Court Declines To Annul The Amendments Made By The National Assembly To The Elections Act 2011 on December 20, and 22, 2016 on Account of Consequences of Issuing the Orders
Republic v Speaker National Assembly & 4 others Ex-parte Coalition for Reform and Democracy (CORD)  eKLR
Misc. Application No. 657 Of 2016
(As Consolidated With Judicial Review Misc. Application No. 647 of 2016)
High Court At Nairobi
G V Odunga, J
March 5, 2018
Reported By Felix Okiri
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Jurisdiction- jurisdiction of the High Court - judicial restraint - extent to which the Constitution of Kenya, 2010 required judicial restraint – instances when the Court was required to exercise judicial restraint – whether judicial restraint was a ground upon which the High Court could refuse to exercise jurisdiction- whether the Court could intervene in appropriate instances
Constitutional law – supremacy of the Constitution –custodian of the supremacy of the Constitution – where supremacy of the Constitution was threatened – where Parliament violated the procedural requirements of the supreme law of the land - which organ of the State was the custodian of the Supremacy of the Constitution – whether it was the duty of the Court to assert the authority and supremacy of the Constitution- whether the Court retained as similar power where the procedure in question was not constitutionally mandated
Constitutional law - doctrine of separation of powers - arms of government-relationship between the different arms of government- nature and scope of Court oversight over State organs - jurisdiction of the High Court in relation to the acts of other arms of Government- whether the Court had the duty and obligation to intervene in actions of other arms of Government and State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation - Constitution of Kenya, 2010, article 159(2) (e),165(2)d
Constitutional Law – separation of powers –principles applicable to the doctrine of separation of powers in Kenya’s constitutional democracy - where legislative processes and outcomes were challenged in court - whether Courts could interfere with Parliamentary processes and decisions
Constitutional Law-national values and principles of governance - public participation – where the National Assembly transacted business failed to provide opportunity or facilitate public participation - whether public participation was a requirement in the legislative process of parliament – whether parliament transacted business in breach of article 118(1) of the Constitution of Kenya in failing to provide opportunity or facilitate public participation- Constitution of Kenya, 2010, article 118(1)
Constitutional Law- sovereignty of the people - public interest vis a vis private interest – factors that the Court would consider in balancing between public interest and the private interest in determining whether to grant orders and in fashioning appropriate remedies- factors considered by Court in balancing between the public interest and the rights of successful litigants before the Court- circumstances in which public interest would weigh against the grant of relief for a violation of constitutional provisions –whether unprocedural statutory amendments were not to be annulled on account of public interest - Constitution of Kenya 2010, articles 1, 159 and 259
Legislation – parliament proceedings– Standing orders – legal nature of Standing Orders - whether Standing Orders constituted legislation which had to be obeyed and followed by Parliament - whether Parliament was required to comply with its own laws regarding the enactment of legislation - considerations which the Speaker of Parliament was to take into account in implementing any of the Standing Orders - Constitution of Kenya, 2010, articles 10(2), 124(1)
Constitutional Law – Standing orders - special motions – what matters constituted special motions –under what circumstance could a matter be admitted as a special motion - whether an urgent and exceptional business could be admitted as a Special motion – whether the impugned business involving the amendments to the Elections Act which had been dealt with in the Elections Laws (Amendment) Bill 2016 was an exceptional matter - Republic of Kenya, National Assembly, Standing order 61
Constitutional Law - Parliament- Parliamentary Powers and Privileges-nature of matters covered by Parliamentary Powers and Privileges – whether Parliamentary Powers and Privileges constituted of only matters of a civil nature - whether proceedings or decisions of Parliament or the Committee of Powers and Privileges acting in accordance with the Parliamentary Powers and Privileges Act was to be questioned in any court - Parliamentary Powers and Privileges Act, 2017, section 11
The Applicant sought the orders of certiorari, to quash the decision of the first Respondent to appoint days for Special Sittings of the National Assembly and the Senate and to proceed to conduct the proceedings and to transact business of the Houses on December 20, 22 and 28, 2016 and to amend the Elections Act 2011.
According to the Applicant, the first Respondent (The Speaker of the National Assembly) convened Special Sittings of the National Assembly on December 20, 2016 and December 22, 2016 by instrument of a Gazette Notice dated December 20, 2016. On both occasions, it was averred that the National Assembly transacted business which were not properly and lawfully contained in the Gazette Notices and were therefore held and conducted in breach of the Standing Orders and article 118(1) of the Constitution of Kenya in failing to provide opportunity or facilitate public participation.
It was also contended that the business to be transacted in the Senate during the Special Sitting on December 28, 2016 included business which did not qualify to be dealt with during a Special Sitting and that the Election Laws (Amendment) Bill (National Assembly Bill No 3 of 2015) also did not qualify to be business that could be transacted under Standing Order 29 as read with Standing Order 59 of the Standing Orders of the Senate.
- Whether the Court had jurisdiction to hear the instant matter relating to Parliamentary processes or whether the matter was contrary to separation of powers doctrine.
- Whether the Court had the duty and obligation to intervene in actions of other arms of Government and State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.
- Whether Courts could question or interfere with Parliamentary processes and decisions.
- What were the issues that were to be deliberated upon a special sitting of Parliament and whether fresh issues were introduced?
- Whether public participation was required in enactment of legislation and whether the same was complied with.
- Were the Parliamentary proceedings conducted in accordance with the Constitution and the Standing Orders?
- What factors were to be considered by the Court in balancing between public interest and the private interest in determining whether to grant orders and in fashioning appropriate remedies?
- whether Standing Orders constituted legislation which had to be obeyed and followed by Parliament
- What matters constituted special motions?
- Whether Parliamentary Powers and Privileges constituted of only matters of a civil nature?
National Assembly Standing Orders
Standing Order No 1(2)
“The decisions made in paragraph (1) shall be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that these are applicable to Kenya”.
Standing Order 29(1)
“Special sittings of the House
29. (1) Whenever during a Session the House stands adjourned, whether or not a day has been appointed for the next meeting, the Speaker may, on the request of the Leader of the Majority Party or the Leader of the Minority Party, appoint a day for a special sitting of the House.
(2) The Speaker may allow a request under paragraph (1) if the Speaker is satisfied that the business proposed to be transacted relates to the matters specified under Standing Order 61 (Special motions) or other urgent and exceptional business as the Speaker may allow.
(3) The Speaker shall, by notice in the Gazette, notify the Members of the place, date and time appointed for the special sitting of the House.
(4) Despite paragraph (1), where the proposed business to be transacted by the House requires the action of the Senate, the Speaker of the National Assembly shall, in writing, notify the Speaker of the Senate of the date appointed for the special sitting.
(5) Whenever the House meets for a special sitting under paragraph (1), the Speaker shall specify the business to be transacted on the day or days appointed and the business so specified shall be the only business before the House during the special sitting, following which the House shall stand adjourned until the day appointed in the parliamentary calendar.”
Standing Order 140(1)
A Bill, the Second Reading or Third Reading of which has been rejected may be introduced again in the next Session, or after the lapse of six months in the same Session but subject to fresh publication as provided in Standing Order 114.
Senate Standing Orders
Standing Order 29(1)
(1) Whenever during a Session the Senate stands adjourned, whether or not a day has been appointed for the next meeting, the Speaker may, on the request of the Senate Majority Leader or the Senate Minority Leader, and in each case with the support of at least fifteen Senators, appoint a day for a special sitting of the Senate.
(2) The Speaker may allow a request under paragraph (1) if the Speaker is satisfied that the business proposed to be transacted relates to the matters specified under Standing Order 62 (Definition of Special Motions) or other urgent and exceptional business as the Speaker may allow.
(3) The Speaker shall, by notice in the Gazette, notify the Senators of the place, date and time appointed for the Special Sitting of the Senate.
(4) Despite paragraph (1), where the proposed business to be transacted by the Senate requires the action of the Senate, the Speaker shall, in writing, notify the Speaker of the Senate of the date appointed for the special sitting.
(5) Whenever the Senate meets for a special sitting under paragraph (1), the Speaker shall specify the business to be transacted on the day or days appointed and the business so specified shall be the only business before the Senate during the special sitting, following which the Senate shall stand adjourned until the day appointed in the Senate calendar.”
