NAIROBI, Kenya, Feb 8 – Legal experts and human rights activists are urging the courts to set exceptional precedents to ensure that the new freedoms in the Constitution are not abused.
This follows concerns over Article 22 of the new Constitution which allows any person the right to institute court proceedings if they feel that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or is threatened, as opposed to the former Constitution.
In effect, Article 22 removed restrictions imposed by locus standi, which demanded that a person who intended to sue demonstrated how the matter in question was going to personally affect them.
Since the promulgation of the new Constitution on August 27 2010, Kenya’s have continued to take advantage of this provision, by filing numerous cases in court to challenge various actions by the government and its institutions.
Last week, the Court of Appeal suspended the vetting of judges and magistrates until an appeal lodged by a law student is heard and determined.
The student, Dennis Mogambi had appealed against a High Court order that threw out a case he filed challenging to the legality of the vetting process.
Mogambi argued that if allowed to proceed, the process would be unfair to the judicial officers since the officers will not have a right of appeal to decisions reached by the vetting board.
Another case has also been lodged at the High Court in Malindi by Emmanuel Boki Kibagendi – a prisoner- challenging the decision by the Judicial Service Commission (JSC) to petition the President to suspend Deputy Chief Justice Nancy Baraza.
On the same matter, Solomon Gichira, a researcher had petitioned the Judicial Service Commission seeking the ejection of Baraza for misconduct in an alleged incident with a security guard Rebecca Kerubo.
The motions by the three will have a bearing on the outcome of the processes even though they are not necessarily direct parties in the matters involved.
The Executive Director of Kituo Cha Sheria Priscilla Nyokabi firmly believes that the ultimate responsibility of protecting purposes of the Article 22 of the Constitution squarely lies on the Judges.
Nyokabi argues that the removal of the locus standi restrictions in the Constitution was an excellent move but that judges must be able to carefully draw the line between what is public in public interest and what is not.
She said the current obsession by judges to “give injunction orders like biscuits” may not go down well with the country especially at a time when the country is preparing for the general election for which there isn’t a definite date.
“The fact that someone goes before the court does not mean that they have to get the orders; if you look at the decisions in recent days you wonder where in them there is public interest. The public voted for the Constitution and by effect voted for the process of vetting of judges,” said Nyokabi.
“We are going to a period of very critical timelines including the elections, if there are injunctions then we cannot move. This is a test for the Judiciary and it must just pass the test,” she added.
She asserted that the judges also erred in blocking the tribunal set up to investigate her conduct from summoning her arguing that the tribunal was properly constituted within the law.
Nyokabi was also of the view that judges issuing orders to suspend the process of vetting judges could send a wrong signal of opposition to the vetting process.
According to Nyokabi, the issuance of orders must be cognizant of what the interests of the people of Kenya are, whereas people are encouraged alternative dispute resolution mechanisms.
She said that judges should consider the effects the injunctions issued in the process of implementing the constitution like the in the case against Finance Minister Uhuru Kenyatta following the failure by Uhuru to present budget estimates in the prescribed time.
In January this year, Justice David Majanja dismissed the petition seeking to have Treasury refund Sh368 billion to the Consolidated Fund.
Justice Majanja said that granting such orders would have set in motion “a chain reaction whose effects would have been grave and more harmful to the process of implementing the Constitution.”
He was explicit his decision to dismiss the petition was not a vindication of Uhuru’s actions and that the DPM should have tabled an Appropriations Bill as required by Article 221 of the Constitution, before seeking Parliament’s consent to withdraw money from the Consolidated Fund.
Nyokabi is urging courts to exercise caution while giving conservatory orders like in the case where the High Court blocked a by-election in Kamukunji constituency with just two days remaining.
According to Atsango Chesoni the former Deputy Chairperson of the Committee of Experts who drafted the constitution, it was proper for locus restrictions to be removed as they were used to stifle the course of justice. She urged the country to learn to live with the possible outcomes of litigation.
She said that it was now possible for lawyers to pursue matters in the interest of those people who are weak and indigent.
Last Thursday, the High Court barred members of the public and authorities from discussing whether Kenyatta and Eldoret North MP William Ruto are eligible to vie for the presidency.
Justice Lenaola issued the directive during the mention of a case in which three voters and two civil society organisations want to bar the duo from contesting the presidency following their indictment by the International Criminal Court (ICC) for crimes against humanity.
The move has elicited sharp reactions with legal and rights experts saying that the order was an infringement on the freedom of expression.
“It is an absurd order, matters of elections are for public debate including on the possible candidates so it sort of infringes on other freedoms,” said the former Chairperson of the Kenya National Commission on Human Rights Florence Jaoko.
Among the cases that suffered as a direct result of the locus standi restrictions include a case by the late Laureate Nobel Wangari Maathai against the construction of complex at Uhuru Park.
Maathai had sought a temporary injunction restraining the Kenya Times from constructing a proposed complex in the recreational park located in the city.
She was at the time the coordinator of the Green Belt Movement but sued on her own behalf. The defendant (Kenya Times) objected for lack of locus standi, a contention that the court upheld.
She however managed to block the construction through protests.
Beneficiaries of the relaxed locus regulations include the Non Governmental Organizations like Kituo Cha Sheria which won in a petition where its director wanted inmates to be registered ahead of the 2010 constitutional referendum.
The High Court ordered the then Interim Independent Electoral Commission (IIEC) to gazette prisons as polling stations and that they facilitate the registration of all eligible inmates within 21 days to enable those who wish to vote in a referendum to do so without any hindrance following a spirited petition for the inmates by Nyokabi.
The IIEC contended that the application was defective since the petitioner had no locus standi to file the action as she had not alleged that any individual right guaranteed by the Constitution had been violated with respect to her.
The chairman of Parliament’s Legal Affairs Committee Ababu Namwamba has insisted that the courts must use their powers to dismiss all frivolous applications because the doors have been opened for all manner of litigation.
He said that the removal of locus standi limits did not also take away the power of judges to determine a matter as flippant, a power he maintained that the judges invoke.
The Budalangi MP affirmed that the Constitution must be interpreted in a manner that advances its purposes, values, principals; manner which advances the rule of law and the fundamental freedoms in the Bill of Rights.
Namwamba challenged Kenyans to be continuously aware of their rights and responsibilities but not rush with every matter to court.