Sections 7 and 11 of the Parliamentary Powers and Privileges Act are Unconstitutional on Grounds of being Ouster Clauses which Unjustifiably Limit the Right of Access to Justice.
Apollo Mboya v Attorney General & 2 others
Petition No 472 of 2017
High Court at Nairobi
J M Mativo, J
May 21, 2018
Reported by Beryl A Ikamari
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Constitutional Law-interpretation of constitutional provisions-principles applicable to constitutional interpretation-considerations applicable to the interpretation of the Constitution-Constitution of Kenya 2010, articles 2, 19 & 259.
Statutes-interpretation of statutory provisions-principles applicable to statutory interpretation-scope of the Court's duty when interpreting a statute-scope of statutory interpretation where there was a lacuna (gap) in the law.
Statutes-interpretation of statutory provisions-constitutionality of sections 3, 7 and 11 of the Parliamentary Powers and Privileges Act-whether sections 7 and 11 of the Parliamentary Powers and Privileges Act created ouster clauses which violated the principle of the rule of law, right of access to justice and the constitutional duty of the High Court to hear and determine disputes, by extending the scope of parliamentary immunity-Constitution of Kenya 2010, articles 1, 2, 3, 10, 19, 20, 21(1), 22, 23, 24, 48, 50, 93 (2), 94 (4), 159 & 258; Parliamentary Powers and Privileges Act, No 29 of 2017, sections 3, 7 & 11.
Constitutional Law-the executive-the presidency-scope of the President's mandate when assenting to a Bill-where it was alleged that a statute which received presidential assent had provisions which were unconstitutional-whether the grant of presidential assent under those circumstances could be questioned and subjected to a court challenge-Constitution of Kenya 2010, article 115.
Constitutional Law-national values and principles of governance-public participation-threshold to be met in the facilitation of public participation-considerations of the Court in determining whether efforts made to facilitate public participation were reasonable-whether there was adequate public participation in the process leading to the enactment of the Parliamentary Powers and Privileges Act-Constitution of Kenya 2010, article 117.
The Petitioner challenged the constitutionality of sections 3, 7 and 11 of the Parliamentary Powers and Privileges Act (the Act). He also questioned the process leading to the enactment of the Parliamentary Powers and Privileges Act on grounds of failure to undertake public consultations with all stakeholders.
The Petitioner stated that section 7 of the Act was unconstitutional as it insulated Parliament's staff and legal officers from service of process from Courts in Kenya while permitting service of foreign court process within the precincts of Parliament.
The Petitioner challenged section 11 of the Act on various grounds. Generally, he stated that it purported to confer non-existent privileges and immunities on all staff and advocates of Parliament from court process. He said that it insulated the proceedings and decisions of Parliament including enactments and appointment of public officers from court scrutiny even where they were unconstitutional or a violation of fundamental rights and freedoms. Further, the Petitioner stated that the provision limited the right to fair administrative action and access to justice guaranteed under articles 47 and 48 of the Constitution and amounted to a limitation on the enjoyment of fundamental rights and freedoms which was contrary to article 24 of the Constitution. According to the Petitioner, section 11 of the Act made Parliament a house of secrets that was beyond the reach of the Constitution.
The challenge raised against section 3 of the Act by the Petitioner was that it purported to confer non-existent privileges and immunities to all staff of Parliament, members of the public and press who were within the precincts of Parliament from Court processes and it elevated them above the law. The Petitioner stated that the provision was a contravention of article 117(2) of the Constitution on powers, privileges and immunities of Parliament granted to the business of Parliament, its committees, the leaders of the Majority and Minority and Chairpersons and Members of Committees.
- What were the principles applicable to constitutional interpretation?
- What were the principles applicable to statutory interpretation?
- Whether sections 3, 7 and 11 of the Parliamentary Powers and Privileges Act, which granted privileges and immunities to all staff and advocates of Parliament from service of process from courts in Kenya, were unconstitutional on grounds that they entailed ouster clauses which extended the scope of parliamentary immunity beyond its traditional limits.
- Whether the President's decision to assent to a Bill, whose provisions were alleged to be unconstitutional, could be a basis for challenging the constitutionality of a statute.
- Whether the duty to facilitate public participation in the enactment of the Parliamentary Powers and Privileges Act was complied with.
Petition partly allowed.
- In interpreting the Constitution, pursuant to article 259 of the Constitution, courts were obliged to promote the spirit, purport, values and principles of the Constitution, advance the rule of law, human rights and fundamental freedoms in the Bill of Rights and contribute to good governance.
- An established principle of constitutional interpretation is that constitutional provisions must be construed purposively and in a contextual manner. Courts were constrained by the language used and they would not impose a meaning that the text was not reasonably capable of bearing.
- Having been enacted under the provisions of article 117 of the Constitution, the Parliamentary Powers and Privileges Act had to be understood purposively because it was linked to the Constitution. In its interpretation, the Court had to promote the spirit, purport and objects of the Constitution.
- In searching for the purpose of an Act, it was necessary to identify the mischief sought to be remedied by the legislation. Where appropriate, due regard would be had to the social and historical background of the legislation. The impugned provisions were to be understood within the context of any related provisions and the Constitution as a whole including the underlying values of the Constitution which were to be promoted and protected.
- Although the text of a statute was the starting point in statutory interpretation, the meaning that it bore had to pay regard to the context. That was so even when the ordinary meaning of the provision to be interpreted was clear and unambiguous.
- In interpreting the impugned provisions, the Court was obliged to avoid an interpretation that clashed with constitutional values, purposes and principles and seek a meaning that promoted those constitutional purposes, values and principles. The Court would pursue an interpretation that advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance.
- As a rule of constitutional interpretation, no one provision of the Constitution is to be segregated from the others and to be considered alone. All constitutional provisions with a bearing upon a particular subject would be considered and interpreted so as to effectuate the purpose of the instrument.
- On numerous occasions courts were called upon to bridge the gap between what the law was and what the law was intended to be. In those circumstances courts could not refuse to fill the gap. In performing that duty, they would not impose their value judgments on society. They would respect and accept the prevailing values and do what was expected of them. The courts would fail in performing that duty if they helpless approved an interpretation of a statute which would subvert societal goals and endanger the public good.
- The Legislature would become functus officio after enacting statutes and they could not interpret the statutes. Judges interpret statutes. Judges had to offer an interpretation to statutes and they could not say that they do not understand the statutes or remand them back to the Legislature for interpretation. The need for such interpretation, led to the creation of the principles of interpretation applicable in situations where the clarity and precision in the provisions of a statute were missing.
- The most important rule of statutory interpretation was the rule dealing with the statute’s plain language. The language of a statute was the starting point in interpreting a statute and ordinarily it would be taken as the conclusive criteria in interpreting a given provision.
- Where the language of a provision was plain and clear, the Court could not enlarge the scope of legislation or the intention of the Legislature. The Court had no power to legislate and it could not rewrite, recast or reframe the legislation. The Court was incapable of adding words to a statute or reading words into a statute where those words were not there in the statute. If a statute had a defect or omission, the Court could not correct or make up the omission.
- The rule on literal construction would be used where a statute's words were clear and unambiguous and it would suffice and there would be no need to use other rules of statutory interpretation. Other rules of statutory interpretation would be used where the legislative intention was not clear.
- Article 2 of the Constitution was to the effect that the Constitution entailed Kenya's supreme law and that any law or conduct that was inconsistent with it was invalid. Further, under article 19 there was a declaration to the effect that the Bill of Rights was the cornerstone of Kenya's democracy. The Bill of Rights was an integral part of Kenya's democratic state and was the framework for social, economic and cultural policies.
- When the constitutionality of a statute was challenged, the Court had to determine whether through the application of all legitimate interpretive aids, the impugned legislation or provision was capable of being read in a manner that was constitutionally compliant. The well-known general principles applicable to constitutional interpretation are the following:-
- The Constitution is not interpreted like an ordinary statute. The spirit and tenor of the Constitution must therefore preside and permeate the process of judicial interpretation and judicial discretion. A broad, liberal and purposive interpretation of the Constitution is to be undertaken while avoiding a narrow, mechanistic, rigid and artificial interpretation. However, there were situations where it was not possible to have both a generous and purposive interpretation and the generous would have to yield to the purposive.
- In interpreting constitutional rights close scrutiny should be given to the language of the Constitution itself in order to ascertain the underlying meaning and purpose of the provision in question.
- Section 11 of the Act ousted the jurisdiction of the Court to entertain cases challenging the decisions of Parliament or the Committee of Powers and Privileges. The ouster was wide enough to cover any decision made by Parliament, legislation and decisions made by the Committee of Powers in exercise of its quasi-judicial mandate. Such decisions could have far reaching implications on the citizens including affecting the citizens' constitutionally guaranteed rights.
- The import of section 7 of the Act was that parliamentary decisions were out of the reach of the Courts. The provision was an ouster clause.
- An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. Under the doctrine of separation of powers one of the important functions of the judiciary is to keep the other organs of the State in check by ensuring that their actions comply with the law. Ouster clauses would prevent courts from exercising that constitutional function.
- Under both constitutional law and administrative law, courts possessed supervisory jurisdiction over the exercise of executive power and also jurisdiction to determine whether a statute was constitutional. When carrying out judicial review of administrative action, the Court would scrutinize the legality and not the substantive merits of an act, or decision made by a public authority under the three broad headings of illegality, irrationality and procedural impropriety. In jurisdictions which had written Constitutions, the courts also assessed the constitutionality of legislation, executive actions and governmental policy. Therefore, part of the role of the judiciary was to ensure that public authorities acted lawfully and to serve as a check and balance on the Government's power.
- The High Court's jurisdiction to interpret the Constitution was recognized in article 163(3)(d) of the Constitution. It included determinations on questions concerning whether an act or legislation was constitutional. Additionally, article 165(6) of the Constitution provided for the High Court's supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. Parliamentary committees were part of the bodies or authorities that exercised quasi-judicial functions.
- The exercise of freedom of speech in parliamentary proceedings was an important right accorded to Members of the House. Without that right, they would be hampered in the performance of their duties. It helped them speak without inhibition, refer to any matter, express any opinion freely and say what they felt needed to be said in furtherance of national interest and the aspirations of their constituents.
- Parliamentary privilege is a legal immunity enjoyed by members of Parliament, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.
- Parliamentary immunity ensured the proper operation of Parliament. It conferred rights and privileges to members of Parliament; most importantly freedom of speech. That freedom of speech enabled Parliament to do its job of legislating, adopting the budget and overseeing the activities of the Government. If members of Parliament could not criticize the Government and investigate and denounce abuses because of fear of reprisals by the executive branch or other powerful actors, they would not live up to their role. Freedom of speech would enable them to raise questions affecting the public good which could be difficult to voice elsewhere owing to the possibility of court action.
- Members would participate in parliamentary proceedings usually by speech and also through formal action including voting and giving a notice of motion. Strangers could also participate in parliamentary proceedings by giving evidence before parliamentary committees or presenting petitions with respect to private bills. While participating in parliamentary proceedings, members, officers and strangers were protected under parliamentary immunity. They could not be asked to account for their actions before any authority other than Parliament itself.
- The hard core of parliamentary immunity covered statements made from the floor of the House or in committees, Bills or proposed resolutions and motions, written and oral questions, interpellations, reports made at the request of Parliament, and votes cast. Such actions were protected by absolute privilege of freedom of speech. Members of Parliament could not be sued for defamatory statements or statements that would otherwise be a criminal offence.
- Section 11 of the impugned Act offered more immunity than would be covered under parliamentary immunity. It barred any person from challenging decisions made by Parliament or its committees in Court. It did not limit the nature of decisions which could not be challenged. It shielded Parliament's decisions from court scrutiny. It took the form of an ouster or finality cause which restricted or eliminated judicial review.
