employer by altering or varying recommendations of a Committee or panel which had the occasion to listen to an employee before making recommendations, violated the employee’s right to fair administrative action.Read More...

Relevant Laws:
Constitution of Kenya
Article 41(1)
Every Person has the right to fair labour practices

Held:

  1. From the contract, it appeared that the parties intended the non- renewal of the contract to be a termination of contract and not just expiry through effluxion of time or lapse. In so far as the 4th Respondent did not renew the contract, the 4th Respondent terminated the Claimant’s contract.
  2. Legitimate expectation meant that there had to be an express, clear and unambiguous promise given by a public authority; the expectation itself had to be reasonable; the representation had to be one which it was competent and lawful for the decision-maker to make; and there could not be a legitimate expectation against clear provisions of the law or the Constitution.
  3. The mere fact that the Claimant’s contract had a clause on renewal subject to fulfilment of certain conditions was not sufficient to create legitimate expectation of renewal of contract without more or that the proviso on renewal amounted to an express, clear and unambiguous promise given by a public authority. The 4th Respondent in entering into the contract was not acting as a public authority but as any other employer.
  4. There was no equivalent of the statutory concept of reasonable expectation in any of the Kenyan statutes, it was doubtful whether decisions from South Africa on reasonable expectation would apply generally.
  5. Doubt arose because South African cases turned on an interpretation of a particular statutory framework (section 186(1) of the South African Labour Relations Act) which expressly provided that a dismissal occurred when an employer refused to renew a fixed term contract when an employee reasonably expected a renewal. The legal principle within that framework was one of reasonable expectation and not legitimate expectation.
  6. On contextualizing whether there was legitimate expectation in the instant case, the Court out of necessity had to refer back to the contract between the parties
  7. The contract created a contractual expectation that was akin to the South African statutory concept of reasonable expectation rather than legitimate expectation on the Claimant that if he performed his duties well by meeting set targets, met suitability test and expressed a desire to continue serving, the 4th Respondent would renew his contract. Therefore, whether the 4th Respondent breached that contractual expectation was to be measured against the Constitutional imperative of right to fair labour practices in article 41.
  8. The Claimant expressed a desire to continue serving and a performance appraisal conducted by a Committee of the 4th Respondent’s Board awarded the Claimant 98%. That by any standards was not a by the way achievement.
  9. Without giving any reasons for rejecting appraisal done by Committee of the 4th Respondent or asking the Claimant to make further representations before declining the recommendation, the 4th Respondent was attempting to steal a match on the Claimant and taking into account extraneous considerations unknown to the Claimant. That represented the hallmarks of unfair labour practice in terms of article 41 of the Constitution.
  10. In the instant era of justification and fairness in employment relationships as demanded by article 41 of the Constitution, the 4th Respondent by acting on the basis of allegations received from employees against the Claimant and for which investigations were not disclosed to the Claimant or the Court, could not be allowed to have its cake and eat it.
  11. The Claimant performed well in performance appraisal, expressed a desire to continue but was not confronted with allegations which could have affected suitability.  The 4th Respondent violated the Claimant’s contractual expectation to renewal of contract in circumstances which rendered the non-renewal an unfair termination of employment.
  12. The fulcrum of the employment relationship in Kenya was fair labour practices as envisaged under article 41 of the Constitution and thus for a full board to reject a recommendation of its committee based on a performance appraisal of an employee, such rejection ought to have been based on very cogent reasons and which reasons it would only be fair ought to be placed before the employee for a response.
  13. In the employment relationship and under the principle of fair labour practices, courts frowned upon employers altering or varying recommendations of a committee or panel which had the occasion to listen to the employee before making recommendations, if the employee was not afforded an opportunity to be heard before a variation/alteration of such recommendation(s).

