Sometimes we are forcefully reminded that, despite the Constitution being a document for the people, with politicians and public servants made accountable to the people, transparent and respectful in what they do, old habits still die hard.
Former Machakos senator Johnson Muthama, enormously wealthy, described as a ‘straight shooting’ opposition politician, found this out when the Secretary to the Firearms Licensing Board, purported to withdraw his firearms licence, because ‘you are unfit to be entrusted with a firearm anymore’.
Readers will immediately recognise that this hardly satisfies ‘transparency’, and clearly goes counter to the Constitution, which recognises a right to information and to fair administrative action, including knowing why some administrator has made an adverse decision.
What happened next was well described by Carmel Rickard, who kindly allows us to include her article from Juta’s LegalBrief.
MUTHAMA IN COURT
When fiery Kenyan opposition politician Johnson Muthama received a notice from the Firearms Licensing Board earlier this year saying that his firearm licence had been revoked, he moved quickly.
Just days later he was before the courts, challenging the legality of action that effectively made it unlawful for him to continue in possession of his rifle, pistol and shotgun, as well as all the ammunition for these weapons.
Judge George Odunga, who heard the preliminary matter early in February, blocked the government from taking the weapons from Muthama, by preventing the licence revocation from taking effect pending the outcome of a full hearing on the dispute.
That full hearing took place before judge Pauline Nyamweya and she has now delivered her decision: In a significant victory for administrative fairness, she found the firearms board had infringed on Muthama’s right to proper administration action and she prohibited any future revocation of his licence unless due process was followed.
Muthama was not the only political figure affected. That same month, authorities also targeted more than 140 opposition MPs, stripping them of their firearm licences as well as their security personnel.
This was widely seen as punitive action against those who had participated in the ‘swearing-in ceremony’ of an ‘alternative’ national figure-head after disputed elections late last year, protest action the official government described as ‘treason’.
In the wake of the high-profile ceremony, the government declared that the National Resistance Movement (NRM) of the opposition NASA was an ‘organised criminal group’, and action against Muthama and others was regarded as part of that strategy to outlaw the NRM.
In fact, the legal representatives of the Firearms Licensing Board said as much in court. They ‘implored’ the judge not to decide in favour of Muthama, saying he had ‘professed openly to be a member of the NRM, a proscribed organisation at the time the application was launched’.
The case put up by Muthama was very simple: The firearms board had given no reasons for its decision and the decision was thus not lawful.
He said he had held the licence since 1990 and had never been involved in an incident with firearms, nor had he been convicted of any offence under the Penal Code.
Muthama’s argument was that he had to be given an opportunity to be heard on the subject of the cancellation of his licence, yet he was allowed no chance to object to the proposed step.
The actions of the board were thus arbitrary and in breach of the Firearms Act as well as the Constitution, not to mention violating the Fair Administrative Action Act.
WHAT THE JUDGE DID
In her decision, Nyamweya said while the letter stated that Muthama ‘had been found … unfit to be entrusted with a firearm anymore’, no basis had been given for this conclusion.
The law required the licensing board to be ‘satisfied’ about the existence of circumstances that would make it necessary to cancel someone’s licence, but there was nothing to indicate the basis on which the board had ‘satisfied’ itself of this fact.
This and other factors showed the board had wrongly exercised its powers, and the letter written to Muthama was outside the powers of the Firearms Act and thus illegal.
The board and its officials were required to observe the requirements of natural justice and apply the provisions of the Fair Administrative Act, but they did not put up any evidence showing that they had complied with this requirement before they made the decision to cancel the licence.
‘The Court therefore finds that … there was procedural impropriety and unfairness’ in making the decision.
Just one problem remained: What about the future? Nyamweya said she could not prohibit the board from again revoking Muthama’s licence as the board could not be prohibited from undertaking their statutory powers and duties.
But she could stop them from carrying out their duties in a way that contravened the law. She thus made an order prohibiting the licensing board from revoking Muthama’s certificate ‘without following due process’ and complying with the Constitution and the Firearms Act. Finally, to underline the seriousness of the unlawful actions, she awarded costs against the board.
Tensions between Kenya’s political parties are not now as serious as they were at the time the board’s disputed letter was issued, but the case still has relevance: It illustrates the importance of complying with the requirements of fair administrative action – and that the court is willing to act independently, holding everyone to the standards of fair action required by the Constitution.
Some readers may be tempted to view this story as showing yet another fat cat politician/businessman able to use the courts for his own purposes.
But everyone is entitled to fair administrative action – and to information held by government, as we discussed last week.
Let’s hope that the Firearms Board remembers this case when they try to revoke firearms certificates of less well-connected people. And the same principle applies to every administrative body, whatever it decides, whether it is admitting your child to school, issuing or refusing you a licence for any sort of business or activity, allowing you to cut down a tree, move a cow from one place to another, show a film in public or organise a demonstration. Any decision such as this has to be made fairly and based on reasons because the Constitution says that ‘everyone’ has this right.
And the courts play their part by making a reality of that ‘everyone’ in Article 47: ‘Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair’. Everyone – however wealthy or poor, prominent or obscure, politically well-connected to government or opposed to it.
A final thought: there are far too many firearms in Kenya. Apparently there are about 750,000 guns owned by Kenyan civilians, but only 8-9,000 licensed. The military has 45,790 guns and the police 51,527.
It’s certainly is important that they are kept only by those who will use them responsibly. Unlike the US Constitution, ours includes no right to bear arms. Law, and quite strict law, is permitted about who can keep weapons and how they are to keep them.
The law requires that they not be given to anyone ‘of intemperate habits or unsound mind’ (dreadful expression!), or ‘for any reason unfitted to be entrusted with such a firearm’, and the person licensed must ‘at all times keep the firearm securely and in safe custody’ and take reasonable precautions to ensure it is not lost or stolen or available to any person without a licence.
This case does nothing to stop the authorities from seizing weapons from those not entitled to have them. All it does is to insist that proper procedures are followed, including proper information about reasons, when taking away a licence.
Is enough being done to keep us safe from the illegal guns?
By CARMEL RICKARD, JILL COTTRELL GHAI and YASH GHAI
Carmel Rickard is a columnist based in South Africa, who writes on legal issues in African courts