Interpretation and General Provisions Act
“Where a written law repeals in whole or in part another written law, then, unless a contrary intention appears the repeal shall not—
(e) affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing written law had not been made.
Article 118(1) and (2)(b)
(b) Facilitate public participation and involvement in the legislative and other business of Parliament and its committees;
(1) Parliament shall exercise its legislative power through Bills passed by Parliament and assented to by the President;
(2) Any Bill may originate in the National Assembly.
(3) A Bill not concerning county government is considered only in the National Assembly, and passed in accordance with article 122 and the Standing Orders of the Assembly.
(4) A Bill concerning county government may originate in the National Assembly or the Senate, and is passed in accordance with articles 110 to 113, articles 122 and 123 and the Standing Orders of the Houses.
Parliamentary Powers and Privileges Act
No proceedings or decision of Parliament or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court.
- The Constitution of Kenya, 2010, was hailed as being a trans-formative Constitution since as opposed to a structural Constitution; it was a value-oriented one. Its interpretation and application had therefore not be a mechanical one but had to be guided by the spirit and the soul of the Constitution itself as was ingrained in the national values and principles of governance espoused in the preamble and inter alia article 10 of the Constitution. The value – oriented Constitution was concerned with intensely human and humane aspirations of personality, conscience and freedom; the structure-oriented was concerned with vastly more mundane and mechanical matters like territorial boundaries, local government, and institutional arrangements.
- The Constitution of Kenya embodied the values of the Kenyan Society, as well as the aspirations, dreams and fears of Kenya as espoused in article 10. It was not focused on presenting an organisation of Government, but rather was a value system itself hence not concerned only with defining human rights and duties of individuals and State organs, but went further to finding values and goals in the Constitution and to transform them into reality. That was the position adopted by the Supreme Court.
- A consideration of different constitutions showed that they were often written in different styles and modes of expression. Some Constitutions were highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fused that approach with declarations of general principles and statements of policy. Such principles or policy declarations signified a value system, an ethos, a culture, or a political environment within which the citizens aspired to conduct their affairs and interact among themselves and with their public institutions. Where a Constitution took such a fused form in terms, a court of law ought to have kept an open mind while interpreting its provisions. In such circumstances, the Court was inclined to favour an interpretation that contributed to the development of both the prescribed norm and the declared principle or policy; and care should have been taken not to substitute one for the other.
- A scrutiny of several Constitutions Kenya had had since independence showed that, whereas the earlier ones were designed as little more than a regulatory formula for State affairs, the Constitution of 2010 was dominated by a ‘social orientation’, and had its main theme as ‘rights, welfare, empowerment’, and the Constitution offered those values as the reference-point in governance functions.
- Certain provisions of the Constitution of Kenya had to be perceived in the context of such variable situations, and of such open texture in their scope for necessary public actions. The Court was therefore required in the performance of its judicial function to espouse the value system in the Constitution and to avoid the structural minimalistic approach. But far from being a value free system, the Constitution erected an objective system of values in its section on basic rights and thus expressed and reinforced the validity of the basic rights. That system of values, centering on the freedom of human beings to develop the society had to apply as a constitutional axiom throughout the whole legal system: it had to direct and inform legislation, administration and judicial decisions. It naturally influenced private law as well, no rule of private law was to conflict with it, and all such rules had to be construed in accordance with its spirit.
- The Constitution was not merely a formal document regulating public power. It also embodied, like the German Constitution, an objective, normative value system. As was stated by the German Federal Constitutional Court, the jurisprudence of the Federal Constitutional Court was consistent to the effect that the basic right norms contained not only defensive subjective rights for the individual but embodied at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acted as a guiding principle and stimulus for the legislature, executive and the judiciary. The same was true of the Constitution of Kenya, 2010.
- The Constitution of Kenya, 2010, just like the post Nazi German Basic Law and the post-apartheid 1996 Constitution of South Africa, as a transformative instrument was the key instrument to bringing about a better and more just society. Kenya’s Constitution of 2010 was a transformative charter. Unlike the conventional ‘liberal’ constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of the Constitution of Kenya, 2010 was to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy. That was clear right from the preambular clause which premised the Constitution on recognising the 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. That principle was fleshed out in article 10 of the Constitution, which specified the national values and principles of governance, and more particularly in Chapter Four (articles 19-59) on the Bill of Rights, and Chapter Eleven (articles 174-200) on devolved government.
- The transformative concept, in operational terms, reconfigured the interplays between the States’ majoritarian and non-majoritarian institutions, to the intent that the desirable goals of governance, consistent with dominant perceptions of legitimacy, be achieved. A depiction of that scenario had been made in relation to the unique processes of constitution-building in South Africa, a country that was emerging from an entrenched racialist governance system. At the most superficial level, South Africans had chosen to compromise the supremacy of Parliament, and correspondingly to increase the power of judges, each to an as-yet unknowable extent.
- The object of that South African choice was that a transformative constitutionalism meant a long-term project of constitutional enactment, interpretation, and enforcement committed…to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connoted an enterprise of inducing large-scale social change through non-violent political processes grounded in law.
- The history of political change in South Africa remained highly relevant for those African countries, like Kenya, which sought to evolve democratic constitutional systems out of a past of skewed and repressive governance. By the settled technique of the comparative method in law, Kenya drew from South Africa’s achievements in constitutional precedent. The Court conceived of the then current constitutional principles as incorporating the transformative ideals of the Constitution of Kenya, 2010.
- The Constitution of Kenya was a bold attempt to restructure the Kenyan State. It was a radical revision of the terms of a social contract whose vitality had long expired and which, for the most part, was dysfunctional, unresponsive, and unrepresentative of the peoples’ future aspirations.The success of that initiative to fundamentally restructure and reorder the Kenyan State was not guaranteed. It had to be nurtured, aided, assisted and supported by citizens and institutions. That was why the Supreme Court Act imposed a transitional burden and duty on the Supreme Court. Indeed, constitutional relapses occurred in moments of social transition, when individual or institutional vigilance slackened. The Courts had to patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercised their constitutional mandates, being conscious that their very infancy exposed them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order.
- Under article 1 of the Constitution, sovereign power belonged to the people and it was to be exercised in accordance with the Constitution. That sovereign power was delegated to Parliament and the legislative assemblies in the county governments; the national executive and the executive structures in the county governments; and the Judiciary and independent tribunals. There was however a rider that the said organs had to perform their functions in accordance with the Constitution. Constitution of Kenya, 2010 having been enacted by way of a referendum, was the direct expression of the people’s will and therefore all State organs in exercising their delegated powers had to bow to the will of the people as expressed in the Constitution. If anyone was in doubt, article 2 of the Constitution provided for the binding effect of the Constitution on State Organs and proceeded to decree that any law, including customary law that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid.
- Where the Court was convinced that the orders ought to have been granted, the Court ought not to have shied away from doing so. On that note, the tendency to interpret the law in a manner that would have divested courts of law of jurisdiction too readily unless the legal provision in question was straightforward and clear was to be discouraged since it would have been better to err in favour of upholding jurisdiction than to turn a litigant away from the seat of justice without being heard; the jurisdiction of courts of law had to be guarded jealously and was not to be dispensed with too lightly and the interests of justice and the rule of law demanded that.
- The general provisions governing constitutional interpretation were that in interpreting the Constitution, the Court was to be guided by the general principles that;
- The Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts therefore had to endeavor to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document;
- The provisions touching fundamental rights had to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that the people of Kenya enjoyed their rights. Kenya’s young democracy not only functioned but also grew and the will and dominant aspirations of the people prevailed. Restrictions on fundamental rights had to be strictly construed.
- The Constitution was a living thing: it adopted and developed to fulfill the needs of living people whom it both governed and served. Like clothes, it was to be made to fit people. It was never to be strangled by the dead hands of long discarded custom, belief, doctrine or principle. It had to, of necessity, adapt itself; it could not lay still. It had to adapt to the changing social conditions. The Constitution of any country of the world was not to represent a mere body or skeleton without a soul or spirit of its own. The Court did not like to discard the possibility of a court adopting broader view of using the living tree principle of the interpretation of the Constitution where there were amongst others; ambiguity, unreasonableness, obvious imbalance or lack of proportionality or absurd situation. The Constitution being a living tree with roots, whose branches were expanding in natural surroundings, was to have natural and robust roots to ensure the growth of its branches, stems, flowers and fruits. The Constitution was a living document. It was a house with many rooms, windows and doors. It was conservative enough to protect the past but flexible enough to advocate new issues and the future.