- Traditionally, courts interpreted provisions which ousted the Court's jurisdiction narrowly. That meant that a decision that was the subject of an ouster clause could still be subjected to judicial review.
- It was possible for legislation to be nullified by a court on grounds of unconstitutionality on the basis of its content or the process of its enactment. Similarly, a decision of a parliamentary committee, made in exercise of its quasi-judicial functions could be quashed by a court for being ultra vires, an error of law, unreasonable, illegal, arbitrary or for violating the Bill of Rights.
- By denying an aggrieved citizen access to court in order to challenge a particular decision, ouster clauses offended the constitutional principle of rule of law. The issue that was most likely to provoke the Court's rejection of an ouster clause was that it violated the constitutional right to access to the courts and it attacked the constitutional duty of the Court to hear cases relating to violations of fundamental rights and freedoms and also to determine the constitutionality of legislations and the legality of decisions made.
- To the extent that section 11 of the Act restricted service of civil process to staff working in Parliament, including legal officers, it was a violation of the right of access to justice as recognized in article 48 of the Constitution. Court process would not be served inside Parliament in the course of parliamentary proceedings but to Parliament's officers or advocates authorized to accept service. Thus, it could not be said that the impugned section 11 was meant to protect parliamentary proceedings from disruptions. The justification given for the infringement of the right of access to justice by the Act did not meet the test provided for in article 24 of the Constitution.
- Section 3 of the Act described the precincts of Parliament. There was nothing unconstitutional about it. However, section 7 and 11 of the Act did not pass constitutional muster and were inconsistent with articles 1, 2, 3, 10, 19, 20, 21(1), 22, 23, 24, 48, 50, 93 (2),94 (4), 159, and 258 of the Constitution. Judicial review was part of the basic structure of the Constitution and it could not be ousted by a statutory provision.
- Assenting to a bill implied at least the possibility of refusing or withholding assent. The power of a head of state to refuse or to withhold assent to legislation is known as the veto power. It allows a President to protect the Constitution, uphold the balance and separation of powers, prevent the enactment of rushed or badly drafted legislation and to thwart legislation that served special interests rather than the common good.
- Article 115 of the Constitution made provisions with respect to assent to a Bill by the President. Where the President decided to refuse to assent to a Bill he was required to note any reservations that he had concerning the Bill.
- With respect to presidential assent to a Bill, a reservation was a clear statement of the President's objections, giving a reasoned justification for refusing to assent to the Bill. The statement would give the President an opportunity to lay out precisely what was wrong with a Bill and to specify how it could be improved.
- It was not unusual for legislation to be struck down on grounds of being unconstitutional. That would not mean that Parliament or the President were to blame. Even courts rendered judgments which could be overturned on appeal.
- Separation of powers is a constitutional safeguard. Parliament had the role of passing a Bill and the President would assent to it and it would become law. The Court's role would be to interpret the law and determine how it ought to be applied and whether or not it conformed to the Constitution. There was no intention in the Constitution for the President to undertake a judicial review of the intended legislation as that was a function reserved to the High Court.
- The President properly assented to the Bill and the mandate shifted to the Court to determine its constitutionality. There was no basis to invalidate the legislation on the basis of an alleged breach of article 115 of the Constitution.
- There were at least two aspects of the duty to facilitate public participation. The first was the duty to provide meaningful opportunities for public participation in the law-making process. The second was the duty to take measures to ensure that people had the ability to take advantage of the opportunity offered.
- In assessing whether there was compliance with the duty to facilitate public participation, the Court would determine whether Parliament did what was reasonable under the circumstances. The factors considered in determining reasonableness included rules, if any, adopted by Parliament to facilitate public participation, the nature of the legislation under consideration, and whether the legislation needed to be enacted urgently. In making its determination, the Court would strike a balance between the need to respect parliamentary institutional autonomy and the right of the public to participate in public affairs. That balance would be achieved by determining whether what Parliament did was reasonable.
- There were reasonable attempts made to undertake public participation. Views were offered against some provisions but Parliament went ahead and enacted them. Public participation did not mean that the collected views had to prevail.
- A declaration was issued decreeing that sections 7 and 11 of the Parliamentary Powers and Privileges Act (No. 29 of 2017) were inconsistent with and contravened articles 1, 2, 3, 10, 19, 20, 21(1), 22, 23, 24, 48, 50, 93 (2), 94 (4), 159, and 258 of the Constitution of Kenya, 2010.
- A declaration was issued declaring that sections 7 and 11 of the Parliamentary Powers and Privileges Act (No. 29 of 2017) were unconstitutional and therefore null and void.
- There were no orders as to costs.
Case Updates Issue 024/2018
||Failure by Kenya to Arrest President Al-Bashir when he visited Kenya was a violation of Kenya’s International Obligation under the Rome Statute
The Attorney General and 2 others vs The Kenya Section of International Commission of Jurists
Civil Appeal No 105 of 2012 Consolidated with Criminal Appeal No 274 of 2011
Court of Appeal at Nairobi
D K Musinga, W Ouko, A K Murgor, JJA
February 16, 2018
Reported by Ian Kiptoo
Locus Standi-warrant of arrest-application for a warrant of arrest-where a statute used the words ‘any person’-who had the locus standi to apply for a warrant of arrest to the High Court by virtue of the words ‘any person’ as used in the International Crimes Act-whether the Minister responsible for foreign affairs could apply to the High Court for a provisional warrant of arrest of a suspect sought by the ICC under the International Crimes Act-International Crimes Act, sections 29, 32, 33(1) and 34
International Law-international criminal law-arrest warrant-procedure of issuing arrest warrants by state parties in cooperation with ICC-what was the procedure for issuing a provisional warrant of arrest for a person sought by the ICC under the Rome statute and the International Crimes Act?-Rome Statute, articles 87 (5) (a); International Crimes Act, section 28, 29, 32 and 33
International Law-jurisdiction-jurisdiction of the ICC-effect of a State not ratifying the Rome Statute-where it was a State Party to the United Nations-whether ICC had jurisdiction over a state that had not ratified the Rome Statute but was a State Party to the United Nations-Rome statute, article 1 and 13 (b); United Nations Security Council Resolution 1593; Vienna Convention on the Law of Treaties 1969, article 10 and 18
International Law-International Criminal Court-international cooperation and judicial assistance-whether Kenya failed in its international obligation under the Rome Statute when it failed to arrest President Al-Bashir when he visited Kenya
Diplomatic Immunity and privileges-diplomatic immunity of a head of state-functional immunity vis-à-vis personal immunity-exemptions to immunity-where a head of state was sought by the ICC-claim that diplomatic immunity does not cover international crimes-whether an incumbent head of state had diplomatic immunity against a host state purporting to arrest him or her on its territory for international crimes in cooperation with the ICC-United Nations Charter, article 25; Rome statute, article 27 and 92
The primary contention in the appeal was that the High Court did not have jurisdiction to entertain the Application because, in the first place, Sudan was not a party to the Rome Statute; the matters before it were not justiciable being matters of politics and international relations; President Al-Bashir, as a sitting Head of State was immune to Kenya’s judicial process; the basis upon which the Application for a provisional warrant of arrest was made had dissipated; and that the Respondent lacked the necessary locus standi to institute and prosecute the Application.
- Who had the locus standi to apply for a warrant of arrest to the High Court by virtue of the words ‘any person’ as used in the International Crimes Act?
- Whether the Minister responsible for foreign affairs could apply to the High Court for a provisional warrant of arrest of a suspect sought by the ICC under the International crimes Act.
- What was the procedure for issuing a provisional warrant of arrest for a person sought by the ICC under the Rome statute and the International Crimes Act?
- Whether the Court erred by issuing a provisional warrant of arrest as there was no urgency when it was issued and that the summit upon which President Al-Bashir’s visit which the warrant was predicated upon had moved to another country.
- Whether ICC had jurisdiction over a state that had not ratified the Rome Statute but was a State Party to the United Nations.
- Whether Kenya failed in its international obligation under the Rome Statute when it failed to arrest President Al-Bashir when he visited Kenya.
- Whether an incumbent head of state had diplomatic immunity against a host state purporting to arrest him or her on its territory for international crimes in cooperation with the ICC. Read More...
Relevant Provisions of the Law
Rome Statute of the International Criminal Court, 1998
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”.
Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.”
Article 59. 1
A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9”.
“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.
3. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”.
Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention)
“Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”.
Vienna Convention on the Law of Treaties
“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.
Article 13(b) of the Rome Statute vests in the ICC the jurisdiction with respect to crimes of genocide; crimes against humanity; war crimes; and crime of aggression if, among other things;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”
United Nations Charter reaffirms the primacy of the Charter in situations of conflict of obligations as follows;
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
International crimes Act
“If a request for surrender is received, other than a request for provisional arrest referred to in section 28 (2), the Minister shall, if satisfied that the request is supported by the information and documents required by article 91 of the Rome Statute, notify a Judge of the High Court in writing that it has been made and request that the Judge issue a warrant for the arrest of the person whose surrender is sought”.
(1) A Judge of the High Court may issue a provisional warrant in the prescribed form for the arrest of a person if the Judge is satisfied on the basis of the information presented to him that-
(a) a warrant for the arrest of a person has been issued by the ICC or, in the case of a convicted person, a judgment of conviction has been given in relation to an international crime;
(b) the person named in the warrant or judgment is or is suspected of being in Kenya or may come to Kenya; and it is necessary or desirable for an arrest warrant to be issued urgently.
(2) A warrant may be issued under this section even though no request for surrender has yet been made or received from the ICC.
(1) If a Judge issues a provisional arrest warrant under section 32, the applicant for the warrant shall report the issue of the warrant to the Minister without delay.
(2) The applicant shall include in the report to the Minister a copy of the warrant issued by the ICC, or the judgment of conviction, as applicable, and the other documentary evidence that the applicant produced to the Judge”.
- States Parties established the International Criminal Court (ICC) with jurisdiction over persons charged with commission of the most serious crimes of international concern. That jurisdiction was to be complementary to national criminal jurisdictions. Under article 2 of the Rome Statute the ICC might have exercised its functions and powers on the territory of any State Party and, by special agreement, on the territory of any other State in respect of four specific crimes, genocide; crimes against humanity; war crimes and crime of aggression. Although the Statute confined the exercise of jurisdiction of the ICC to the boundaries of States Parties, non-State parties that were members of the United Nations under article 13(b) were nonetheless expected to cooperate in the fight against international crime.
- Part IX of the Statute was devoted to international cooperation and judicial assistance. States Parties were obligated to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. Requests for co-operation was made by the Court to States Parties through diplomatic channels or through any other appropriate channel. Article 87(5)(a) of the Statute recognised that there might have been situations when the Court might have invited any State not party to the Statute to provide assistance on the basis of an ad hoc arrangement.
- Article 98 of the Statute provided the guidelines for cooperation. The Court could request for surrender or assistance only if it would not require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State. In such a situation the Court had to first obtain the cooperation or consent of the third State or sending State for the waiver of the immunity.
- On international cooperation, since the Court did not have its own police service, it relied on States Parties’ cooperation to arrest and surrender suspects required by the Court. Under article 59 of the Statute, a state party which had received a request for provisional arrest or for arrest and surrender was required to immediately take steps to arrest the person in question in accordance with that State’s laws and the provisions of Part IX. Only a Pre-Trial Chamber might have, at the request of the Prosecution, issue a warrant of arrest. On the basis of a warrant of arrest so issued, the Court would have requested either for the provisional arrest or the arrest and surrender of a person sought by the ICC.