Amended Statement of Claim partly allowed
Orders

  1. Declaration issued that the 4th Respondent violated the Claimant’s contractual expectation to renewal of contract and which violation amounted to unfair labour practice.
  2.  4th Respondent ordered to pay the Claimant Kshs 706,560/- as damages.
  3.  4th Respondent ordered to meet the Claimant costs on ¾ scale.
CONSTITUTION LAW Section 132 of Penal Code Declared Unconstitutional

Robert Alai v Attorney General
Petition 174 of 2016
High Court at Nairobi
Mwita, J
April 26, 2017
Reported by James Nginya

Download the Decision

Constitution Law- rights and fundamental freedoms-freedom of expression- whether provisions of section 132 of Penal code was Constitutional in light of provisions freedom of expression in the Constitution-Constitution of Kenya 2010, article 33; Penal Code, section 132.
Constitution Law- rights and fundamental freedoms-limitation of rights and fundamental freedoms- whether provision of section 132 of penal code was justifiable limitation to freedom of expression contemplated by article 24 of the Constitution- Constitution of Kenya 2010, article 24; Penal Code, section 132.
Constitution Law- rights and fundamental freedoms –right to fair trial-whether section132 of Penal Code infringed on right to fair trial- Constitution of Kenya 2010, article 50 (2) (a)( i)(l); Penal Code, section 132.

Statutes - interpratation of statutes - Penal Code section 132 - whether provision of section 132 of penal code was justifiable limitation to freedom of expression contemplated by article 24 of the Constitution

Brief facts:
The petition challenged the constitutionality of section 132 of the Penal Code, after the Petitioner, who had on December 17, 2014 been arraigned before the Chief Magistrate’s Court and charged with the offence of undermining the authority of a Public Officer contrary to section 132 of the Penal Code. Particulars of the offence stated that; while using the open source website twitter, the Petitioner posted the words “Insulting Raila is what Uhuru can do, he hasn’t realized the value of the presidency, adolescent President, this seat needs maturity”. which publication was calculated to bring into contempt the lawful authority of the President of the Republic of Kenya.

Issues:

  1. Whether section 132 of Penal Code was inconsistent with article 33 of the Constitution on freedom of expression thus unconstitutional.
  2. Whether section 132 of Penal Code was contrary to article 50 (2) a, i, l and 25 (c) of the Constitution on right to fair trial thus unconstitutional.
  3. Whether section 132 of Penal Code was a justifiable and reasonable limitation of right to freedom of expression as contemplated by article 24 of the Constitution.Read More..

Relevant Laws provisions of the law:
Constitution of Kenya 2010,
Article 33;
(1) Every person has the right to freedom of expression, which includes
   (a) freedom to seek, receive or impart information or ideas;
   (b) freedom of artistic creativity; and
   (c) academic freedom and freedom of scientific research.
(2) The right to freedom of expression does not extend to—
   (a) propaganda for war;
   (b) incitement to violence;
   (c) hate speech; or
  (d) advocacy of hatred that—
    (i) constitutes ethnic incitement, vilification of others or incitement
      to cause harm; or
    (ii) is based on any ground of discrimination specified or
contemplated in Article 27(4).

Article 50(2) (a)(i) ( l)
(2) Every accused person has the right to a fair trial,
               (a)the right to be presumed innocent until the contrary is proved

              (i) to remain silent, and not to testify during the proceedings;
               (l)to refuse to give self-incriminating evidence

Article 24(1);
(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—
(a) the nature of the right or fundamental freedom;
(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
(e) the relation between the limitation and its purpose and whether there
are less restrictive means to achieve the purpose?

Article 25(c);
Despite any other provision in this Constitution, the following rights and
fundamental freedoms shall not be limited—

 (c) the right to a fair trial; and

Penal Code, Section 132; 
 Any person who, without lawful excuse, the burden of proof whereof shall be upon him, utters, prints, publishes any words or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer, is guilty of offence and is liable to imprisonment for a term not exceeding three years.

Held:

  1. When the constitutionality of a statute or provision of a statute was called to question, the court was under obligation to employ the constitutional mirror laying the impugned legislation or provision alongside the article(s) of the Constitution and determine whether it meets the constitutional test. The Court had to also check both the purpose and effect of the section or the Act, and see whether any of the two could lead to the provision being declared unconstitutional. The purpose of a provision or effect thereof, could lead to unconstitutionality of the statute or provision
  2. Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.  All legislation was animated by an object the legislature intended to achieve. That object was realised through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of legislation, object and its ultimate impact were clearly linked, if not indivisible. Intended and achieved effects had been looked to for guidance in assessing the legislation’s object and thus the validity.
  3. To determine the constitutionality of a section of a statute or Act of Parliament, the Court had to consider the purpose and effect of the impugned statute or section thereof. If its purpose did not infringe a right guaranteed by the Constitution, the Court had to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringed a right guaranteed by the Constitution, the impugned statute or section thereof would be declared unconstitutional
  4. In examining the constitutionality of a statute, it had to be assumed that the Legislature understood and appreciated the needs of the people and the laws it enacted are directed to problems which were made manifest by experience. The onus was always on the person challenging the legislation to prove the unconstitutionality alleged.
  5. Article 19 (1) of the Constitution stated that the bill of rights was an integral part of Kenya’s democratic state, and was the framework for social, economic and cultural policies. Article 19(3) thereof stated that the rights and fundamental freedoms in the bill of rights belonged to each individual and were not granted by the state and were subject only to the limitations contemplated in the Constitution.
  6. Freedom of expression and opinion was a constitutional guarantee. It is one of the fundamental rights and freedoms under the Constitution under article 33 the only limitation contained in article 33(d) were expression which
  7. i. Constituted ethnic incitement, vilification of others, or incitement to   cause harm, or;
    ii. Was based on any ground of discrimination specified or contemplated in article 27 (4)