- The doctrine of constitutionality of statutes or legality of parliamentary processes when in conflict with the constitutional obligation of the Court to investigate the constitutionality of a statute had to give way to the latter. When any of the state organs stepped outside its mandate, the Court would not have hesitated to intervene and that was appreciated. The Court was vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as was provided for under article 165(3) of the Constitution. The Court had the duty and obligation to intervene in actions of other arms of Government and State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. In the instant case, the doctrine of separation of power did not inhibit the Court's jurisdiction to address the Petitioner's grievances so long as they stemmed out of alleged violations of the Constitution. In fact the invitation to do so was most welcome as that was one of the core mandates of the Court.
- Once a Constitution was written, it was supreme. When the makers of Kenya’s Constitution decided to put it in writing and by its provision thereof created the three arms of Government namely the Executive, the Legislature and the Judiciary, they intended that the Constitution was to be supreme and all those organs created under the Constitution were subordinate and subject to the Constitution.
- Whereas all State organs, for instance, the two Chambers of Parliament, were under obligation to discharge their mandates as described or signaled in the Constitution, a time came such as that, when the prosecution of such mandates raised conflicts touching on the integrity of the Constitution itself. It was the Court’s perception that all reading of the Constitution indicated that the ultimate judge of ‘right’ and ‘wrong’ in such cases, short of a solution in plebiscite, was only the Courts.
- Article 3(1) of the Constitution imposed an obligation on every one, without exception, to respect, uphold and defend the Constitution. That obligation was further emphasized with regard to the exercise of judicial authority, by article 159(2) (e) which required that in the exercise of judicial authority, the Courts had to pay heed to the purpose and principles of the Constitution being protected and promoted. However, all statutes flowed from the Constitution, and all acts done had to be anchored in law and be constitutional, lest they had to be declared unconstitutional, hence null and void. Thus, it could not be said that the Court could not stop a constitutionally-guided process. What the Court could not have done was to extend time beyond that which was decreed by the Constitution. However, a process provided for by the Constitution and regulated by statute could be stayed, as long as it was finally done within the time-frame constitutionally authorized.
- To exempt a public authority from the jurisdiction of the Courts of law was, to that extent, to grant doctorial power. That was the justification for the strong; it could have been rebellious stand which the courts had made against allowing Acts of Parliament to create pockets of uncontrollable power in violation of the rule of law. The law’s delay together with its uncertainty and expense, tempted governments to take short cuts by elimination of the Courts. But if the courts were prevented from enforcing the law, the remedy became worse than the disease. The Judges, with their eye on the long term and the rule of law, had made it their business to preserve a deeper constitutional logic, based on their repugnance to allowing any subordinate authority to obtain uncontrollable power.
- The principle underlying the exclusive jurisdiction of the Court was that disputes that involved important questions that related to the sensitive areas of separation of powers had to be decided by the Court only. Therefore, the closer the issues to be decided were to the sensitive area of separation of powers, the more likely it was that the issues could have fallen within exclusive jurisdiction of the Court. It followed that where a dispute would have required a court to decide a crucial political question and thus intrude into the domain of Parliament, the dispute was more likely be one for the exclusive jurisdiction of the Court. A distinction was to be drawn between constitutional provisions that imposed obligations that were readily ascertainable and were unlikely to give rise to disputes, on the one hand, and those provisions which imposed the primary obligation on Parliament to determine what was required of it, on the other. In the case of the former, a determination whether those obligations had been fulfilled did not call upon a court to pronounce upon a sensitive aspect of the separation of powers. An example of such a provision was the provision that required statutes to be passed by a specified majority. The criteria set out were clear, and a failure to comply with them would have led to invalidity. When a court decided whether those obligations had been complied with, it did not infringe upon the principle of the separation of powers. It simply decided the formal question whether for example, the two-thirds majority required to pass the legislation was complied with.
- A distinction was to be drawn between constitutional provisions that imposed obligations that were readily ascertainable and were unlikely to give rise to disputes, on the one hand, and those provisions which imposed the primary obligation on Parliament to determine what was required of it, on the other. In the case of the former, a determination whether those obligations had been fulfilled did not call upon a court to pronounce upon a sensitive aspect of the separation of powers. By contrast, where the obligation required Parliament to determine in the first place what was necessary to fulfill its obligation, a review by a court whether that obligation had been fulfilled, trenched on the autonomy of Parliament to regulate its own affairs and thus the principle of separation of powers. For example, while a primary obligation was imposed on Parliament to facilitate public involvement in its legislative and other processes, including those of its committees, such obligation did not tell Parliament how to facilitate public involvement but left it to Parliament to determine what was required of it in that regard.
- A review by a court of whether Parliament had complied with its obligation called upon a court to intrude into the domain of a principal legislative organ of the state. Under Constitution of Kenya, 2010, that intrusion was reserved for the Court only. A construction of the exclusive jurisdiction of the Court to decide whether Parliament had complied with its constitutional obligation to facilitate public involvement in its legislative processes was therefore consistent with the principles underlying the exclusive jurisdiction of the Court. An order declaring that Parliament had failed to fulfill its constitutional obligation to facilitate public involvement in its legislative process and directing Parliament to comply with that obligation constituted judicial intrusion into the domain of the principle legislative organ of the state. Such an order would inevitably have had important political consequences. Only the instant Court had that power.
- The question whether Parliament had fulfilled its legislative obligations therefore required the instant Court to decide a crucial separation of powers question and that was manifestly within the exclusive jurisdiction of the instant Court under the Constitution. In Kenya’s constitutional democracy, the courts were the ultimate guardians of the constitution. They not only had the right to intervene in order to prevent the violation of the Constitution, they also had the duty to do so. It was in the performance of that role that courts were more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention. It was a necessary component of the doctrine of separation of powers that courts had a constitutional obligation to ensure that the exercise of power by other branches of government occurred within constitutional bounds.
- When any of the State Organs or State Officers stepped outside its mandate, the Court would not hesitate to intervene. The instant Court was vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as was provided for under article 165(3) of the Constitution and had the duty and obligation to intervene in actions of other State Organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.
- The instant application alleged a violation of the Constitution by the Respondents, it was the court’s finding that the principle of independence of the Legislature did not inhibit the Court's jurisdiction or prohibit it from addressing the Applicant’s grievances so long as they stemmed out of alleged violations of the Constitution. To the contrary, the invitation to do so was most welcome as that was one of the core mandates of the Court.
- The Court’s finding was fortified under the principle that the Constitution was the Supreme Law of the country and all State Organs had to function and operate within the limits that were prescribed by the Constitution. In cases where they stepped beyond what the law and the Constitution permitted them to do, they could not seek refuge in independence and hide under that cloak or mask of inscrutability in order to escape judicial scrutiny.
- Where a statute donated powers to an authority, the authority ought to have ensured that the powers that it exercised were within the four corners of the statute and ought not to extend its powers outside the statute under which it purported to exercise its authority. The general principle remained however, that a public authority was not to vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Courts were empowered to look into the question whether the tribunal in question had not stepped outside the field of operation entrusted to it. Consequently, where the law exhaustively provided for the jurisdiction of a body or authority, the body or authority had to operate within those limits and ought not to have expanded its jurisdiction through administrative craft or innovation. Further, courts were not to be rubber stamps of the decisions of administrative bodies. However, if Parliament gave great powers to statutory bodies, the courts had to allow them to exercise it. The Courts had to nevertheless be vigilant to see that the said bodies exercised those powers in accordance with the law.
- The doctrine of independence had to be read in the context of Kenya’s Constitutional framework and where the adoption of the doctrine clearly militated against the constitutional principles, that doctrine or principle had to bow to the dictates of the spirit and the letter of the Constitution and the enabling legislation and it was not only the role of the Courts to superintend the exercise of such powers but their constitutional obligation to do so. In effect the Legislature’s independence under the Constitution only remained valid and insurmountable as long as it operated within its legislative and constitutional sphere. Once it left its stratosphere and entered the airspace outside its jurisdiction of operation, the Courts were then justified in scrutinizing its operations.