- Whereas the Rome Statute referred simply to provisional arrest, the International Crimes Act on the other hand used the terms provisional warrant of arrest. However, nothing serious turned on the distinction which appeared to be an influence on the drafters of the Kenyan Act by the provisions of Extradition (Commonwealth Countries) Act, where reference was repeatedly made of provisional warrants. In terms of article 92 of the Rome Statute, like section 22 of the International Crimes Act, a provisional warrant would only be issued in urgent cases once the Court made a request for assistance.
- Due to the urgency of the request, both the Statute and the Act permitted the request to be made in any form which was capable of delivering a written record. However, that had to be followed as soon as practicable by a formal request transmitted in the manner specified in article 87 of the Statute and section 21 of the Act respectively, namely, through diplomatic channel to the Minister responsible for foreign affairs; or through any other appropriate channel that Kenya might have designated. The request had to ultimately be transmitted to the Minister for the time being responsible for matters relating to national security; or the Attorney-General, as the case would have been, or a person authorised by the Attorney-General to receive requests.
- Pursuant to Part 9, and specifically article 88 of the Statute, States Parties were enjoined to ensure that they promulgated procedures in their national laws to cater for all forms of cooperation under the Statute. Relevant to the appeal, Kenya, in accordance with the edict enacted sections 28, 29, 32 and 33 of the International Crimes Act with regard to provisional arrest warrant;
- Before a provisional warrant could issue, evidence had to be presented to a judge in the High Court by an applicantthat there was in force a warrant of arrest issued by the ICC or if the person wanted had been convicted, evidence of his conviction in the form of a judgment. Secondly, the Judge had to be satisfied that the person named in the warrant was in Kenya or was suspected of being in Kenya or might come to Kenya at some future date. That information was supplied to the Judge by the Applicant.
- Sections 28, 29, 32 and 33 of the Act comprised in Part IV as well as articles 59, 89 and 92 of the Statute had to be read together. Part IV dealt with arrest and surrender to the ICC in two situations; where a request had been made by the ICC under paragraph 1 of article 89 of the Rome Statute for the arrest and surrender and secondly, where a request had been made under article 92 of the Rome Statute for the provisional arrest of a person accused or convicted of an international crime. Article 89 dealt with request to any State on whose territory a wanted person might have been found for his arrest and surrender. In complying with the request States Parties were expected to do so in accordance with the Rome Statute and the procedure made under their national law.
- From the plain language of section 33(1) of the Act the Applicant for the warrant could not be the same person as the Minister because the section required the Applicant to report to the Minister once the warrant was issued and to include in the report to the Minister a copy of the warrant issued by the ICC and the other documentary evidence that the Applicant relied on before the Judge to obtain the warrant. The Minister’s other role where a provisional warrant had been executed by way of arrest of the person sought was spelt out in section 34 of the Act. The High Court could not commence the hearing of the Application inter partes unless it had received a notice in writing from the Minister confirming that a request for the surrender of the person arrested had been transmitted to the Minister by the ICC. Pending the receipt of the confirmation from the Minister, the proceedings would have been adjourned.
- It ought to have been clear from sections 29, 33 and 59 of the Act as well as from the use of the highlighted phrase other than a request for provisional arrest referred to in section 28 (2) and the context in which the word applicant was used throughout the statute, that the person envisaged to apply for a provisional warrant of arrest was any person other than the Minister. Any person might have included independent State prosecutorial agencies like the Office of the Director of Public Prosecutions (ODPP). To that extent and with respect, the dilemma the High Court alluded to was not without justification but real. By suggesting that any person could approach a High Court judge to issue a provisional warrant, the drafters had to have taken into account that dilemma, where the Minister might have ignored or neglected to act on a request to effect a provisional arrest.
- Pursuant to the Rome Statute, Kenya promulgated its own procedures in the International Crimes Act to cater for how it was going to cooperate with the ICC. That procedure, in the wisdom of the framers, allowed any entity or person, including the ODPP, to apply to the High Court for a provisional warrant. On the other hand, a different procedure was adopted where a normal warrant of arrest under section 28 Part IV as opposed to a provisional warrant, had been issued and a request made by the ICC to Kenya to arrest and surrender a person required for committing an international crime; or a person who had been convicted by the ICC of an international crime. In that instance, the Minister would notify a Judge of the High Court in writing and request the latter to issue a warrant for the arrest of the person whose surrender was sought.
- The word provisional in its plain and ordinary meaning suggested something interim, temporary, limited in its application or dependent on circumstances, or subject to change or terms. Provisional arrests therefore allowed for the temporary arrest and detention of a person wanted for an international crime. Because the provisional arrest requests were made in cases of urgency, they seldom included enough information on which to base a determination by the Court on whether to detain a person arrested. A provisional arrest then afforded the requesting State some time to assemble the documentation necessary for a formal surrender.
- Once a person against whom a warrant had been issued was traced, he would be arrested immediately even before a formal request for surrender could be prepared and presented for fear that any further delay might have frustrated the execution of the warrant as the person might have fled the jurisdiction of the Court.
- Article 96 of the Rome Statute and section 32 of the International Crimes Act were clear that a request for provisional arrest or a provisional warrant would be made or issued only in urgent situations. According to section 32 of the Act, a judge of the High Court would have issued a provisional warrant if he was satisfied on the basis of the information presented to him that, among other things, the person named in the ICC warrant was in Kenya or was suspected of being in Kenya or might come to Kenya; and it was necessary or desirable for an arrest warrant to be issued urgently.
- The procedure under sections 34 and 35 of the Act for effecting an arrest pursuant to a provisional warrant, though elaborate, was equally intended to achieve expedition in the determination of the question of arrest and surrender. A hearing leading to the issuance of a provisional warrant was ex parte. That being so, the Court seized of the Application had to satisfy itself, first, that prima facie it had jurisdiction and secondly, that the situation was one of urgency. Just like the procedures in municipal systems the Court had a duty, in issuing the provisional arrest warrant, to preserve rights and to ensure no prejudice was caused to any of the subjects of the dispute in the proceedings before their rights were determined with finality on merit.
- Hearing at the inter partes stage was limited to the determination whether the person arrested was eligible for surrender in relation to the international crime or crimes for which surrender was sought. The Court would also consider whether the person was arrested in accordance with the proper process and whether his rights and fundamental freedoms were respected in the process of his arrest. Inter partes hearing could not proceed until the Minister furnished the Court with a notice in writing confirming that he had received from the ICC a request for the surrender of the suspect.
- Whereas in Kenya the High Court could fix a date by which the Minister had to transmit the notice, failing which the arrested person had to be discharged, under rule 188 of the Rome Statute: Rules of Procedure and Evidence, the time limit for receipt of the request for surrender and the documents supporting the request was 60 days from the date of the provisional arrest. The provisional warrant was sought ostensibly because President Al Bashir was scheduled to attend the IGAD Summit in Nairobi. The Summit was however moved to Addis Ababa. By issuing a provisional warrant when well aware of those developments, the High Court misapplied the law.
- Secondly, the Application was presented on November 18, 2010 and argued on December 9, 2010 before High Court. The Summit President Al-Bashir had intended to attend in Kenya was to be held in November, 2010. So that by the time the Application was heard the date had passed. That notwithstanding, High Court having heard the Application on December 9, 2010 reserved the ruling for February 28, 2011, but did not deliver it. Instead it was finally rendered on November 28, 2011. That was a period of nearly one year later. At that point High Court ought to have acknowledged that the urgency which was the foundation of the Application had dissipated and the warrant was stale.
- Articles 1 and 4 of the Rome Statute established the ICC as a permanent institution with international legal personality and the power to exercise its jurisdiction over persons for the most serious crimes of concern to the international community as a whole, such as, crimes against humanity, war crimes and crime of aggression. It exercised its functions and powers on the territory of any State Party and, by special agreement, on the territory of any other State. It had to be emphasised that although established as an independent court, the enforcement of its warrants remained with the States Parties, the broader international community and even in some cases with non-States Parties.
- As a result, both State Party and non-State Party were required under article 87 of the Statute to cooperate with the ICC. Non-State Parties to the Statute cooperated with the Court through an ad hoc arrangement or agreement. States Parties were, on the other hand enjoined to promulgate procedures under their national law to cater for all forms of cooperation specified under the Rome Statute.
- However, there might have been situations that would have impeded compliance with an ICC. For example, where the request contained insufficient information or if the person sought to be surrendered could not be located or where the investigations had determined that the person in the requested State was clearly not the person named in the warrant; or if the request would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State. In those circumstances the concerned State had to immediately consult ICC for a resolution to the difficulty.
- In all other circumstances, the States were required to comply with and execute, in accordance with the law, all forms of requests from the ICC. In the instant case, after sending a request to Kenya with respect to the impending possible visit to Kenya by President Al-Bashir in November, 2010, the Pre-Trial Chamber of the ICC, sought to know from Kenya whether there was any reason which would impede or prevent the arrest and surrender of President Al-Bashir in the event he visited Kenya. The 1st Appellant responded by confirming that IGAD meeting would not be held in Kenya and hence President Al Bashir would not be coming to Kenya.
- By ratifying the Rome Statute in 2005 and subsequently enacting the International Crimes Act in 2008, Kenya made a conscientious decision to join 97 other nations in the combat of international crimes of genocide, crimes against humanity and war crimes. By section 3 of the Act, the Government of Kenya bound itself to comply with its obligations under the Rome Statute and to fully implement the Rome Statute, whose provisions were, by the Act declared to have force of law in Kenya.
- The general expectation was that by ratifying the Rome Statute and enacting the International Crimes Act, the Government was acting on behalf of and in the best interests of the citizens of Kenya. Part of its obligation was to take immediate steps to arrest and surrender any person it might have been requested to arrest and surrender by the ICC. As a State Party it had to be aware that failure to comply with any request for cooperation would have entitled the ICC to make a formal finding to that effect and thereafter to refer the matter to the Assembly of States Parties and even to the Security Council. Therefore, the Government of Kenya by inviting President Al-Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligation.
- Article 27(1) and (2) of the Statute incorporated three core but related principles which were
By virtue of article 27, all States Parties through ratification of the Rome Statute consented to waive any immunity under international law. That was the statutory basis for the requested State Party to arrest and surrender the wanted foreign Head of State of another State Party. Secondly and of more significance, because article 27(2) codified rules of customary international law, it applied even to Heads of State and officials of non-States Parties in situations envisaged under article 87(5)(a) (b).
- that the Rome Statute applied to all persons without any distinction based on official capacity;
- Official capacity could not exempt a person from responsibility; and
- Immunities or procedural rules could not bar the ICC from exercising jurisdiction.
- Under article 87(5) (a) and (b) the Court might have invited any non-State Party to provide assistance on the basis of an ad hoc arrangement or agreement. Where a non-State Party failed to comply with requests made pursuant to any such arrangement or agreement, the Court was permitted to inform the Assembly of States Parties or the Security Council just as it would do in the case of a States Party’s failure.
- The construction and import of article 98 and article 27 had been controversial. On the one hand, article 27 declared that official capacity or status of the person sought to be arrested was irrelevant while on the other hand article 98 seemed to suggest that States had to respect the State or diplomatic immunity of a person of another State, which only that other State could waive. The clear purpose of article 27 was to explicate when a State was exempt from its obligations of cooperating with the ICC. The provision was no doubt designed to avoid competing international obligations that might have been imposed on a State. It acknowledged that a State might have other international obligations that might have abrogated its duty to cooperate with the ICC. However, cooperation to waive immunity could have nonetheless been obtained from non-States Party.
- Under customary international law, a state arresting on its territory an incumbent Head of State who possessed immunity would be violating international law. The logical corollary was that there was an obligation on States under customary international law to arrest and prosecute any person, other than the Head of State, who was alleged to have committed certain crimes recognised under customary international law. In the circumstances presented by the appeal, article 98 (1) would have precluded the ICC from proceeding with a request for arrest and surrender of President Al-Bashir, if by doing so Kenya would be acting inconsistently with its obligations under international law with respect to the State or diplomatic immunity of President Al-Bashir unless, of course Sudan was to waive the immunity of its President.