  8. The limitation contemplated under article 27(4) of the Constitution was one based on race, sex, pregnancy, mental status, health status, ethnic or social origin, colour, age among others. freedom of expression was not absolute but, it was only subject to limitations contained in the Constitution. The crime committed by the Petitioner, according to the respondents, was publication of words that were calculated to undermine the authority of a public officer, the public officer here being the president of the Republic of Kenya.
  9. Kenya was a democratic state with a democratically elected leadership. The people of Kenya had a democratic right to discuss affairs of their government and leadership because of their right to freedom of expression guaranteed by article 33 of the constitution. They could not be freely expressing themselves if they did not criticise or comment about their leaders and public officers.
  10. Article 33(2) of the Constitution limited the freedom of expression and any expression that was not in accordance with Clause (2) was limited. Only through public criticism did citizens make their leaders know that certain actions could not be in the interest of the nation, and such criticism helped public officers understand the feelings of the citizens and following this criticism, leaders may act to address the concerns the criticism was directed at.
  11. Public officers had to tolerate criticism in an open and democratic state because people usually exercised the right granted to them by the Constitution. A legislation’s purpose should not be to suppress this right.
  12. In applying the purpose and effect principle, the Court had to look at the history and circumstances under which an impugned provision or legislation was enacted. The marginal notes to section 132 of Penal Code showed that the section was introduced in 1958, at the height of the state of emergency, a turbulent period in the history of this country.  The purpose was to suppress dissent among the natives with the object of protecting and sustaining the colonial government in power then. However, the resultant effect was to instill fear and submission among the people. That could not be the object of section 132 of Penal Code in the current constitutional dispensation when people enjoyed a robust Bill of Rights that had opened the democratic space in the country, and in particular, when article 20(2) of the Constitution stressed that every person was to enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. People had the right to exercise the right to freedom of expression to the greatest extent, subject only, to the limitation of that right under article 33 (2) or any other provision in the Constitution.
  13. Section 132 of Penal Code did not define the words “undermining authority of a public officer” leaving it to the subjective view of the person said to have been undermined and/or the Court. In a democratic state, constructive criticism of public or state officers was the hallmark of democracy and the means for public accountability. Criminalising criticism was not in accordance with a transformative Constitution, since senior public officers were to routinely be open to criticism. Dissent in opinion should not amount to a crime otherwise that was in effect, suppressing the right to hold different opinion from those in public office.
  14. Article 73 of the Constitution provided that the authority assigned to a state officer was a public trust to be expressed in a manner consistent with the purpose and objects of the Constitution, demonstrated respect for the people, brings honour to the nation and dignity to the office, and vested in the state officer the responsibility to serve people rather than the power to rule them. Public office reposed on the public officer servant leadership, and therefore, the right to criticize public officers was not to be criminalized merely as a means of suppressing dissent. 
  15. In a free and democratic society, it was almost too obvious that those who hold office in government and who were responsible to public administration, had to always be open to criticism. An attempt to stifle or fetter such criticism amounted to political censorship of the most insidious and objectionable kind. At the same time, it was no less obvious that the very purpose of criticism leveled to those who had the conduct of public affairs by their political opponents was to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.
  16. Article 25 (c) provided that despite any other provision in the Constitution, the right to fair trial could not be limited. Under article 25 (c), the right to fair trial was non-derogable. Article 50 (2) (a) provided that every person has the right to be presumed innocent until the contrary is proved.  The impugned Section 132 of Penal Code provided that a person charged under that section had the burden to prove that he/she uttered, printed or published the words with a lawful excuse. That clearly shifted the burden of proof of the lawfulness of the acts complained of to the accused. It was always the duty of the prosecution to prove a criminal case against the accused, a burden that never shifted.