- The Constitution dispersed powers among various constitutional organs and when any of those organs stepped out of its area of operation, the court would not have hesitated to state so. It was the instant Court which was, by virtue of article 165(d), clothed with jurisdiction to hear any question concerning the interpretation of the Constitution including the determination of:
- the question whether any law was inconsistent with or in contravention of the Constitution;
- the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution;
- The Constitution instilled a culture of justification, in which every exercise of power was expected to be justified. Britain as opposed to Kenya did not have a written Constitution hence the sovereignty of Parliament. Kenya had a Constitution whose supremacy was set out therein as unambiguous and unequivocal. In a democratic Country governed by a written Constitution, it was the Constitution which was supreme and sovereign. It was no doubt true that the Constitution itself could be amended by the Parliament, but that was possible because the Constitution itself made provision in that behalf, and the amendment of the Constitution could be validly made only by following the procedure prescribed by the Constitution. That showed that even when Parliament purported to amend the Constitution; it had to comply with the relevant mandate of the Constitution itself. Legislators, Ministers and Judges took oath of allegiance to the Constitution for it was by the relevant provisions of the Constitution that they derived their authority and jurisdiction and it was to the provisions of the Constitution that they owed their allegiance. Therefore, there could be no doubt that the sovereignty which could be claimed by the Parliament in England could not be claimed by any Legislature in the literal absolute sense.
- Unlike the English position where judges had to always obey, or bow to what Parliament legislated was because Parliament was the supreme organ in that legal system. Even in England, judges had refused to blindly apply badly drafted laws and had in some cases filled the gaps in order to complete or give effect to the intention of the legislature. In the case of Kenya it was the written Constitution which was supreme and any law that was inconsistent with the Constitution was void to the extent of the inconsistency. The first loyalty of Kenyan courts was therefore to the Constitution and in deserving cases; the courts were at liberty to strike down laws that violated the Constitution. That holding was even more appropriate in cases where the Court was called upon to uphold the provisions of the Constitution.
- It was clear that a special sitting of Parliament was even from its own name not an ordinary sitting. However, it was the discretionary power of the Speaker of either House to decide whether the Leader of the Majority Party or the Leader of the Minority Party had made a case warranting the summoning of a special sitting of the House. Therefore as long as the Speaker complied with the Constitution and the law, the Court was not entitled to interfere simply because had the Court been the one considering the request it would have arrived at a different conclusion. Nevertheless such a decision amounted to an implementation of the law being standing orders and therefore fell within the contemplation of article 10(1) of the Constitution. That must have been so because article 124(1) which provided for the powers of Parliament to make Standing Orders enjoined Parliament to enact Standing Orders for the orderly conduct of their proceedings.
- Having made such a law, Parliament could not ignore that law. Parliament was bound by the law as much as any other person or institution was. Because Standing Orders arose out of the Constitution, and because the Constitution mandated Parliament to act in accordance with Standing Orders, they could not be regarded merely as ‘rules of a club’. Standing Orders constituted legislation which had to be obeyed and followed. Common sense dictated that Parliament was required to comply with its own laws regarding the enactment of legislation. In other jurisdictions, the courts had applied the principle that legislation which was enacted by a legislative body without compliance with the existing law in respect to the enactment of legislation was to be declared void by the courts, even where the Constitution provided for a parliamentary democracy form of government.
- It would have been illogical to contend that as the Standing Orders were recognized by the Constitution, the Court, which had the mandate to authoritatively interpret the Constitution itself, was precluded from considering their constitutionality merely because the Standing Orders were an element in the internal procedures of Parliament. As a legal and constitutional principle, Courts had the competence to pronounce on the compliance of a legislative body, with the processes prescribed for the passing of legislation.
- In a constitutional democracy, it was the Courts, not Parliament that determined the lawfulness of actions of bodies, including Parliament. The Judiciary was the guardian of the Constitution and the rights of citizens. A State was sovereign and it was not for the Courts to pass upon the policy or wisdom of legislative will. The Courts were not to question the wisdom of enactments which were within the competence of the Legislatures, but it was the high duty of the Court to insure that the Legislatures did not transgress the limits of their constitutional mandate and engage in the illegal exercise of power. If then, the Courts were to regard the Constitution, and the Constitution was superior to any ordinary Act of the Legislatures, the Constitution, and not such ordinary Act, had to govern the case to which they both applied.
- It was the instant Court which was, by virtue of article 165(d), clothed with jurisdiction to hear any question concerning the interpretation of the Constitution including the determination of: the question whether any law was inconsistent with or in contravention of the Constitution; and the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution. That was the mandate the Court bore in mind as it sought to find answers to the issues raised in the petition. In passing the Constitution, Kenyans gave the responsibility of making laws to Parliament. The decision of the people had to be respected, so that the Court could only interfere with the work of Parliament in situations where Parliament acted in a manner that defied logic and violated the Constitution.
- The Speaker in implementing any of the Standing Orders had to be guided by article 10(2) of the Constitution and that was particularly so where what was being undertaken was not in the ordinary course of sitting but was a special sitting as was the case herein. In that event the Speaker was required to adhere to the values and principles of national governance. He was expected to be transparent and accountable not only to the Members of Parliament but to the public at large. Transparency required that the Speaker in the notice summoning such a special sitting disclosed why in his view such a sitting was warranted since that was the only way in which he could be transparent in his finding that the reasons given for such action were satisfactory.
- The phrase applied in the two Standing Orders was ‘if the Speaker was satisfied’. That did not imply arbitrariness in decision-making. That phrase fell in the same category as ‘in the opinion’ or ‘if it appeared’. The phrase ‘if it appeared’ did not mean that the impugned decision was put beyond challenge. The scope available to the challenger depended very much on the subject-matter with which the person exercising the authority was dealing. If such a decision was found not to have been done in good faith, or if the person acting acted on extraneous considerations which ought not to have influenced him, or if he plainly misdirected himself in fact or in law, the court could interfere; but when he honestly took a view of the facts or the law which could reasonably be entertained, then his decision was not to be set aside simply because thereafter someone thought that his view was wrong.
- To consider was to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion. ‘Consider’ implied looking at the whole matter before reaching a conclusion. It was improper and not fair that an executive authority who was by law required to consider, to think of all the events before making a decision which immediately resulted in substantial loss of liberty left the Appellant and others guessing about what matters could have persuaded him to decide in the manner he decided.
- A proper consideration of a matter required that the tribunal considered all aspects of the case and they could only be said to have been considered when the Speaker laid bare what informed his decision to summon the special sitting, otherwise it might have been construed as having been an arbitrarily made.
- Whereas, the decision whether or not the facts disclosed in the request for a special sitting merited such a decision remained that of the Speaker, transparency and accountability demanded that he disclosed the basis for arriving at such a decision. To hold that the Speaker was the sole judge when it came to the exercise of such powers and that he was not accountable to anybody when doing so would be to throw the rule of law out of the window and that would amount to whittling away the Constitutional safeguards provided under articles 10 and 47 of the Constitution. Accordingly the Courts were empowered to investigate allegations of abuse of power and improper exercise of discretion.
- The issue whether or not a judge was to grant leave to appeal in any particular case was an exercise of judicial discretion. That was agreed on all sides. But being judicial, the discretion had to be exercised according to reason, not capriciously and not according to private likes or dislikes or private opinion.
- The powers of public authorities were essentially different from those of private persons. A man making his will could subject to any right of his dependants dispose of his property just as he wished. He could act out of malice or a spirit of revenge, but in law, that did not affect the exercise of his power. In the same way, a private person had an absolute power to allow whom he liked to use his land regardless of his motives. That was unfettered discretion. But a public authority could not do any of those things unless it acted reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion, was inappropriate to a public authority which possessed powers solely in order that it was to use them for the public good. But for public bodies, the rule was opposite and so of another character altogether. It was that any action to be taken had to be justified by positive law. A public body had no heritage of legal rights which it enjoyed for its own sake, at every turn, all of its dealings constituted the fulfillment of duties which it owed to others; indeed, it existed for no other purpose. But in every such instance and no doubt many others where a public body asserted claims or defences in court, it did so, if it acted in good faith, only to vindicate the better performances of the duties for whose merit it existed. It was in that sense that it had no rights of its own, no axe to grind beyond its public responsibility; a responsibility which defined its purpose and justified its existence. Under Kenyan law, that was true of every public body. The rule was necessary in order to protect the people from arbitrary interference by those set in power over them.