- Diplomatic and consular agents as well as certain holders of high-ranking office in a State, such as the Head of State or Government possessed immunity from criminal process or jurisdiction of other States in relation only to acts performed in their official capacity or on account of personal immunities. The former was what was referred to in international law as immunity ratione materiae or functional immunity and the latter, immunity ratione personae or personal immunity.
- Immunity ratione materiae was an immunity that attached to the official act rather than the status of the official. It constituted a substantive defence in international law to the effect that the individual official was not to be held legally responsible for acts which were, in effect, those of the State. Under customary international law and certain treaties the Head of State and diplomats accredited to a foreign State possessed personal immunities (ratione personae) from the jurisdiction of foreign States. The predominant justification for both categories of immunities was that they ensured the smooth conduct of international relations. They were essential for the maintenance of a system of peaceful cooperation and co-existence among States.
- Whilst it was commonly accepted that State officials were immune in certain circumstances from the criminal jurisdiction of foreign States or international courts or tribunals, there had been uncertainty about the extent of those immunities where the official was accused of committing international crimes. State immunity was accorded only to sovereign acts and was not available if the acts in question amounted to international crimes. Crimes recognized as such under customary international law, for the most part, constituted violations of jus cogens norms and therefore could not constitute sovereign acts. Because jus cogens norms superseded all other norms, they overcame all inconsistent rules of international law providing for immunity.
- When a State engaged in acts which were contrary to jus cogens norms, then by implication it waived any rights to immunity for stepping out of the sphere of sovereignty. A state which carried out or permitted torture, war crimes, crimes against humanity, the crime of genocide and the crime of aggression was in violation of customary international law. An exception to immunity existed in cases where the individual was responsible for crimes against humanity. In the result the State official, including a Head of State, was personally responsible for his crimes because customary international law was based on the appreciation that certain acts amounted to international crimes of individuals could not be considered as legitimate performance of official functions of the State.
- Kenya as a State acknowledged that the existence of any form of immunity attaching to the official capacity of any person whose arrest was sought by ICC would not be a ground for refusing to execute a request sought by the ICC for surrender or other assistance, including an arrest warrant, or for insisting that a person was ineligible for surrender, transfer, or removal to the ICC. The Court was not told that Kenya had consulted the ICC in terms of sections 62 and 115 on any form of conflict regarding its obligations to Sudan or any other State for the ICC to determine whether or not article 98 of the Rome Statute applied to the request for execution of the arrest warrant and surrender.
- Kenya found itself in a rare geopolitical predicament when it was requested by the ICC to effect the arrest and surrender of President Al-Bashir. The choice was between cooperating with the ICC and remaining true to the African Union resolution not to cooperate with ICC. The former was the only tenable legal choice for Kenya; that was, to demonstrate its commitment to champion the fight on global impunity. But by inviting President Al-Bashir to the inauguration of a new Constitution, which ironically had one of the most progressive Bill of Rights in the region, the Government of Kenya itself acted with impunity and joined States against which the ICC had issued non-cooperation decisions and reported their failure to arrest President Al-Bashir to the Security Council as well as the Assembly of States Parties.
- Article 2 (5) of the Constitution of Kenya declared that the general rules of international law were now part of the law of Kenya. It had been confirmed that general rules of international law was the same thing as customary international law and did not depend on consent of or ratification by States and no State or treaty could contract contrary to or out of them. Article 53 of the Vienna Convention on the Law of Treaties was specific on that.
- International law did not directly impose obligations on individuals personally, it had become an accepted part of international law that individuals who committed international crimes were accountable to the world for them; and that as a matter of general customary international law it was no longer in doubt that a Head of State would personally be liable if there was sufficient evidence that he authorised or perpetrated those internationally recognised serious crimes alluded to. It had to be borne in mind that the very purpose of international criminal responsibility was to separate the responsibility of individuals from that of the State; and that the purpose of the ICC, and indeed of all other international criminal tribunals and courts was, as stated in the preambles of the laws establishing them, to end impunity for international crimes and to punish perpetrators of atrocities, wherever they might have occurred.
- The ICC, in the instant situation and in accordance with article 13 of the Rome Statute, derived its jurisdiction over the war crimes in Darfur from the UN Security Council. There was nothing unusual because historically, international criminal courts or tribunals had acquired jurisdictions differently. Article 13(b) of the Rome Statute vested in the ICC the jurisdiction with respect to crimes of genocide; crimes against humanity; war crimes; and crime of aggression among other things.
- The plain and unambiguous mandatory language of the UNs’ Security Council Resolution 1593 (2005) - shall cooperate fully- compelled Sudan, though not a State Party to the Statute, to cooperate fully with the ICC. On the other hand, and while stressing that non-State parties, (other than Sudan), had no obligation under the Statute, the Security Council-urged all-of them to cooperate fully with the Court.
- The obligation imposed on Sudan by the Security Council had to be traced to Sudan’s membership of the United Nations and the fact that it had ratified a number of UN Human Rights Conventions by which it had made binding international commitments to adhere to the standards and values laid down in those universal human rights documents. As a signatory to the UN Charter, Sudan undertook to uphold, promote and to act in accordance with the principles espoused in article 2 of the Charter. Among those principles were; to settle international disputes by peaceful means in such a manner that international peace and security, and justice, were not endangered; and to give the United Nations every assistance in any action it took. It consented to the obligation to comply with the provisions of the Charter, including decisions and resolutions of the Security Council made pursuant to Chapter VII.
- Article 103 of the Charter reaffirmed the primacy of the Charter in situations of conflict of obligations. Where the Security Council referred a situation to the ICC, the territoriality and nationality regimes that would ordinarily restrict the Court did not apply. The reference enabled the ICC to exercise jurisdiction over States that had not ratified the Rome Statute.
- Under article 25 of the Charter the members had agreed to accept and carry out the decisions of the Security Council in accordance with the Charter. Thus, it could have been argued that the Security Council, acting under Chapter VII of the Charter, effectively removed immunity with respect to President Al-Bashir. That was an exception to the general rule that treaties would have only created obligations for States that were party to that treaty and a third State could not be bound by the provisions of a treaty without its express consent.
- Under President Al-Bashir, Sudan had signed the Rome Statute on September 8, 2000 but had not ratified it. Therefore, Sudan was not a State member to the Rome Statute because a mere signature without ratification, acceptance or approval did not establish the consent of a State to be bound. However under articles 10 and 18 of the Vienna Convention on the Law of Treaties 1969 the signature was significant as it created an obligation on the signing State to refrain, in good faith, from acts that would have defeated the object and the purpose of the treaty. The Security Council having itself referred the Darfur situation to the ICC, it followed that the provisions of the Rome Statute, including the waiver of immunity set out in article 27 (2) effectively applied to Sudan. With the referral Sudan would be treated as if it were a State party.
- Article 87(5) of the Rome Statute recognized that a non-State party to the Rome Statute might have been subject to an obligation to cooperate with the ICC on an appropriate basis. The appropriate basis might have included a resolution adopted by the Security Council. Thus, unlike States parties, the basis of the Government of Sudan’s obligation to cooperate with the ICC was Resolution 1593. It was required to fully comply with the ICC’s request for the execution of the arrest warrant and surrender. However, that was highly unlikely given Sudan’s previous failure to cooperate on the basis of its immunity.
- Kenya was in the category of States parties to the Rome Statute, bound by both the Rome Statute and its own International Crimes Act. The arrest warrant and a request for cooperation were transmitted to all States parties. There was no dispute of the fact that indeed Kenya received the notification of the warrant of arrest. All States parties to the Rome Statute were by articles 59(1), 86 and 89(1) under a general obligation to cooperate with the ICC; to arrest indicted individuals found within their territories; and a specific obligation to arrest and surrender an individual where a State had received a request to do so.
- For Kenya the Rome Statute, which was a higher norm than the resolution, and customary international law imposed an overriding obligation to cooperate. Under customary international law, the UN Charter, the Rome Statute and the International Crimes Act, and as a UN Member State it was legitimate for Kenya to disregard President Al-Bashir’s immunity and execute the ICC’s request for cooperation by arresting him, because under the concept of pacta sunt servanda embodied in article 26 of the Vienna Convention on the Law of Treaties, every treaty in force was binding upon the parties to it and had to be performed by them in good faith.
- Article 143(4) of the Constitution of Kenya, 2010 supported the position of waiver of immunity for a crime for which the President would have been prosecuted under any treaty to which Kenya was party, and which prohibited such immunity. Thus, Kenya was bound by its international obligations to cooperate with the ICC to execute the original warrant issued by the ICC for the arrest of President Al-Bashir when he visited Kenya on August 27, 2010 and in future would he return to Kenya if the warrants were still in force.
- In so far as the orders granting provisional arrest and the one directing the Minister to effect the warrant were concerned, there was no jurisdiction upon which to issue them. True, after President Al-Bashir left Kenya, no effect could have been given to the order that the Government take steps to arrest him upon coming to Kenya for the Summit that was cancelled. And, President Al-Bashir was not in Kenya.
- That was not to say that the appeal was moot. It would have been moot if the issues it raised had no practical effect or result. However, that was not the case with the appeal. In it, the Court delineated the obligation of the Government of Kenya as regards the warrants issued by the ICC and suggested that, unless they were rescinded by the ICC, the warrants remained outstanding and could still be executed by Kenya. In addition, the Court declared that the Government’s failure to effect the arrest of President Al Bashir breached relevant international instruments, Kenya’s Constitution and legislation which were important perspectives.
Appeal allowed; no order as to costs.
||Kadhis Court Does not have Jurisdiction in Relation to the Custody, Care or Control of Children
T L vs Kadhis Court Nairobi and 2 others
Judicial Review Case No 55 of 2016
High Court at Nairobi
R E Aburili, J
January 25, 2018
Reported by Ian Kiptoo
Jurisdiction-Jurisdiction of the Children’s Court-jurisdiction of the Kadhis Court-jurisdiction of the Children’s Court vis-à-vis the Kadhis Court-where parents of a child professed Islam-whether the Kadhis Court, as opposed to the Children’s Court, had jurisdiction to hear and determine issues relating to the custody, care or control of children whose parents were Muslims and professed Islam-Constitution of Kenya, 2010 article 170(5); Children’s Act, section 81 and 83(g), Kadhis Act, section 5
Statutes-statutory interpretation-interpretation of article 170(5) of the Constitution and section 5 of the Kadhis Court Act in regards to jurisdiction of Kadhis Court to handle matters that involved Muslim parties-where a party did not submit to the jurisdiction of the Kadhis Court-claim that Kadhis court had unlimited jurisdiction in matters that involved Muslim parties-whether article 170(5) of the Constitution and section 5 of the Kadhis Act conferred unlimited jurisdiction to Kadhis courts to hear and determine matters that involved Muslim parties-Constitution of Kenya, 2010, article 170 (5); Kadhis Court Act, section 5
Statutes-interpretation of statutes-interpretation of the scope of the words ‘questions of Muslim Law relating to personal status’ in article 170(5) of the Constitution and section 5 of the Kadhis Act-what was the scope of the words ‘questions of Muslim Law relating to personal status…’ as used in article 170(5) of the Constitution and section 5 of the Kadhis Act in regards to jurisdiction of the Kadhis Court
Civil Practice and Procedure-suits-determination of suits-where a party cited scholarly materials and personal views of an author-whether the Court was bound by the work of scholars and their personal views, which had not influenced policy and legislative making processes, in determining suits
The ex-parte Applicant was a Muslim lady married to the Interested Party in accordance with Sunni Islamic Sharia. As a result of the marriage, they had one daughter where upon the Applicant leaving her matrimonial home, was left in the custody of the child’s maternal grandfather's house. The Interested Party moved to the Kadhi’s Court Nairobi under a certificate of urgency and secured interim orders for custody of the minor pending hearing.