  17. An accused had a right to remain silent during his trial, and not to say anything that would incriminate him. That was the import of article 50(2)(i) which provided that every person had a right to remain silent and not to testify during the proceedings. While clause 2 (l) provided that an accused had the right to refuse to give self-incriminating evidence.  The constitutional rights that guaranteed the right to a fair trial could be not limited under article 25(c). Section 132 of the Penal Code to that extent, derogated those rights, and was therefore inconsistent with not only article 50(2) (a), (i) and (l), but also article 25 (c) of the Constitution.
  18. Any limitation to a fundamental right had to be reasonable and justifiable.  The limitation to freedom of expression by section 132 had to be justified. Kenya being a democratic society, limitation of a right not only had to be reasonable but also justified by the party seeking to limit that right. Such limitation had to strike a balance between the provision limiting the right and article 24 of the Constitution.
  19.  Article 24 (1) of the Constitution provided, that a right or fundamental freedom in the bill of rights would not be limited except by law, and  only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the nature of the right or fundamental freedom ; the importance and the purpose of limitation, the nature and the extent of limitation, the need to ensure that the enjoyment of the right and fundamental freedoms by any individual did not prejudice the rights and fundamental freedoms of others; and the relationship between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. The respondent herein did not sufficiently demonstrate that the limitation by section 132 was justified.
  20. The duty of the state was to justify the derogation of a Constitutional right. In the instant case, the State did not even in the remotest sense, attempted to show that the limitation was reasonable and justifiable, as required by article 24 (3) of the Constitution.  No material or policy considerations were placed before court to justify the limitation. The right to freedom of expression being a constitutional right, could only be limited in accordance with the Constitution itself, and where it was limited by statute, that statute or statutory provision had to meet the constitutional test of reasonableness and justifiability.
  21.  Section 132 of Penal Code did not define the words ‘undermining authority of a public officer’. That left the words too general, vague and wide to the extent that it was not clear when a person was said to have undermined a public officer’s authority. Neither did it show how the act complained of hindered public officer from performing his obligations under that office. A law, especially one that created a criminal offence, had tobe clear and unambiguous.  It should not be so widely and vaguely worded as to net anyone who may not have intended to commit what is criminalized by the section
  22. The petition had raised a significant question of whether criticism of a public officer was a ground for limiting a fundamental right enshrined in the Constitution. As seen from the Constitution itself, the freedom of expression  to hold opinion, could only be limited by the Constitution. Criminalising criticism was a curtailment of the right to speak about public officers and it derogated ones right to hold opinion. The Bill of Rights in the transformative Constitution was clear that rights were for enjoyment as opposed to curtailment. The impugned provision, to the extent that it purported to suppress dissent, a derogation of article 33 of the Constitution. The impugned provision contravened article 25 (c) of the Constitution to the extent that it limited the right to a fair trial as enshrined in article 50(2)(a) thereof.  Any alleged discomfort could be addressed by less restrictive means than curtailment of a fundamental right.
  23. The people of Kenya gave themselves a Constitution with a robust and progressive bill of rights.  A provision such as Section 132 of the Penal Code was too retrogressive to fit in a modern, open and democratic society. It was too wide in scope, punitive in intent and suppressive in effect to be tolerated by our Constitution.
  24.  The impugned section 132 of the Penal Code was inconsistent with articles 33, 50 (2) (a), (i), (l) and 25 (c) of the Constitution, in so far as it suppressed freedom of expression, shifted the burden to an accused, denied an accused the right to remain silent and derogates the right to fair hearing. Article 20 (2) of the Constitution was also clear that every person had the right to enjoy the rights and fundamental freedoms to the greatest extent consistent with the nature and the right or fundamental freedom. It was a value and principle of the Constitution (Article 2 (4) that laws which were inconsistent with Constitution were invalid to the extent of the inconsistency.