- In the instant case, it was stated that the respective Leaders of Majority wrote to the respective Speakers of the National Assembly and the Senate requesting for special sittings of the said Houses which requests the Speakers approved. However whereas the Gazette Notices issued pursuant to the said approvals were exhibited, the decisions approving the requests were not exhibited so that no-one could say what factors were considered by the two Speakers in satisfying themselves that the requests for the special sittings were warranted. The Applicant’s case was that the said Special Sittings of Parliament and the Senate did not meet the threshold for calling the same. Under section 107 (1) of the Evidence Act, whoever desired any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserted, had to prove that those facts existed.
- The legal maxim omnia praesumuntur legitime facta donec probetur in contrarium provided that all things were presumed to have been legitimately done, until the contrary was proved. However, the proving of a negative task was always difficult and often impossible, and was the most exceptional burden to impose upon a litigant. The burden of proof in any particular case depended on circumstances in which the claim arose.
- As was applied to judicial proceedings, the phrase ‘burden of proof’ had two distinct and frequently confused meanings:
- the burden of proof as a matter of law and pleading – the burden of establishing a case, whether by preponderance of evidence, or beyond reasonable doubt; and
- the burden of proof in the sense of adducing evidence. The onus probandi rested, before evidence was gone into, upon the party who asserted the affirmative of the issue; and it rested, after evidence was gone into, upon the party against whom the tribunal, at the time the question arose, would give judgment if no further evidence were adduced.
- The general rule was that he who alleged had to prove applied. In the instant case, the facts which the Speakers considered to arrive at their decisions were peculiarly within their knowledge and the principle of transparency required that the same was to be disclosed. In the absence of such disclosure the Court had no material on the basis of which the Court could find what the said Speakers considered. Standing Order 61 specifically enumerated what constituted special motions. Those were matters which sought resolution of the House to approve an appointment or re-appointment in accordance with part XI of the Constitution with respect to:-
- public appointments;
- matters which dealt with extension of state of emergency;
- extension of the term of Parliament when Kenya was at war;
- matters which amended or vetoed a special bill passed by the Senate;
- Declaration of war;
- Removal of President on grounds of incapacity;
- impeachment of the President;
- vacancy in the office of the deputy president;
- removal of the Deputy President;
- dismissal of a cabinet secretary;
- alteration of the boundaries of a county;
- borrowing by national government;
- division of revenue;
- approval of decision to stop the transfer of funds to a State organ or any other public entity;
- Deployment of national forces outside Kenya;
- deployment of Defence Forces inside Kenya;
- petition for the removal of a Member of a Commission or a holder of an independent office; and
- enactment of consequential legislation.
It was clear that the matters contemplated had to be matters which were time bound or matters of great public importance whose delay in dealing with could plunge the country into a crisis.
- In the instant case, it was contended on behalf of the first and second Respondents that the Election Law (Amendment) Bill was a matter of public importance and that the Speaker was right and within the law to convene a Special Sitting of the National Assembly. The Applicant however contended that following the establishment of the Joint Parliamentary Committee on matters relating to the Independent Electoral and Boundaries Commission (a committee of both Houses as provided in article 124(2) of the Constitution of Kenya), debate and business relating to Election Laws (Amendment) Bill (National Assembly Bill No 3 of 2015) was stopped and proposals contained in the said Bill discarded and rejected. It was therefore the Applicant’s case that as the business contained in the Gazette Notices did not relate to matters enumerated under Part XIII of the Standing Orders of the National Assembly and more specifically, Standing Order 61, which defined Special Motions, the business was neither urgent nor exceptional since the Bill was old business that had been carried over from a previous session of the National Assembly in 2015. During its pendency in the fourth session of the National Assembly it had been withdrawn and was superseded by the Election Laws (Amendment) Bill 2016 which enacted an elaborate and meticulous bipartisan process that included the establishment of a Joint Parliamentary Committee. The business was also not exceptional as it involved the amendments to the Elections Act which had been dealt with in the Elections Laws (Amendment) Bill 2016.
- It was not in dispute that the matter which dealt with the impending national elections could have been urgent. It was also not necessary to attempt to identify with precision what constituted ‘urgent and exceptional business’for the purposes of the Order or to formulate in advance in what circumstances they could have arisen. The question whether they existed depended on the facts of each case and was a matter to be considered on a case-by-case basis. However, the circumstances that were alleged to have constituted the matter as urgent and exceptional business had to be laid bare for all to see in the constitutional spirit of transparency, accountability and good governance. Once that was done, the Court would have been very reluctant to interfere. Parliament as a law making body had to not only set standards for compliance with constitutional provisions and with its own Rules but also had to ensure that in its proceedings, the spirit of the Constitution was realized. It therefore followed that if any of the crucial stages of its proceedings such as those decreed by the Constitution were flawed, that vitiated the entire process and the product thereof.
- In a jurisdiction such as Kenya in which the Constitution was supreme, the Court had jurisdiction to intervene where there had been a failure to abide by Standing Orders which had been given constitutional underpinning under article 124(1. However, the court had to exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.
- The Courts were not concerned with purely procedural matters which regulated what happened within the four walls of the National Assembly. But the Courts would most certainly have adjudicated on any issues which adversely affected any rights which were categorically protected by the Constitution where the Standing Orders purported to regulate any such rights. Over their own internal proceedings, the jurisdiction of the National Assembly was exclusive, but, it was for the Courts to determine whether or not a particular claim of privilege fell within such jurisdiction.
- In a jurisdiction such as Kenya in which the Constitution was supreme, the Court had jurisdiction to intervene where there had been a failure to abide by Standing Orders which had been given constitutional underpinning under article 124(1) of the Constitution. However, the court had to exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.
- Where the Constitution decreed a specific procedure to be followed in the enactment of legislation, both Houses of Parliament were bound to follow that procedure. If Parliament violated the procedural requirements of the supreme law of the land, it was for the courts of law, not least the Supreme Court to assert the authority and supremacy of the Constitution. It would have been different if the procedure in question were not constitutionally mandated. The Court would be averse to questioning Parliamentary procedures that were formulated by the Houses to regulate their internal workings as long as the same did not breach the Constitution. Where however, one of the Houses was alleging that the other had violated the Constitution, and moved the Court to make a determination by way of an Advisory Opinion, it would have been remiss of the Court to look the other way.
- In the instant case, the circumstances were that the Respondent did not justify their action of calling for a special sitting of the Houses, a process which the Standing Orders clearly took seriously and was only meant to address grave issues of national interest. In light of the undisputed averments that the debate surrounding the said business had been shelved, that there was no evidence that the business for which Parliament was recalled met the threshold prescribed in Standing Order 29.
- The first Respondent fell foul of the ejusdem generis rule because Standing Order 29 of the National Assembly did not give the first Respondent an absolute discretion and that to propose otherwise would have defeated the purpose of the Standing Order. The only business the first Respondent could have allowed under the Standing Order was restricted to business that may have involved the same type or class of business as those contained in Standing Order 61, under which the Special Motions were all anchored on various articles of the Constitution and required the intervention of the National Assembly. The only motion in relation to enactment of legislation was provided in Standing Order 61(b) (iii) which related to amending or vetoing of a special Bill passed by the Senate. However, the enactment of legislation could under certain circumstances amount to urgent and exceptional business. Each case had to be determined on its own peculiar facts.
- The National Assembly transacted business which were not properly and lawfully contained in the Gazette Notices and were therefore held and conducted in breach of the Standing Orders. Pursuant to Standing Order 29(5), the Speaker was obliged to specify the business to be transacted on the day or days appointed and the business so specified was to be the only business before the House during the special sitting, following which the House was to stand adjourned until the day appointed in the parliamentary calendar. It was therefore clear that no other business was to be transacted as a special sitting of the House save for the ones specified by the Speaker. From the relevant Gazette Notices, it was clear that the only business that was to be transacted by both Houses was the consideration of the Election Laws (Amendment) (No. 3) Bill, 2015 (National Assembly Bills No. 63 of 2015).