The ex-parte Applicant’s case was that the Kadhi’s Court was divested of jurisdiction or acted in excess of jurisdiction and that the interim orders granted were ultra vires premised on section 73 of the Children's Act 2007, which orders could only have been made or issued by a children’s court as stipulated in the Children’s Court Act,2001.
- Whether the Kadhis Court, as opposed to the Children’s Court, had jurisdiction to hear and determine issues relating to the custody, care or control of children whose parents were Muslims and professed Islam.
- What was the scope of the words ‘questions of Muslim Law relating to personal status…’ as used in article 170(5) of the Constitution and section 5 of the Kadhis Act in regards to jurisdiction of the Kadhis Court?
- Whether article 170(5) of the Constitution and section 5 of the Kadhis Act conferred unlimited jurisdiction to Kadhis Courts to hear and determine matters that involved Muslim parties.
- Whether the Court was bound by the work of scholars and their personal views, which had not influenced policy and legislative making processes, in determining suits.
Relevant Provisions of the Law
Constitution of Kenya, 2010
(1) The Constitution is the supreme law of the land and binds all persons and all state organs at both levels of government.
(2) No person may claim or exercise state authority except as authorized under this Constitution.
(3) the validity or legality of this constitution is not subject to challenge by or before any court or other state organ
(4)any law including customary law, that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
Article 169 (1)
Establishes subordinate courts which are:
a. The magistrates courts
b. The Kadhis Courts
c. The Courts Martial;
d. And any other court or local tribunal as may be established by an Act of Parliament, other than the courts contemplated in Article 162 (2) of the Constitution.
(1) if any person alleges that any of the rights of the child as stipulated in the Act have been or are being or are likely to be contravened, then, without prejudice to the matters in issue, that person may apply to the High Court for redress on behalf of the Child.
(2) the High Court shall hear and determine an application made by a person in pursuance of subsection (1) and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4-19 inclusive.
(3) the Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it or under this section including rules with respect to the time within which applications may be brought and references shall be made to the High Court.
There shall be courts to be known as children’s courts constituted in accordance with provisions of this section for the purpose of;
e. Conducting civil proceedings on matters set out under parts III, V, VII, VIII, IX, X, XI and XIII
f. Hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years
g. Hearing of a charge against any person accused of an offence under this Act
h. Exercising any other jurisdiction conferred by this or any other written law;
III. Reference to subordinate courts of any class, in the first schedule to the criminal procedure code, shall include children’s court.
IV. The Chief Justice may, by way of notice in the gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country.
On application of either a parent or guardian the court may grant custody of a child to that person. Section 83 is clear as to the factors that the court shall take into account in granting the custody order including:
(d) The ascertainable wishes of the child
(f) The customs of the community to which the child belongs
(g) The religious persuasion of the child
(j) The best interest of the child
Section 173 (1)
There shall be courts to be known as Children’s Courts to be constituted in accordance with the provisions of this section.
Kadhi’s Court Act
A Kadhis Court may have and exercise the following jurisdiction; namely the determination of questions of muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the muslim religion; but nothing in this Section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.
- The preamble to the Constitution of Kenya, 2010 (Constitution) acknowledged Kenya’s pride in its ethnic, cultural; and religious diversity, and determination to live in peace and unity as one indivisible sovereign nation. Article 170 of the Constitution established the Kadhis Courts and conferred jurisdiction to the Court, under clause 5, limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance relating to proceedings in which all parties professed Muslim religion and submitted to the jurisdiction of the Kadhis Courts. The Kadhi’s ’Court was a subordinate court established under article 169(1) (b) of the Constitution.
- Neither the Constitution nor the Kadhis’ Courts Act defined what personal status was, and neither did the relevant provisions mention the words protection, custody, guardianship maintenance or control of a child. The Children’s Act, 2001 (the Act) related to all children irrespective of their religious affiliations and or cultural background. The Act did not distinguish between a child of Muslim parents from any other child for purposes of protection under the law-custody, guardianship and maintenance.
- The long title to the Children’s Act stipulated that it was an Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; to make provision for the administration of children’s institutions; to give effect to the principles of the convention on the Rights of a child and the African Charter on the Rights and welfare of the Child and for connected purposes.
- It was worth noting that the Children’s Act came into effect in 2001 upon the acknowledgment of the need for a child focused international law that addressed the peculiar needs of children. On November 20, 1989, the United Nations General Assembly adopted the convention on the Rights of the Child (CRC) and in July, 2009, the Organization of African Unity (OAU) now African Union (AU) Assembly of Heads of States and Governments adopted the African Charter on the Rights and Welfare of the Child (ACRWC).
- Both international instruments contained universal set of standards and principles for survival, development, protection and participation of children. Subsequently, Kenya ratified both instruments and following its commitment Parliament enacted the Children’s Act, 2001. The Act incorporated all the rights and responsibilities of the children and consolidated all laws relating to children into a one stop single statute.
- There were differing schools of thought from the High Court with one school stating that the Kadhis’ Court had jurisdiction to hear and determine matters relating to custody and maintenance of children since they fell within personal status whereas another school of thought believed that there was no jurisdiction for the Kadhis Court to hear and determine matters which were reserved for the Children’s Court.
- A jurisdictional question went to the root of the Court and so the Court had to take it seriously. It was not a mere procedural technicality since a court of law could not arrogate itself of jurisdiction it did not have. Jurisdiction was conferred by statue or the Constitution but the Statute could not confer jurisdiction beyond the scope defined in the Constitution. A litigant who approached a court had to be clear which jurisdiction he wished to invoke.
- The High Court was established under article 165 of the Constitution as a superior court, which article also conferred jurisdiction on the Court. The jurisdiction of the Court to hear and determine judicial review matters could be found in articles 22, 23, 47, and 165 of the Constitution; Sections 8 and 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, 2015.
- The motion filed was properly before the Court for reasons that the motion was grounded on the statutory statement and verifying affidavit sworn by the ex-parte Applicant accompanying the Chamber Summons for leave to institute those proceedings. Order 53 of the Civil Procedure Rules was clear as to what ought to have supported the motion. The intention of that provision was to avoid verbosity and repetition of the same pleadings which were filed in the application for leave by requiring the motion to be filed in the same matter for leave.
- Child custody was a legal term used to describe the relationship between a parent and a child such as the right of the parents to make decisions for the child, and the parent's duty to care for the child. However the terminology personal status was not defined in Kenya’s statutes. A religious state, where religion was the law, unlike a secular state, established religion as a pertinent differentiating factor. In religious states, and more so in predominantly Islamic countries, the legal regime was divided into two-one for Muslims and the other for non-Muslims and the differentiation also applied to political and social life of the people. Kenya was a secular state. Article 8 of the Constitution was categorical that there would be no state religion. Therefore it was of cardinal necessity that except where it was expressly provided by the Constitution or the Statute, religion had to be distanced from the law. Therefore, the task before the Court was to interpret the law of the land, not in light of the tenets of the parties’ religion or religious affiliations but in keeping with legislative intent and the letter and spirit of the Constitution.
- Section 22(1) of the Children’s Act was clear that if any person alleged that any of the rights of the child as stipulated in the Act had been or were being or were likely to be contravened, then, without prejudice to the matters in issue, that person should have applied to the High Court for redress on behalf of the Child. Section 22 of the Act made it clear that where there was violation or threatened violation of the rights of a child including the right to religious education and to fulfillment of their own culture, practice, language and religion as stipulated under section 8 of the Act, then any person might have brought an application before the High court for an appropriate order, writ or direction.
- In the instant case, there was no application that sought declaration of any of the rights of the minor and neither was there an application alleging that the minor’s rights were being violated by being subjected to proceedings before the Kadhis Courts or if taken before the Children’s Court. Section 22 was in material particulars similar to article 22 of the Constitution on enforcement of the fundamental rights and freedoms espoused in the bill of Rights.
- Section 30 of the Children’s Act established the National Council for Children’s Services and its composition under section 31 included three persons representing religious organizations, nominated by the Episcopal Conference, the National Council of Churches of Kenya and the Supreme Council of Kenya Muslim (SUPKEM), respectively. The law would not have provided for inclusion in the National Council for Children’s Services of religious organizations including SUPKEM if the Act was inapplicable to the Muslim Children in matters of custody, guardianship, maintenance and generally the welfare of children whose parents profess the Islamic religion. The intention of Parliament was to enact an all-inclusive piece of legislation to apply to all categories of children without distinction as to their religious persuasion.
- In addition, the Court noted that the purposes and objectives of the Council included to exercise general supervision and control over the planning, financing and coordination of child rights and welfare activities and to advise the government on all aspects thereof. Furthermore, to ensure full implementation of Kenya’s international and regional obligations relating to children and facilitate the formulation of appropriate reports under such obligations among other many functions of the Council.
- Children’s Courts, just as other subordinate courts established under the Constitution including the Kadhis Court, enjoyed constitutional protection. Section 82 and 83(g) of the Act gave the Children’s’ Court the power and jurisdiction to deal with matters of custody of children irrespective of the religious persuasion of that child. That therefore, was a matter that needed no interpretation. Consequently, in the absence of any specific application by the Interested Party or 1st Respondent asserting that the rights of the minor had been or were being violated as stipulated in section 22 of the Act and article 22 of the Constitution, the Court would be overstepping its mandate if it was to wade into the arena of determining the question of rights of the Interested Party to appear before a court other than a Kadhis Court.
- Status and jurisdiction were different concepts. Status denoted hierarchy while jurisdiction covered the sphere of the Court’s operation. The Kadhis Court was a creature of the Constitution. The jurisdiction of the Kadhi’s Court was specifically defined under article 170(5) of the Constitution and section 5 of the Kadhi’s Court Act as- determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties professed the muslim religion and submitted to the jurisdiction of the Kadhi’s Court. Therefore, the jurisdiction of the Kadhis Court was determined by the existence of three factors;
- the subject matter of the claim or dispute;
- the party’s muslim faith; and
- The party’s submission to the jurisdiction of the Kadhis court.
- There was no dispute that courts which were specialized in Islamic law in other jurisdictions had the jurisdiction to hear and determine disputes relating to custody, guardianship and control of children. Furthermore, there was no dispute that from a plethora of useful persuasive authorities and scholarly articles from journals and elsewhere relied on by the 1st Respondent, in countries where Islam was the state religion, the applicable law to Muslims was Sharia law and therefore there was no way a dispute such as the one before the Court would be handled in a different court other than a religious court. However, In the Kenyan situation, it was clear that the Court of Appeal refused to be persuaded that the English law did not apply to Muslims.
- There was absolutely no infringement of rights of the child or the Interested Party where it was clear that unless both parties professing Islam submitted to the jurisdiction of the Kadhis Court then the matter would be resolved in the conventional courts. Therefore, the Court was not persuaded that the parties would be prejudiced or that their rights would be infringed or violated at all by the conventional courts hearing a dispute which though falling within the jurisdiction of the Kadhis Court, one of the parties refused to submit to the jurisdiction of the Kadhis Court. It ought to have been further appreciated that the Constitution and Kadhis Court Act limited the jurisdiction of the Kadhis Court. Thus, the law did not confer sweeping jurisdiction to the Kadhis Court.
- In the reply to the Application for stay in the matter, the Interested Party annexed to his affidavit a copy of application for interim custody orders before the Kadhis Court and in that application, it was expressly filed under sections 24, 82, 83 and 88 of the Children’s Act. What the Interested Party was doing was to ask the Kadhis Court to invoke the children’s Act in determining temporary custody of the minor but was not willing to invoke the same Act which stipulated that Children’s matters would be heard and determined by Children’s Court presided over by a duly appointed and gazetted children’s magistrate by the Chief Justice.