Petition allowed
Orders:

  1. A declaration issued to the effect that section 132 of the Penal Code was unconstitutional and invalid.
  2. A declaration issued that the continued enforcement of section 132 of the Penal Code by the 2nd Respondent against the Petitioner was unconstitutional and a violation of his fundamental right to freedom of expression.
  3. Each party was to bear their own costs.
ELECTION LAWS Considerations for one to be enjoined as an Interested Party in a Presidential Election Petition

Njonjo Mue & another v Chairperson Independent Electoral and Boundaries Commission & 3 others
Presidential Election Petition No. 4 of 2017
Supreme Court of Kenya
Maraga, CJ; Mwilu, DCJ; Ibrahim, Ojwang, Wanjala, Njoki & Lenaola, SCJJ
November 14, 2017
Reported by Robai Nasike Sivikhe

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Election Laws- presidential election petition- joinder of parties in a presidential election petition-application to be enjoined as an interested party in a presidential election petition- whether the Applicant had an identifiable stake in the petition and would be prejudiced if he was not enjoined as an interested party- whether the Applicant had qualified to be enjoined as an interested party.
Civil Practise and Procedure- joinder of parties- application to be enjoined as an interested party in a presidential election petition- whether the Applicant had an identifiable stake in the petition and would be prejudiced if he was not enjoined as an interested party- whether the Applicant had qualified to be enjoined as an interested party.

Brief facts:
Mr. Edward Kings Onyancha Maina made an application for joinder as an interested party in the Presidential Election Petition No. 4 of 2017. The Applicant contended that he was a Registered Voter, who cast his vote in the October 26, 2017 repeat Presidential election and that he was not consulted by the Petitioner before making the petition (No. 2 of 2017). According to the Applicant, the petition being sought had violated his freedoms and rights. The Applicant stated that grant of leave will enable him to ventilate, sustain, protect, promote, enforce and champion his freedoms and rights enshrined under the Constitution and the relevant law. The Applicant contented that he strongly feared that unless he was enjoined in the instant petition he stood to be violated as a voter in the event that the declared results were invalidated.

Issues:

  1. Whether the Applicant had qualified to be enjoined as an interested party.
  2. Whether the Applicant had an identifiable stake in the petition and would be prejudiced if he was not enjoined as an interested party
  3. Read More...

Held:

  1. The Applicant had neither demonstrated that he had an identifiable stake in the petition nor had he demonstrated that he would be prejudiced if he was not enjoined as a party taking into account the issues he raised had already been addressed by the parties.
  2. The Applicant had not qualified to be joined as an interested party. The Applicant had not intended to make submissions before the Court that were not already presented by the rest of the parties.

Application dismissed.

CIVIL PRACTICE AND PROCEDURE Whether the Attorney General’s Amicus Brief had addressed points of law that had not been addressed by the parties to the suit

John Harun Mwau v Independent Electoral and Boundaries Commission & 3 others
Petition No. 2 of 2017
Supreme Court of Kenya
Maraga, CJ; Mwilu, DCJ; Ibrahim, Ojwang, Wanjala, Njoki & Lenaola, SCJJ
November 14, 2017
Reported by Robai Nasike Sivikhe

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Civil Practise and Procedure- joinder of parties- amicus curiae- application by the Attorney General to be enjoined in a presidential petition as amicus curiae - whether the Attorney General had qualified to be admitted as Amicus Curiae

Brief facts:
The Applicant (the Attorney General) lodged an application to be enjoined in the proceedings as Amicus Curiae. According to the Applicant, his joinder in the proceedings would enhance the right of access to justice in terms of the qualitative normative content of the political rights as well as open positive lines of development of electoral law jurisprudence with regard to whether nominations of presidential candidates was a procedural requirement in the conduct of fresh presidential election arising under Article 140(3) of the Constitution.
 The Applicant contented that the conduct of fresh presidential election arising under Article 140(3) of the Constitution was a matter of great public interest to which joinder of the Attorney General as a defender of the public interest was critical. According to the Applicant, the Presidential electoral disputes normally raised constitutional questions of great public importance revolving around the interpretation and application of constitutional and legal principles and policy to a given disputed issue.
It was contented that having been involved as amicus curiae in the Raila Odinga, 2013 case where the issue of candidates to participate in a fresh presidential election was raised, and having been involved in post-2013 electoral legal reform as affirmed by the Court in the case of Raila Odinga & Another vs. IEBC & 2 Others, the Attorney General was in a special position to assist the Court in making a determination on the issue. It was argued that the Applicant had the relevant expertise to assist the Court to make a determination on the pointed issues by placing relevant material and research before the Court.