- However, from the copy of the Hansard Report exhibited, the National Assembly on December 20, 2016 had also listed in the Order of Business for that day the Motion on the Report of the Committees of the whole House on the County Governments (Amendment) Bill (Senate Bill No. 4 of 2016); the Motion on Adoption of the Report on Investigation into the Ownership of Mombasa Cement Limited land in Kilifi and the Motion for Adoption of the Report on Ratification of the Agreement between the Government of the Republic of Kenya and the United States. Any other business apart from the one that was expressly specified by the Speaker was irregularly sneaked into the House.
- Notwithstanding the above, the Courts were not concerned with purely procedural matters which regulated what happened within the four walls of the National Assembly. But the Courts were most certainly concerned with adjudicating on any issues which adversely affected any rights which were categorically protected by the Constitution where the Standing Orders purported to regulate any such rights. By acting in breach of a Standing Order, which breach did not infringe on any constitutional right which was justiciable before the Courts, the remedy for such breach could only be sought and obtained from the National Assembly itself.
- It had not been alleged that the ‘strange’ business that was sneaked in the House affected any rights guaranteed by the Constitution. In any case apart from the Motion dealing with the County Governments Amendments Bill, the other two Bills were deferred. The Applicant’s position was that the Constitution of Kenya required that Parliament in the exercise of its legislative powers followed the procedures for enacting legislation which included compliance with Standing orders of the Houses of Parliament as provided in articles 109, 118 and 124(1) of the Constitution of Kenya, and in breach of the Standing Orders, the first and second Respondents contravened the said provisions of the Constitution. It was further alleged that the first and second Respondents contravened article 118(1) of the Constitution of Kenya in failing to provide opportunity or facilitate public participation and involvement in the legislative and other business of the National assembly in regard to proposed amendments to the Elections Act, 2010 and in particular as related to the use of technology in the electoral system.
- In the overall scheme of Kenya’s Constitution, the representative and participatory elements of Kenya’s democracy should not have been seen as being in tension with each other. They had to be seen as mutually supportive. General elections, the foundation of representative democracy, would be meaningless without massive participation by the voters. The participation by the public on a continuous basis provided vitality to the functioning of representative democracy. It encouraged citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they were made. It enhanced the civic dignity of those who participated by enabling their voices to be heard and taken account of. It promoted a spirit of democratic and pluralistic accommodation calculated to produce laws that were likely to be widely accepted and effective in practice. It strengthened the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acted as a counterweight to secret lobbying and influence peddling.
- Participatory democracy was of special importance to those who were relatively disempowered in a country like Kenya where great disparities of wealth and influence existed. Therefore Kenya’s democracy included as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that was contemplated was partly representative and partly participatory, was accountable, responsive and transparent and made provision for public participation in the lawmaking processes. Parliament had to therefore function in accordance with the principles of Kenya’s participatory democracy.
- When legislation had been challenged on the grounds that Parliament had not adopted it in accordance with the provisions of the Constitution, courts had to consider whether in enacting the law in question, Parliament had given effect to its constitutional obligations. If it were to hold in any given case that Parliament had failed to do so, it was obliged by the Constitution to say so. And insofar as that constituted an intrusion into the domain of the legislative branch of government, that was an intrusion mandated by the Constitution itself.
- When it was appropriate to do so, courts could, where there was need to; use their powers to make orders that affected the legislative process. Therefore, while the doctrine of separation of powers was an important one in Kenya’s constitutional democracy, it could not be used to avoid the obligation of a court to prevent the violation of the Constitution. The right and the duty of the Court to protect the Constitution were derived from the Constitution, and the Court could not shirk from that duty. The justification for the course was to be found in article 2(4) of the Constitution of Kenya, 2010 which provided that any law which included customary law, which was inconsistent with the Constitution, was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid.
- One of the golden threads that ran through the regime of the Constitution of Kenya, 2010 was public participation in governance and the conduct of public affairs. The preamble to the Constitution recognized the 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. It also acknowledged the people’s sovereign and inalienable right to determine the form of governance of their country. Article 1 bestowed all the sovereign power on the people to be exercised only in accordance with the Constitution. One of the national values and principles of governance was that of inclusiveness and participation of the people.
- It was implicit, if not explicit, from the duty to facilitate public participation in the law-making process that the Constitution valued public participation in the law-making process. The duty to facilitate public participation in the law-making process would have been meaningless unless it had sought to ensure that the public participated in that process. The very purpose in facilitating public participation in legislative and other processes was to ensure that the public participated in the law-making process consistent with Kenya’s democracy. Indeed, it was apparent from the powers and duties of the legislative organs of State that the Constitution contemplated that the public was to participate in the law-making process.
- Public participation was one of the national values and principles of governance enunciated in article 10 of the Constitution which bound all State organs, State officers, public officers and all persons whenever any of them inter alia enacted, applied or interpreted any law. One of the principles thereunder was the participation of the people. Article 10 (2) of the Constitution was justiciable and enforceable immediately. For avoidance of doubt, the values espoused in article 10 (2) were neither aspirational nor progressive; they were immediate, enforceable and justiciable. The values were not directive principles.
- Kenyans had not promulgated the Constitution of Kenya, 2010 in order to have devolution, good governance, democracy, rule of law and participation of the people to be realized in a progressive manner in some time in the future; it could never have been the intention of Kenyans to have good governance, transparency and accountability to be realized and enforceable gradually. Likewise, the values of human dignity, equity, social justice, inclusiveness and non-discrimination could not be aspirational and incremental, but were justiciable and immediately enforceable. Article 259(1)(a) enjoined all persons to interpret the Constitution in a manner that promoted its values and principles.
- Article 10(2) of the Constitution was justiciable and enforceable and violation of the article could found a cause of action either on its own or in conjunction with other constitutional articles or statutes as was appropriate. In fact article 118(1) and (2)(b) of the Constitution expressly provided thatParliament had to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
- The failure to seek the public input could not have been brushed aside. The obligation to facilitate public involvement was a material part of the lawmaking process. It was a requirement of manner and form. Failure to comply with that obligation rendered the resulting legislation invalid. The Court not only had a right but also a duty to ensure that the law-making process prescribed by the Constitution was observed. And if the conditions for law-making processes had not been complied with, it had the duty to say so and declare the resulting statute invalid. The argument that the only power that the Court had in the instant case was to issue a declaratory order had to be rejected. The Court not only had the power but the obligation to determine whether a particular legislation was in fact and in substance enacted in accordance with the Constitution and not to just satisfy itself as to the formalities or the motions of doing so. Therefore, where the principle of public participation was not inculcated in the process of legislative enactment, the process of such enactment could not be said to meet the constitutional threshold.
- Article 109 of the Constitution provided that Parliament was required to conduct its business according to its Standing Orders. The article provided that Parliament had to exercise its legislative power through Bills passed by Parliament and assented to by the President.The stages through which a bill passed before being enacted were to be found in the National Assembly Standing Orders 120 to 139, which were made pursuant to the provisions of articles 109 to 113, 119, 122 & 123 of the Constitution and those stages were:
- The publication of the Bill;
- Determination through concurrence of speakers of both houses on whether or not the Bill concerned County Governments;
- First Reading of the Bill;
- Committal of the Bill to the relevant Committee to commit it to the Public Participation;
- Second Reading of the Bill;
- Committal of the Bill to the Committee of the whole house;
- Third Reading of the Bill and passage into law
- It was therefore clear that public participation took place between the First Reading and the Second Reading. In that case, it was alleged that new provisions had been introduced to enact a new section 44A of the Elections Act 2011. That allegation was not expressly denied. Whereas the Court agreed that where minor amendments were introduced, it might not have been necessary to subject them to public participation; it was the view of the Court that substantive amendments to the Bill could not be introduced at the Committee stage without subjecting them to public participation. Otherwise, nothing would prevent Parliament from purporting to introduce such provisions by amendment in order to defeat the constitutional requirements for public participation.
- For any amendments to be introduced on the floor of the House subsequent to public participation, the amendments had to be the product of the public participation and ought not to have been completely new provisions which were neither incorporated in the Bill as published nor the outcome of the public input. Once structured processes of consultation were put in place, with tangible consequences for the legislative process and of central importance to the community, the principle of participatory democracy required the establishment of appropriately formal lines of communication, at least to clarify, if not to justify, the negation of those consequences. It was constitutionally incumbent on the Legislature to communicate and explain to the community the fact of and the reasons for the complete deviation from what the community had been led to believe was to be the fruit of the earlier consultation, and to pay serious attention to the community's response.