- The Kadhi’s Court could not claim unlimited jurisdiction which was not granted to it by the Constitution or the statute. The legislature in enacting the children’s Act was alive to the importance of religious issues and that was why the Act was so comprehensive that it took into cognizance religious persuasion and the customs and cultures of all the children who were in contact or in conflict with the law. The Act also created a National institution-Council for Children’s Services and incorporated the top most organ of Kenya Muslims-SUPKEM. Thus, the argument by the Interested Party and the 1st Respondent was dangerous as what they were asking the Court was to attempt to confer on the Kadhi’s Court jurisdiction of a Children’s Court.
- The Applicant approached the Court seeking to stop the proceedings before the Kadhi’s Court. No defence or replying affidavit was exhibited to show that the Applicant had agreed to participate in the proceedings before the Kadhi’s Court at the interpartes hearing. The Court noted that those proceedings were initiated to stop the proceedings before the Kadhi’s Court and therefore the burden of proof lay on the person alleging that the Applicant had submitted to the jurisdiction of the Kadhi’s Court. The Interested Party in seeking interim custody orders before the Kadhis Court did not seek to rely on any provisions of the Kadhis Court Act and albeit failure to cite provisions of the law would not in itself be fatal to the proceedings, the Interested Party did not find any provision in the Kadhi’s Court Act or the Constitution relevant.
- The Children’s Act was of universal character and that was the very reason why the application of Muslim law was not injected in the Act and the Constitution to extend to matters of parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of Muslim children. Unless the Constitution or the law were amended, the Court was not the right forum to exhaustively determine the legitimacy of the Children’s Act, the Kadhis Court Act and or to determine the matter under article 165(3) (b) of the Constitution as no substantive petition by the parties was placed before the Court for consideration.
- The Constitution and the Kadhi’s Court Act did not define what a question of Muslim law relating to personal status meant. It ought to have however been noted that even assuming that the Kadhi’s Court had jurisdiction to hear and determine cases involving custody of children, both disputants being Muslims, had to submit to the jurisdiction of Kadhi’s Court, failure to which, the jurisdiction of the Kadhi’s Court in the matter was expressly ousted.
- Section 5 of the Kadhi’s Court Act which replicated article 170(5) of the Constitution in part was couched in permissive terms to allow flexibility and discretion on the part of either party to a dispute raising questions of Muslim law relating to personal status, marriage, divorce or inheritance and who professed the Islamic religion to submit or not to submit to the jurisdiction of the Kadhis Court. Nonetheless, the provisions did not leave such party who declined to submit to the jurisdiction of the Kadhis Court empty handed. Under the Kadhis Court Act, an avenue was provided for resolution of the dispute either in the High Court or any subordinate court.
- Article 170(5) of the Constitution provided for the jurisdiction of the Kadhis Court. The mandatory use of the word ‘shall ’came before the limitation of the specified jurisdiction: ‘shall be limited to’. The word shall was used to limit the jurisdiction not to confer the jurisdiction. Furthermore, even where the parties professed the Muslim religion in matters relating to personal status, marriage, divorce or inheritance, and even assuming that custody of the child fell within the question of Muslim law relating to personal law status, a party who did not wish to submit to the jurisdiction of the Kadhis Court might have nevertheless filed their proceedings before the High Court or a subordinate court as nothing in section 5 of the Kadhis Court Act barred them from so doing.
- The spirit of the Constitution at article 170(5) and section 5 of the Kadhis Court’s Act was to encourage parties who were professing Muslims to file proceedings relating to matters affecting them and specified thereon, before the Kadhis Courts, but not to oust the jurisdiction of the High Court and or any other subordinate Court from hearing and determining any question, especially where one of the parties did not submit to the jurisdiction of the Kadhis Court. In other words, it was not mandatory jurisdiction conferred on the Kadhis Court. There had to be consensus between the parties that a matter of Islamic law of inheritance, divorce, marriage or personal status be determine in the Kadhis Court and where no such consensus existed, the party could not be compelled to subscribe to the jurisdiction of the Kadhis Court over the matter.
- The Kadhis Court was not a specialized court just as the courts contemplated in article 162(2) of the Constitution. If that were to be the case, nothing prevented the makers of the Constitution and the Kadhis Court Act or even the Children’s Act from stating so since the Kadhis Court Act pre-existed the 2010 Constitution and had not been amended to confer it with exclusive jurisdiction in the matters under consideration and more so on the issue of jurisdiction of the Court.
- In the instant case, the issue at hand was not clearly defined by any law of the land and although the Court had been urged to look elsewhere for the definition such as Sudan, Iraq, Tunisia and Egypt, the jurisdictions referred to were predominantly Muslim countries practicing Sharia Law unlike Kenya which was a secular state. Furthermore, whereas the Court appreciated the work of scholars on the subject, the Court was not bound by the writer’s personal views and his religious dispositions which had not influenced policy and legislative making processes and which were therefore not binding on the Court and the Court would not hesitate to adopt the views of the Kadhi as the law applicable in Kenya, especially when the thesis acknowledged the limited jurisdiction conferred upon the Kadhis Courts in Kenya and advanced the view of what the law ought to have been as opposed to what it was. Law making process in Kenya was participatory and not through desk research conducted by one individual for academic achievements. If the Kadhi persuaded the electorate to adopt his views on the matter then the Courts would be more than glad to apply the law if enacted.
- The Court was not persuaded to interpret the Constitution and the law liberally so as to accord with the wishes of the two protagonists that the Children’s Court had no jurisdiction to hear and determine matters that were before the Court; and that the Interested Party felt discriminated and his rights violated by being compelled to appear before the Children’s Court. That was in regards to the absence of any specific application seeking to declare the Children’s Act unconstitutional or discriminatory. Furthermore, the Court was unable to find that the cited Draft Principles of Freedom and Non-discrimination in the matter of Religious Rights and practice cited by the 1st Respondent were principles of law of universal application that the Court would have applied to such circumstances as those in the case.
- The best forum for the 1st Respondent and Interested Party to agitate for such principles was via a constitutional petition where they would have an opportunity to articulate what they considered to be discrimination in the matter of religious beliefs, rights and practices. The other irony in the Interested Party’s argument was that the High court was divested of jurisdiction to hear and determine matters which were impugned before the Court and as stipulated under section 5 of the Kadhi’s Court Act and article 170 of the Constitution, yet the appeals from the Kadhi’s Court go to the High Court for determination and all the way to the Supreme Court which were not specialized courts in matters religion
- Nothing stopped the Constitution makers from placing the Kadhi’s Court at the level of the High Court and Courts of equal status established under article 162(2) of the Constitution, and even making it clear in article 165(5) of the Constitution that the High Court’s jurisdiction in the matters falling under the jurisdiction of the Supreme Court and the Courts contemplated under article 162(2) of the Constitution was expressly ousted, if it was the wishes of the people of Kenya to oust the jurisdiction of the High Court in such matters where the Kadhi’s Court had jurisdiction.
- The Children’s Act was clear that in considering whether or not to grant custody of a child to one parent where there was a dispute, the Court would take into account the religious persuasion and the best interests of the child. There was no religious blasphemy as there was no evidence or allegation that the ex-parte Applicant had ceased being a Muslim. The Court was not prepared to accept the persuasion to decline jurisdiction and to declare that it or the Children’s Court had no jurisdiction to hear and determine the issues relating to the minor child subject of those proceedings. It was not parties who decided the jurisdiction of the Court but the law and the Constitution.
- Even if the Kadhi’s Court had jurisdiction, for as long as the ex-parte Applicant did not submit to the jurisdiction of the Court as stipulated in article 170(5) of the Constitution and section 5 of the Kadhi’s Court Act, the Court had no power to compel her to appear before that Court. Section 5 created an avenue for the parties in the case to appear before the subordinate Court –Children’s Court or the High Court. The law did not contemplate a situation where the other party refused to appear before the High Court or the Subordinate Court. The jurisdiction of the High Court and Subordinate Courts was conferred and limited by the statue laws and the Constitution.
- Children’s Court had elaborate provisions on what orders the Court could issue and what factors it ought to have taken into account in issuing such orders. The Children’s Act, like other statutes, was not enacted to apply to specific children of certain religious faiths. It applied to all persons who were defined as children. The best forum for determination of the custody of the minor irrespective of her religious persuasion was the Children’s Court, which had the duty of taking into account the religious persuasion of the minor. Article 170(5) of the Constitution favoured the approach because the Kadhi’s Court would not have jurisdiction to determine a matter where only one party accepted to submit to the jurisdiction of the Court which then would leave out the other party who was equally entitled to access justice through the Courts.
- Article 165 (6) of the Constitution conferred on the Court supervisory jurisdiction over subordinate courts and the Kadhi’s Court was one such court. Judicial review process challenged the lawfulness of the decisions of subordinate courts or tribunals or persons, bodies or authorities exercising judicial or quasi-judicial authority. The question of the proceeding before the Kadhis Court which also concerned dissolution of marriage was not for the Court to make any decision on as it was in the discretion of the parties to decide whether they wished to be heard by the Kadhis Court or by any other court. The ex-parte Applicant, however, did not challenge the jurisdiction of the Kadhi’s Court to hear and determine the aspect of the case that concerned the marriage between the ex-parte Applicant and the Interested Party.
Appeal partly allowed
- The Court declined to issue certiorari for purposes of quashing orders related to the custody, care and control of A.M.A. (minor).
- Judicial review orders of certiorari were issued for purposes of quashing all the proceedings and orders made or issued by the Kadhi’s Court Nairobi in Kadhi’s Court case No. 4 of 2016 between the ex-parte Applicant and the Interested Party in as far as those proceedings touch on the custody, control and welfare of the minor A.M.A.A.
- Court declined to grant prohibition as it was unnecessary as there were divorce proceedings pending before the Kadhis Court in the same matter
- As the existence of an appeal did not oust the jurisdiction of the Court, the Court saw no reason to stay the matter suo motu.
- Each party to bear its own costs.
||Operation of a Dumpsite near a Residential Dwelling is a Violation of the Residents’ Right to a Clean and Healthy Environment under the Constitution
Martin Osano Rabera and another vs Municipal Council Of Nakuru and 2 others
Petition No 53 of 2012
Environment and Land Court at Nakuru
D O Ohungo, J
February 14, 2018.
Reported by Ian Kiptoo
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Constitutional Law-fundamental rights and freedoms-right to a clean and healthy environment-enforcement of the right to a clean and healthy environment-claim that operation of a dumpsite near the Petitioners’ residence violated their right to clean and healthy environment-whether the Petitioners’ right to a clean and healthy environment had been violated by the 1st and 3rd Respondents’ operation of Gioto dumpsite near the Petitioners’ residence-Constitution of Kenya, 2010-article 42; Environmental Management and Co-ordination Act, 1999, section 87
Civil Practice and Procedure-suits-parties to a suit-joinder of parties-whether National Environment and Management Authority was properly enjoined in the suit as a respondent as opposed to an interested party.
The Petitioners being residents of Nakuru living near Gioto waste disposal site sought a declaration that their right to a clean and healthy environment under article 42 of the Constitution of Kenya, 2010 (Constitution) was violated. Furthermore, the Petitioners sought compensation, relocation and restoration of the waste disposal site and an order stopping the 3rd Respondent from depositing or permitting the depositing of waste at the site.
- Whether the Petitioners’ right to a clean and healthy environment had been violated by the 1st and 3rd Respondents’ operation of Gioto dumpsite near the Petitioners’ residence.
- Whether National Environment and Management Authority (NEMA) was properly enjoined in the suit as a respondent as opposed to an interested party.