Issues:

  1. Whether the Attorney General had qualified to be admitted as Amicus Curiae
  2. Whether the Attorney General’s Amicus Brief had addressed points of law that had not been addressed by the parties to the suit.Read More...

Held:

  1. The Attorney General had not qualified to be admitted as amicus curiae in the proceedings because his Application had not met the threshold laid out in the Mumo Matemu case. In particular:
  2. The Attorney General’s amicus brief had not addressed point(s) of law not already addressed by the parties to the suit so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
  3. The amicus brief neither demonstrated that the submissions intended to be advanced will give such assistance to the Court as would otherwise not have been available nor drawn the attention of the Court to relevant matters of law or fact which would otherwise not have been taken into account. The issues advanced in the amicus brief had been extensively covered by the parties to the Petition and no new points of law or legal expertise on the proposed issue of ‘nomination’ had been advanced by the Attorney General.

Application dismissed.

ELECTION LAWS Time within Which a Presidential Petition ought to be Heard and Determined

David Pkosing v National Super Alliance & 12 others
Petition 19 of 2017
Supreme Court of Kenya
Maraga, CJ; Mwilu, DCJ; Ojwang, Wanjala, Njoki and Lenaola, SCJJ
November 14, 2017
Reported by Robai Nasike Sivikhe

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Election Laws- presidential election petition- limitation of time- the time within which a presidential petition ought to be heard and determined- an application that sought that a presidential petition that had been filed be heard within 14 days- whether the presidential petition was one that questioned the validity of a presidential election and hence ought to be heard and determined within 14 days- whether the presidential petition could be categorised as a time bound litigation- Constitution of Kenya, 2010, article 140.

Brief facts:
The Petitioner, in a petition dated November 1, 2017, had sought 16 declarations. The gravamen of his prayers was that the acts of Raila Amolo Odinga, Stephen Kalonzo Musyoka, Wycliffe Musalia Mudavadi and Moses Masika Wetangula together with their political parties, the National Super Alliance; Orange  Democratic Movement; Wiper Democratic Movement – Kenya; Ford Kenya Party; and Amani National Congress as well as their supporters, to boycott, sabotage, frustrate and or obstruct the conduct of the October 26, 2017 presidential election, amounted to treason and an attempt to establish a government in Kenya other than in accordance with the Constitution. The Petitioner sought a further declaration that Hon. Uhuru Muigai Kenyatta was lawfully elected in the fresh presidential election held on October 26, 2017.
The Chief Justice directed that the petition be heard by the whole court on priority basis after December 13, 2017 since the Supreme Court was engaged in hearing time bound petitions under article 140 of the Constitution. Undeterred by the directions, the Applicant returned to the Supreme Court with an application under section 24 of the Supreme Court Act and Rule 26 of the Supreme Court Rules seeking that his petition be consolidated and heard together with Petitions No.2 and 4 that were challenging the declaration of Hon. Uhuru Muigai Kenyatta and Hon. William Samoei Ruto respectively as President and Deputy President elect. 

Issues:

  1. Whether the Presidential Petition was a time bound litigation that ought to be heard and determined within 14 days.
  2. Whether the Petition had raised questions with regard to the validity of the presidential election.Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 140
140. Questions as to validity of presidential election
(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.

Held:

  1. The Petitioner’s application could not be granted because it did not fall within the purview of article 140 of the Constitution which required petitions challenging the election of the president elect to be filed within seven days of the declaration of the results of the presidential election and heard and determined within 14 days of filing. The petition was not a time bound litigation.
  2. The petition was not seeking to challenge the declaration of Hon. Uhuru Kenyatta as the president elect.  The petition was seeking declarations to the effect that the acts of Hon. Raila and Hon. Stephen Musyoka and supporters to boycott and their attempts to sabotage the conduct of elections on October 26, 2017 amounted to treason and an attempt to unconstitutionally establish a government in Kenya.
  3. If the Instant Court lost focus, succumbed to pressure and allowed all cases by parties aggrieved by the conduct of a presidential election to be heard within the period of 14 days allowed by article 140, it would be swamped by an avalanche of petitions it would not be able to determine within that time frame and occasion a constitutional crisis.
  4.  The petition was not a time bound litigation. Hence it would be heard with others after the Supreme Court had determined the petitions challenging the election of the President.

Application dismissed

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