- Arms-length democracy was not participatory democracy, and the consequent and predictable rupture in the relationship between the community and the Legislature tore at the heart of what participatory democracy aimed to achieve. After making a good start to fulfill its obligation to facilitate public involvement, the Legislature stumbled badly at the last hurdle. It ended up failing to exercise its responsibilities in a reasonable manner, with the result that it seriously violated the integrity of the process of participatory democracy. In choosing not to face the music (which, incidentally, it had itself composed) it had breached the constitutional compact requiring mutuality of open and good-faith dealing between citizenry and government, and thereby rendered the legislative process invalid.
- Given that the purpose of participatory democracy was not purely instrumental; the critical question was whether further consultation would have produced a different result. It might well have done. For its part, the Legislature might have been convinced that the continuation of an unsatisfactory status quo would have been better even if just to buy time for future negotiations than to invite a disastrous break-down of relations between the community and the government. Yet even if the result had been determinable in advance, respect for the relationship between the Legislature and the community required that there was to be more rather than less communication. There was nothing on the record to indicate that the Legislature took any steps whatsoever even to inform the community of the about-turn, let alone to explain it. That was not the sort of information that should have been discovered for the first time from the newspapers, or from informal chit-chat. By introducing totally new and substantial amendments on the floor of the House, Parliament not only set out to circumvent the constitutional requirements of public participation but, with due respect, mischievously short-circuited and circumvented the letter and the spirit of the Constitution.
- Where a Bill had been rejected by the Assembly and a fresh Bill introduced as opposed to mere amendments, the principle of public participation had to equally apply. Unless that was so, the principle might have been defeated by the Assembly simply rejecting a Bill in which the public had had an input with its own Bill disregarding the input by the public and not subjecting it to public participation. That would have defeated the very principle of public participation.
- Once structured processes of consultation had been put in place, with tangible consequences for the legislative process and of central importance to the community, the principle of participatory democracy required the establishment of appropriately formal lines of communication, at least to clarify, if not to justify, the negation of those consequences. It was constitutionally incumbent on the Legislature to communicate and explain to the community the fact of and the reasons for the complete deviation from what the community had been led to believe was to be the fruit of the earlier consultation, and to pay serious attention to the community's response. If Parliament had intended to deviate from the draft Bill that was subject to public participation in material respect, the public was entitled to a clarification, if not a justification, for the deviation from what the public had been led to believe was to be the fruit of the earlier consultation, and to pay serious attention to the public's response. In other words in those circumstances a further public participation regarding the fresh matters was mandatory.
- It was clear from the Hansard that several amendments were introduced on the floor of the House at the Committee Stage including the reduction of the time for the IEBC to procure equipment, the establishment of a complimentary mechanism for identification of voters, the suspension of the commencement date for the Elections Campaign Financing Act as well as the suspension of the clause dealing with qualifications for Members of the County Assemblies and Members of Parliament. Such a Bill ought to have been subjected to public participation in light of the new provisions introduced therein.
- According to the Applicant, the report of the Hansard for the material days demonstrated that the business of both the National Assembly and the Senate were not conducted in an open manner and in public and more particularly excluded the media and members of the public from the Special Sittings. In what was an aberration to Kenya’s history and parliamentary business and the operations of both Houses the precincts of Parliament were barricaded by the police and paramilitary security forces. That tarnished and tainted the image of Parliament as a people’s democratic institution with elected representatives of the people enjoying the power and privileges of Parliament.
- If the public and any media were excluded from the said sitting without exceptional circumstances justifying such action, such proceedings would have amounted to a violation of the Constitution. The Speaker was under a constitutional obligation to give the reasons which in his view warranted such action.
- Apart from the exclusion of the public and the media, article 94(4) imposed the duty on Parliament to protect the Constitution and to promote the democratic governance of the Republic. Parliament had to demonstrate respect to the people and bring honor to the nation and dignity to the institution of the National Assembly and the Senate. Although members of Parliament were independent and had the freedom to say anything on the floor of the House, they were however, obliged to exercise and enjoy their Powers and Privileges with restraint and decorum and in a manner that gave honor and admiration not only to the institution of Parliament but also to those who, inter-alia elected them, those who listened to and watched them debating in the public gallery and on television and read about them in the print media. As the National legislature, Parliament was the fountain of Constitutionalism and therefore the Honorable members of Parliament were enjoined by virtue of their office to observe and adhere to the basic tenets of the Constitution in their deliberations and actions. The Speaker, as the head of the House, had a big role to play in guiding parliamentarians not to use unparliamentary and reckless language that could have infringed on other people’s rights which were entrenched in the Constitution, by calling them to order. Parliament should have avoided acts which were akin to mob justice because such acts undermined the respect and integrity of the National Parliament. It was not in keeping with the basic tenets of the Constitution, for example, when an Honourable Member of Parliament advocated for executing people without trial, like Idi Amin did to many Ugandans and that member was not called to order, but was just cheered on by the rest of the House. The manner in which the deliberations of Parliament were conducted during the debate that led to the passing of the impugned resolutions was unfortunate.
- It was the obligation of the Speaker of the relevant House to ensure that there was order and decorum in the House when the House was in session with very minimal, if any, abridgement or restriction of the rights of the members of the public and the media to be present during the session. The decision to bar the members of the public and the media from the House ought to have been taken only in exceptional circumstances where there was real danger to the life and limb of the Members and after all other measures necessary to secure the House had failed, including even an adjournment of the session. Standing Order 112(1) provided that in the event of grave disorder arising in the House, the Speaker could have adjourned the House forthwith or suspend any sitting for a period to be determined by him or her.
- The atmosphere in the House ought to have been such that the freedom of speech and debate in Parliament was provided in article 117(1) of the Constitution was not placed in jeopardy by the unnecessary presence of security officers either in the House or within the precincts of the House. According to the minutes of December 20, 2016, towards the end of the debate in the National Assembly, there was clearly disorder in the House. The record of the Hansard indicated that several Members shouted at each other and blew whistles; Members were pushed while others sang songs prompting the Speaker to decline to take further orders and to adjourn the sitting till January 24, 2017. However there was another sitting called for the December 22, 2016. The Speaker however noted that at the previous sitting, some Members had sneaked in pepper sprays and whistles into the House. The minutes however did not show any disorder on that day. Neither was there an indication that the media and members of the public were barred from the Special Sittings.
- When a Bill had been rejected, or lost through disagreement, it was not, according to the practice of Parliament, to be reintroduced in the same session. That followed from the general rule that the same question was not be twice offered. That position was in consonance with Standing Order No 1(2) which stated that any procedural question decided by the Speaker had to be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that they were applicable to Kenya. Where Parliaments’ action violated the Constitution, the Court had both an entitlement and obligation to intervene.
- The Parliamentary Powers and Privileges Act, No. 29 of 2017 was assented to by the President. Under section 38(1) of the said Act the National Assembly (Powers and Privileges) Act was repealed. However, the commencement date of Act No. 29 of 2017 was indicated as August 17, 2017. Section 23(3) (e) of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya provided that where a written law repealed in whole or in part another written law, then, unless a contrary intention appeared the repeal was not to affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy could have been instituted, continued or enforced, and any such penalty, forfeiture or punishment could have been imposed, as if the repealing written law had not been made.
- The instant proceedings were commenced before the commencement date of the said Act. Section 11 of the Parliamentary Powers and Privileges Act provided that no proceedings or decision of Parliament or the Committee of Powers and Privileges acting in accordance with the Act was to be questioned in any court. The essential idea of a legal system was that the then law was to govern the then then activities. As for non-criminal legislation, the general rule was that all statutes other than those which were merely declaratory or which related only to matters of procedure or evidence were prima facie prospective and retrospective effect was not to be given to them unless by express words or necessary implication, it appeared that that was the intention of the legislature.
- Whether or not legislation operated retrospectively depended on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts were guided by certain rules of construction. One of those rules was that where the legislation affected the substantive rights, it would not have been construed to have retrospective operation unless a clear intention to that effect was manifested; whereas if it affected procedure only, prima facie it operated retrospectively unless there was a good reason to the contrary.
- A retroactive law was not unconstitutional unless it inter-alia impaired obligations under contracts, divested rights or was constitutionally forbidden. A statute which took away or impaired vested rights acquired under existing laws, or created new obligations or imposed a new duty in respect of transaction already past, had to be presumed to be intended not to have retrospective operation.