Relevant Provisions of the Law
Constitution of Kenya, 2010
Every person has the right to a clean and healthy environment, which includes the right—
(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
(b) to have obligations relating to the environment fulfilled under Article 70.
Local Government Act (Cap 265) (repealed),
to establish and maintain sanitary services for the removal and destruction of, or otherwise dealing with, all kinds of refuse and effluent and, where any such service is established, to compel the use of such service by persons to whom the service is available.
Environmental Management and Co-ordination Act, 1999
any matter prescribed to be waste and any matter whether liquid, solid, gaseous or radioactive, which is discharged, emitted or deposited in the environment in such volume, composition or manner likely to cause an alteration of the environment.
(1) The object and purpose for which the Authority is established is to exercise general supervision and co-ordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment.
(2) a) co-ordinate the various environmental management activities being undertaken by the lead agencies and promote the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya;
n) develop, publish and disseminate manuals, codes or guidelines relating to environmental management and prevention or abatement of environmental degradation;
o) render advice and technical support, where possible, to entities engaged in natural resources management and environmental protection;
Prohibition against dangerous handling and disposal of wastes
(1) No person shall discharge or dispose of any wastes, whether generated within or outside Kenya, in such manner as to cause pollution to the environment or ill health to any person.
(3) No person shall operate a wastes disposal site or plant without a licence issued by the Authority.
(5) Any person who contravenes any provisions of this section shall be guilty of an offence and liable to imprisonment for a term of not more than two years or to a fine of not more than one million shillings or to both such imprisonment and fine.
- A clean and healthy environment was a fundamental prerequisite for life was not a matter that needed belabouring. It was for that reason that the drafters of the Constitution of Kenya, 2010(Constitution) saw it fit to provide for the right to a clean and healthy environment at article 42 within the Bill of Rights. Needless to state, Kenyans voted overwhelmingly in favour of the draft, thus giving their seal of approval to its provisions.
- A duty to have the environment protected for the benefit of present and future generations was imposed on both the State and every person under article 69 of the Constitution which among others required the state to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; to establish systems of environmental impact assessment, environmental audit and monitoring of the environment and to eliminate processes and activities that were likely to endanger the environment.
- Under article 69 of the Constitution, every person had a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecological sustainable development and use of natural resources. In short, the obligation to ensure a clean and healthy environment imposed on everybody – from the state to all persons be they natural, juridical, association or other group of persons whether incorporated or not.
- To further safeguard environmental rights and to facilitate access to court for purposes of enforcing the right secured by article 42 of the Constitution, article 70 of the constitution provided that if a person alleged that a right to a clean and healthy environment recognised and protected under article 42 had been, was being or was likely to be, denied, violated, infringed or threatened, the person might have applied to court for redress in addition to any other legal remedies that were available in respect to the same matter and that he did not have to demonstrate that any person had incurred loss or suffered injury.
- Provisions similar to those at article 42 of the Constitution were found at section 3 of the Environmental Management and Co-ordination Act, 1999 (EMCA). Under section 3(3) of EMCA, if a person alleged that the right to a clean and healthy environment had been, was being or was likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which was lawfully available, that person might on his behalf or on behalf of a group or class of persons, members of an association or in the public interest might apply to the Court and the Court would make such orders, among others, to prevent, stop or discontinue any act or omission deleterious to the environment; to compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and to provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other connected losses.
- After promulgation of Constitution of Kenya, 2010 and establishment of County Governments, the functions of refuse removal, refuse dumps and solid waste disposal were devolved to county governments pursuant to section 2(g) of Part 2 of the Fourth Schedule of the Constitution. There was in fact no dispute that the 3rd Respondent took over the operation of Gioto from the 1st Respondent and continued to do so as Gioto mainly received waste from Nakuru Town.
- The 1st and 3rd Respondents had not contested allegations by the Petitioners. If anything, the 1st and 3rd Respondents had acknowledged in its replying affidavit that Gioto garbage site presented a real environmental hazard to motorists and residents of the area. It further conceded that the 1st Respondent had faced sanctions from the 2nd Respondent as regards the manner in which they had operated Gioto.
- EMCA came into operation on January 6, 2000. Though no evidence was offered as to when Gioto waste disposal site was started, the 1st Respondent’s clerk deposed on January 23, 2013 that it had been in operation for several decades. It was therefore safe to assume that it pre-dated EMCA. Therefore, the 1st Respondent was required to apply for a waste disposal site licence from NEMA by July 6, 2000 in terms of section 89 of EMCA. The 1st Respondent did not obtain such a licence and as a result, the 2nd Respondent issued to the 1st Respondent an environmental restoration order. The said order stated categorically that no licence had been applied for or issued. Further, it stated that the site had not been fenced; it extended to the road reserve; waste was overflowing to the road; and the site was unmanned thus leaving it to cartels who harassed waste transporters thus leading to dumping at the entrance; and that the 1st Respondent had allowed youths to scavenge at the site thus posing a health risk. The order required the 1st Respondent to take several corrective measures including applying for a licence within three days.
- No copy of an application for a waste disposal site licence under section 89 of EMCA had been exhibited. One was therefore left to draw the irresistible inference that no application was made or that if it was made, a licence was not granted. The 1st and 3rd Respondents had not offered any evidence to show specific steps taken to address the issues that were raised by the Petitioners and the 2nd Respondent in its restoration order. The matters complained of affected not only the Petitioners but the residents of Nakuru at large. Though the 1st and 3rd Respondents had argued that they faced financial difficulties, that alone could not be an excuse. Clearly, the 1st and 3rd Respondents had operated and continued to operate the Gioto dump site in a manner that violated article 42 of the constitution.
- Whereas the 1st Respondent estimated the cost of rehabilitating the site at Kshs 32,000,000, a sum not considered to be so huge as to be beyond the 3rd Respondent, no specifics were offered as to how much of the amount had been raised and what specific strategies had been put in place to raise the funds which were needed. Though resources, both financial and material were much needed, the 1st and 3rd Respondents could not be excused from performing their obligations under article 42 of the Constitution on that score alone.
- The 1st and 3rd Respondents needed to show clear efforts to raise the funds from their own sources as well as external sources. Instead, the 1st and 3rd Respondents resorted to a general defence of lack of funds and lack of land. It could not be that the 1st and 3rd Respondents could do nothing about the situation yet they had both the constitutional and statutory mandate as far as waste disposal was concerned. Thus, the 1st and 3rd Respondents’ actions violated and threatened to violate the Petitioners’ right to a clean and healthy environment.
- Whereas NEMA had specific functions, the functions under section 9(2) of EMCA were couched in mandatory terms. NEMA’s powers to perform restorative measures or cause restorative measures to be performed under section 12 of EMCA were not mandatory. NEMA could not therefore be faulted for not taking it upon itself to carry out the restorative measures that were necessary at Gioto dump site. NEMA had also given a detailed account of the steps that it took with a view to enforce the restoration order. Such steps included charging the 1st Respondent’s clerk in court with offences under EMCA and regulations made thereunder
- NEMA was not just an investigator and a prosecutor. Its success could not be measured in terms of successful investigations and prosecutions. It had a bigger mandate: to be the principal instrument of government and the people of Kenya in the implementation of all policies relating to the environment. under section 9(2) of EMCA, NEMA had mandatory obligations to among others co-ordinate with lead agencies to ensure the proper management and rational utilisation of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya and to render advice and technical support, where possible, to entities engaged in natural resources management and environmental protection.
- NEMA acknowledged that management of urban waste and waste disposal site was a challenge across the country, not just in Nakuru County. Though NEMA had to be commended for discharging its investigative and prosecutorial powers in the case, it needed to do much more pursuant to its functions under section 9 of EMCA. It ought to have exercised its co-ordination, advisory and technical support functions with a view to ensuring the citizens’ right to a clean and healthy environment was safeguarded. Success of NEMA would ultimately be seen more in a clean and healthy environment for Kenyans than in anything else. Thus, NEMA was properly joined to the case as a respondent; it did not violate the Petitioners’ right to a clean and healthy environment.
- In view of the nationwide challenge posed by urban waste, The Court urged NEMA to actively get involved in looking for solutions and enforcing the law. NEMA was well placed and had a legal duty to assist the County Governments to come up with policies and strategies for dealing with the constant problem of urban waste disposal and management. NEMA needed to show that it had taken practical steps in waste disposal matters pursuant to its functions under section 9 of EMCA. That however did not mean that county governments would blame NEMA. The primary obligation in waste disposal and management rested with the County Governments.
- Though the Petitioners’ right to a clean and healthy environment under article 42 of the Constitution had been breached and though the Petitioners had sought a mandatory injunction compelling relocation of Gioto dump site as well as an order restraining further dumping of waste at the site, the solution to the problem required a delicate balancing act. The site received waste from the whole of Nakuru Town. That waste was being generated daily and it had to be deposited somewhere. The Court was not aware of any alternative waste disposal site for Nakuru Town. An immediate relocation order or an order stopping delivery of waste at the site might have sound enticing but would in reality be impractical. A cautious graduated approach would be more appropriate. Consequently, the Court was not persuaded to issue mandatory injunction compelling relocation of Gioto dump site or an order restraining further dumping of waste at the site as sought.
- The Petitioners sought compensation though no submissions were made on the nature and quantum of such compensation. That being the case, the Court was not persuaded that an order for compensation ought to have been made in the circumstances.
- A declaration issued that the 1st and 3rd Respondents had violated the Petitioners’ right to a clean and healthy environment under article 42 of the Constitution of Kenya, 2010 as regards the manner in which they had operated the Gioto waste disposal site.
- The 3rd Respondent would apply for a waste disposal site licence in respect of Gioto waste disposal site under sections 87, 88 and 89 of EMCA or other relevant legal provisions within 30 (thirty) days from the date of delivery of the judgment.
- NEMA would consider such application and process it pursuant to the relevant legal provisions within forty-five (45) days from the date the Application would be made.
- If no application for a waste disposal site licence was made as ordered above or if the terms of any licence granted by NEMA were not complied with, NEMA would make an application to the Court under section 90 of EMCA.
- NEMA would monitor compliance with the orders and cause the matter to be mentioned periodically as necessary to update the Court on compliance by the 3rd Respondent and compliance by NEMA itself.
- The Petitioners were awarded costs of the Petition. The costs would be paid by the 3rd Respondent.
||Contempt of Court Orders by Public Officers is a Violation of National Values and Principles of Governance under Article 10 of the Constitution
Miguna Miguna vs Cabinet Secretary Ministry of Interior and
Co-Ordination of National Government and 8 others
Constitutional Petition No 51 of 2018
High Court at Nairobi
G V Odunga, J
March 29, 2018
Reported by Ian Kiptoo
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Advocates-professional misconduct-failure by an advocate to appraise clients of orders of the court-whether counsel for the Respondent actions of not appraising the orders of the Court to his clients amounted to professional misconduct-Advocates Act, section 56
Civil Practice and Procedure-contempt of court-punishment for contempt of court-where a public officer violated orders of the Court-whether the Respondents conduct in the proceeding amounted to contempt and was thus a violation of national values and principles of governance under article 10 of the Constitution-Constitution of Kenya, 2010 article 10
The matter before the Court was a sentencing arising from the finding of contempt against the Respondents to adhere to the following orders;
- It was directed that the Petitioner was not under any circumstances to be removed from the jurisdiction of the Court. Instead the Petitioner was to be unconditionally released forthwith to appear before the Court. That order bound not only the Respondents but also the officers under them in whose custody the Petitioner had been placed;
- The Petitioner’s lawyers were to be granted access to the Petitioner; and
- Unless the Petitioner was released, the Respondents would not be granted the right of audience by the Court.