- There was no stipulation in the Parliamentary Powers and Privileges Act that it was meant to operate retrospectively. The National Assembly was subject to the Supremacy of the Constitution. It was an organ of State and therefore it was bound by the Bill of Rights. All its decisions and acts were subject to the Constitution and the Bill of Rights. Parliament could no longer claim supreme power subject to limitations imposed by the Constitution. It was subject in all respects to the provisions of the Constitution. It had only those powers vested in it by the Constitution expressly or by necessary implication or by other statutes which were not in conflict with the Constitution. It followed therefore that Parliament would not have conferred on itself or on any of its constituent parts, including the National Assembly, any powers not conferred on them by the Constitution expressly or by necessary implication.
- The Constitution was Supreme - not Parliament. It was the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent could make any law or perform any act which was not sanctioned by the Constitution. Any citizen adversely affected by any decree, order or action of any official or body, which was not properly authorised by the Constitution was entitled to the protection of the courts. No parliament, no official and no institution was immune from Judicial scrutiny in such circumstances.
- Under Kenya’s Constitutional democracy, the Constitution was the Supreme Law. It was binding on all branches of government including parliament when it exercised its legislative authority. Parliament had to act in accordance with and within the limits of the Constitution. The Supremacy of the Constitution required that the obligations imposed by the Constitution had to be fulfilled. The courts were required by the Constitution to ensure that all branches of Government acted within the law and fulfilled their constitutional obligations.
- Section 12 of Parliamentary Powers and Privileges Act only dealt with civil proceedings. The instant judicial proceedings were judicial review proceedings. It was now trite law that the High Court in the exercise of its judicial review jurisdiction exercised neither a criminal jurisdiction nor a civil one since the powers of the High Court to grant judicial review remedies was sui generis. As a result, section 11 of the Parliamentary Powers and Privileges Act, did not apply to the instant proceedings.
- In conducting its proceedings, Parliament was bound to adhere to the provisions of the Constitution and where its actions contravened the Constitution; the same was null and void. In conclusion, Parliament had not conducted its proceedings on December 20 and 22, 2016 and/or any subsequent and consequential proceedings in respect of National Assembly to the Elections Act, 2011 procedurally.
- A proper constitutional understanding especially of articles 1 and 159 of the Constitution as well as the interpretive theory in article 259 of the Constitution obliged the Court in cases such as the instant one to balance the public interest and the private interest in determining whether to grant orders and in fashioning appropriate remedies. However, balancing between the public interest and the rights of successful litigants before the Court was a fact intensive inquiry. It had to be based on facts and permissible inferences of the likely consequences of granting the orders. It was not enough for a party to warn the Court that administrative chaos would ensue, that the heavens would shatter, and that the sky would fall down if the orders sought were granted. A party seeking to rely on the doctrine of public interest to inoculate its otherwise unlawful actions against judicial review orders bore a heavy burden to demonstrate that it would burden under the yoke of impossibility if the merited orders were granted.
- In balancing the competing aspects, the nature of the right which was breached and its importance in the constitutional scheme of rights had to be considered. The starting point however was that there could never have been public interest in breach of the law, and the decision of the Respondent was indefensible on public interest because public interest had to accord to the Constitution and the law as the rule of law was one of the national values of the Constitution under article 10 of the Constitution. Moreover, the defence of public interest ought to have been considered in a forum where in accordance with the law, the ex-parte Applicant members were granted an opportunity to be heard. There could not have been public interest consistent with the rule of law in not affording a hearing to a person who was likely to be affected by a judicial or quasi-judicial decision.
- A party could not transgress the law with impunity and then tell the court that public interest dictated that the action was not to be reversed. Such posture would have been frowned upon by the Court. Contravention of the Constitution or a Statute could not have been justified on the plea of public interest as public interest was best served by enforcing the Constitution and statute. It was the basic principle of legal policy that law was to serve the public interest. The Court had therefore to strive to avoid adopting a construction which was in any way adverse to the public interest.
- A matter of public interest had to be a matter in which the whole society had a stake. It was a matter that affected the legal rights or liability of the public at large. Public interest was the general welfare of the public that warranted recognition and protection and it was something in which the public as a whole had a stake; especially an interest that justified governmental regulation. An issue was one of public law where it involved a matter of public interest in the sense that it had an impact on the public generally and not merely on an individual or group. A matter could also be one of public law even where it had a specific impact on an individual in his personal capacity.
- Article 1(1) of the Constitution provided that all sovereign power belonged to the people of Kenya and had to be exercised only in accordance with the Constitution while under article 1(3)(c), sovereign power under the Constitution was delegated inter alia to the Judiciary and Independent Tribunals. Judicial power was derived from the sovereign people and was to be administered in their names. Under the Constitution of Kenya, 2010, judicial power whether exercised by the Court or Independent Tribunals was derived from the sovereign people of Kenya and was to be administered in their name and on their behalf. It followed that to purport to administer judicial power in a manner that was contrary to the expectation of the people of Kenya would have been contrary to the said constitutional provisions. There was the public interest that harm was not be to the nation or public and that there were many cases where the nature of the injury which would have been done to the Nation or the public service was of so grave a character that no other interest public or private, could be allowed to prevail over it.
- In appropriate circumstances, courts of law and independent tribunals were properly entitled pursuant to article 1 of the Constitution to take into account public or national interest in determining disputes before them where there was a conflict between public interest and private interest by balancing the two and deciding where the scales of justice tilted. Therefore the Court or tribunals were to appreciate that in Kenya’s jurisdiction, the principle of proportionality was now part of Kenya’s jurisprudence and therefore it was not unreasonable or irrational to take the said principle into account in arriving at a judicial determination.
- What the Court ought to have done when confronted with such circumstances was to consider the twin overriding principles of proportionality and equality of arms which were aimed at placing the parties before the court on equal footing and see where the scales of justice lay considering the fact that it was the business of the court, so far as possible, to secure that any transitional motions before the court did not render nugatory the ultimate end of justice. The court, in exercising its discretion, had to therefore always opt for the lower rather than the higher risk of injustice.
- In evaluating the rightness or wrongness of an action, one had to primarily be concerned with the consequences of their action. In comparing the ethical quality of two ways of acting, the court was to choose the alternative which tended to produce the greatest happiness for the greatest number of people and produced the most goods. Though in the instant case the court was not dealing with ethical issues, that doctrine was aptly applicable.
- It was not in doubt that the decision whether or not to grant judicial review reliefs was an exercise of discretion which had to be exercised judicially. The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), and mandatory orders (formerly known as orders of mandamus) were all discretionary. The Court had a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief, the court was to take into account the conduct of the party applying, and consider whether it had not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object could also result in the court declining to grant relief.
- Another consideration in deciding whether or not to grant relief was the effect of doing so. Other factors which could have been considered to be relevant included whether the grant of the remedy was unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who dealt with the body in question, would have resulted from the order and whether the form of the order would have required close supervision by the court or be incapable of practical fulfillment. The Court had an ultimate discretion whether to set aside decisions and could decline to do so in the public interest, notwithstanding that it held and declared the decision to have been made unlawfully. Account of demands of good public administration could have led to a refusal of relief. Similarly, where public bodies were involved, the court could allow contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders.
- None of the parties had addressed the Court on the consequences of issuing the orders sought herein. The Court was aware that subsequent to the commencement of the proceedings, the country went through a general election. Those elections gave rise to petitions some of which had been determined. It could not have been ruled out that the impugned provisions could have been applied during the said elections and that some of the petitions may well have been decided in accordance therewith. While that did not bar the Court from making the necessary declaratory orders for the sake of posterity, to issue an order quashing and/or annulling the amendments made by the National Assembly to the Elections Act 2011 on December 20, and 22, 2016 and or any subsequent and consequential amendments by the Senate or Parliament could have been reckless. That was a scenario that the Court could neither have turned a blind eye nor blocked its ears to as to do so, had the potential of breeding chaos. A court decision, had to, as much as possible, and without abetting illegality and unconstitutionality, be geared towards the sustaining social engineering and order in society rather than chaos and disorder.
Petition dismissed with no order as to costs.
Long'et Terer - CEO and Editor
The Kenya Law Team
Where Legal Information is Public Knowledge.
The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org