- Whether counsel for the Respondent actions of not appraising the orders of the Court to his client was professional misconduct.
- Whether the Respondents conduct in the proceeding amounted to contempt and was thus a violation of national values and principles of governance under article 10 of the Constitution. Read More...
Relevant Provisions of the Law
Nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the judges of the Court to deal with misconduct or offences by an advocate, or any person entitled to act as such, committed during, or in the course of, or relating to, proceedings before the Chief Justice or any judge.
- When the matter was called out, learned counsel for the Respondents informed the Court that despite his attempts to get through to the said Respondents he had failed to do so. In such an important matter that had been widely publicised in the media the Respondents would not only avoid the Court but also avoid getting in touch with their legal counsel. If that was the position, then it was clear that the said Respondents had displayed an arrogance of an unimaginable magnitude.
- That the Court had the power to punish learned Counsel for the Respondents for contempt was not in doubt. Section 56 of the Advocates Act provided for the action. Power had to be exercised sparingly and only where the Court was satisfied that a misconduct had been committed. In the instant case, learned Counsel for the Respondents position had been made difficult by the conduct of the clients he represented. Although learned Counsel for the Respondents ought to have gone an extra mile in ensuring that his clients were properly appraised of the orders of the Court, the Court was not prepared in the circumstances of the case to elevate his actions or inactions to that of professional misconduct.
- The Court was not prepared to believe that the 1st to 3rd Respondents were unaware of the orders of the Court. The said Respondents were in charge of the security systems in Kenya and if they were unable to have knowledge of the reports widely covered in the media then they did not deserve to occupy the position they did occupy since their positions were at the heart of Kenya’s security and safety.
- Contempt of court was no doubt an affront to judicial authority and therefore was not a remedy chosen by a party but invoked to uphold the dignity of the Court. The Respondents had no doubt conducted themselves in a most despicable manner not expected in the instant constitutional era. Those who disobeyed Court orders risked being declared by the Court to have breached article 10 of the Constitution of Kenya, 2010 (Constitution) which prescribed national values and principles of governance with the attendant consequences among other appropriate sanctions.
- In deciding what sanction to mete the Court had to reflect on the need to maintain the rule of law and to ensure that the authority and the dignity of Kenya’s Courts were upheld at all times and to stamp the Court’s authority and uphold the values and principles of governance enshrined in article 10 of the Constitution. In the instant case, the 1st to 3rd Respondents had not adhered to the oath of office which they took to inter alia protect the Constitution of Kenya including the national values and principles of governance.
- To the contrary the manner they had conducted themselves in the proceedings did not inspire confidence at all. That was contrary to article 74 of the Constitution which provided that a State officer would behave, whether in public and official life, in private life, or in association with other persons, in a manner that inter alia avoided demeaning the office the officer held. The provision proceeded to state that such an officer might, in accordance with the disciplinary procedure be dismissed or otherwise removed from office and where the officer was so removed, he or she was disqualified from holding any public office. The Court had been urged to impose very stiff sentence against the Contemnors. However, due to reasons which the Court could not fathom Parliament, in its wisdom, limited the powers of the Court to imposition of a sentence of not more than six months in prison or Kshs 200,000 or both.
- The Respondents were the ones in charge of security in Kenya. They were in effect in charge of execution of warrants of arrest. They had clearly shown that they had no respect for the rule of law and would not comply with the orders of the Court. Even if the citizens were to arrest them, they would still be placed at the disposal of their juniors and if they could disobey and disregard the orders of the Court with such impunity, The Court did not see how any of their juniors would execute the warrants against them or even hold in custody if arrested by the citizens.
- The Court, like any other Court of law, ought not to have made orders in vain. It had to not only make effective orders but orders whose execution could be carried out swiftly and efficiently and orders which it could supervise. It would not issue orders which from the circumstances of the case, there was a high likelihood that they would not be implemented whether rightly or not. Therefore, the most appropriate orders to make were declaratory orders and orders in the nature of a fine.
- Regrettably, the Court’s pecuniary limit in cases of fine was limited to Kshs 200,000. There were several acts of contempt and each act ought to carry its own penalty, the matter before the Court concerned the contempt found to have been committed by the contemnors. If there were other acts of contempt, the Petitioner was at liberty to pursue the same. Similarly, the Petitioner or any other Kenyan was at liberty to take any other or further action pursuant to the orders of the Court.
- A declaration that the 1st , 2nd and 3rd Respondents violated article 10 of the Constitution by failing to adhere to the rule of law in the sense that they brazenly disobeyed the orders of the Court. It was however not appropriate in the proceedings to declare them unsuitable to hold public offices. That was a matter for another forum.
- Each of the 1st, 2nd and 3rd Respondents were penalised to pay Kshs 200,000 personally. The said sum would be deducted directly from their next month’s salaries and the Deputy Registrar of the Court was directed to transmit the order of the Court to their respective employers forthwith.
||Imposing a Sentence of Hard Labour that is not given provision for is Unlawful
J K M v Republic
Criminal Appeal No 47 of 2016
High Court at Meru
A C Mrima, J
July 21, 2017
Reported by Ian Kiptoo
Constitutional Law-fundamental rights and freedoms-right to fair trial-right to be informed of a charge in a language accused understands-claim that language used was of a different dialect-whether the Accused right to be informed of the charge in a language he understood was violated as he claimed the Kimeru language used by the interpreter was of a different dialect-Constitution of Kenya, 2010, article 50 (2) (b); Criminal Procedure Code, section 207
Criminal Law-sentencing-hard labour-where a court imposed hard labour that was not in the provision-whether the sentence of ten years with hard labour was unlawful as it was not given provision under section 20(1) of the Sexual Offences Act, No. 3 of 2006- Sexual Offences Act, No. 3 of 2006, section 20(1)
Criminal Procedure-pleas-plea taking-procedure for plea taking-where a court recorded a guilty plea-where an accused was not given an opportunity to exhaust a defence in law-whether the Magistrate Court erred by entering a plea of guilty against the accused without according the Accused an opportunity to exhaust the defence of intoxication
Criminal Procedure-retrial-principles applicable in ordering a retrial- whether the Accused was entitled to a retrial of his case on the claim that the Magistrate Court trial was defective
The appeal before the Court was against the conviction and sentence resulting from a plea of guilty which was entered upon admission of the offence by the Appellant arraigned before the Senior Resident Magistrate on a charge of incest contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006.
The Appellant contended that he did not understand the proceedings since the interpreter used Kimeru language with a different dialect from the Appellant’s and that he effectively understood that he was being charged with threatening to harm the Complainant. He further contended that the plea was not equivocal and that the sentence was so severe in the circumstances.
- Whether the Accused right to be informed of the charge in a language he understood was violated as he claimed the Kimeru language used by the interpreter was of a different dialect.
- Whether the sentence of ten years with hard labour was unlawful as it was not given provision under section 20(1) of the Sexual Offences Act, No. 3 of 2006.
- Whether the Magistrate Court erred by entering a plea of guilty against the accused without according the Accused an opportunity to exhaust the defence of intoxication.
- Whether the Accused was entitled to a retrial of his case on the claim that the Magistrate Court trial was defective.
Relevant Provision of the Law
Constitution of Kenya, 2010
Article 50; Right to Fair Hearing
(2) Every accused person has the right to a fair trial, which includes the right-
(b) to be informed of the charge, with sufficient detail to answer it.
Criminal Procedure Code
(1) The substance of the charge shall be stated to the accused person by the Court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary;
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.
- The Court was duty bound to revisit the evidence tendered before the Magistrate Court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the Magistrate Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and gave allowance for that. However, in the instant case the matter did not proceed on for trial, the Magistrate Court did not have the advantage of observing the demeanor of the witnesses and hearing them give evidence.
- Section 207 of the Criminal Procedure Code had previously been subjected to court’s interpretation. The procedure and steps to be taken in taking a plea of guilty were clearly laid down as;
The narration of facts supplemented the explanation by the Magistrate Court of the ingredients of the offence.
- The charge and all the essential ingredients of the offence ought to have been explained to an accused in his language or in a language he understood;
- The Accused’s own words should have been recorded and if they were an admission, a plea of guilty should have been recorded;
- The Prosecution should have then immediately taken the facts and the Accused should have been given an opportunity to change or explain the facts or to add to any relevant facts;
- If the accused did not agree to the facts or raise any question of his guilt in his reply it had to be recorded and change of plea entered;
- If there was no change of plea, a conviction ought to have been recorded as well as a statement of facts relevant to sentence and the Accused reply.
- Upon the promulgation of the Constitution of Kenya, 2010 (Constitution) the people of Kenya gave unto themselves an elaborate Bill of Rights under Chapter Four. Article 50 of the Constitution dealt with the right to a fair hearing and sub-article (2) (b) dealt with the right of an accused person to be informed of the charge, with sufficient detail to answer it. The plea was taken in English and interpreted to Kimeru language. The Appellant did not raise any objection to the language used and instead proceeded to respond to the charge and its particulars. That was the case when the facts were presented to him. Therefore, the contention that the Kimeru language was of a different dialect and that the Accused did not understand what transpired in court was unsustainable and dismissed as an afterthought.
- In cases where an accused person pleaded guilty to an offence and facts were taken, the Court was duty bound to scrutinize the facts and to ensure that the facts disclosed the ingredients of the offence in issue. That was the only time when a court, in the further guidance of the law aforesaid, could proceed to convict the Accused person.
- In the instant case, the facts were clear that the Appellant was drunk when the alleged offence was committed. Under section 13 of the Penal Code, Chapter 63 of the Laws of Kenya, intoxication was a complete defence in law. The Magistrate Court ought to have further ascertained from the Appellant if he had any explanation to offer especially on the aspect of intoxication. Furthermore, the Magistrate Court ought to have declined to enter a conviction based on the facts then disclosed and would have instead entered a plea of not guilty so as to accord an opportunity to the Appellant to see if he could benefit from the defence. The Appellant raised the issue that he was drunk and did not know what happened both before the Magistrate Court and on appeal. Therefore, the plea of guilty was not equivocal.
- From the record, the Magistrate Court did not enter a guilty plea when the Appellant admitted the charge and the particulars but instead jointly entered a plea of guilty and a conviction when the facts were admitted. What the Magistrate Court failed to do was to enter a plea of guilty upon the admission of the charge and the particulars but it rightly convicted the Appellant upon admitting the facts. However, by invoking section 382 of the Criminal Procedure Code and without losing sight of article 50(2) (b) of the Constitution, the anomaly was legally curable.
- Section 20(1) of the Sexual Offences Act provided that anyone convicted of the offence of incest was liable to a minimum sentence of 10 years imprisonment subject to the provision. The Appellant was sentenced to a sentence of 10 years with hard labour. There was no provision for hard labour under the law. The sentence meted on the Appellant was hence unlawful and could not be allowed to stand.
- The principles upon which the Court could order a retrial were well settled. in general a retrial would be ordered only when the original trial was illegal or defective; it would not be ordered where the conviction was set aside because of insufficient evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction was vitiated by a mistake of a trial court for which the prosecution was not to blame, it did not necessarily follow that a retrial would be ordered.Each case depended on the particular facts and circumstances of that case but an order for a retrial ought to only have been made where the interests of justice required it and would not be ordered when it was likely to cause an injustice to an accused person.
- Applying those principles to the appeal and considering the gravity of the offence, the facts as recorded, the possibility of the availability of the witnesses most of whom were from the Appellant’s homestead and the fact that the Appellant was convicted barely a year ago from the date of the instant appeal; since that eliminated the risks of faded memory, the case was a case for retrial.
Appeal allowed; conviction quashed and the sentence set-aside. Consequently, the Appellant would be released into police custody and be produced before any court competent to try him within 5 days of the judgment.
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The Kenya Law Team
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