Vulnerability of the Constitution

It has been a struggle to protect the gains and promises of the constitution. The need for struggle is attributable to the fact that, as Yash Ghai says, the 2010 constitution was a people’s project that was forced down the throats of the elite by the masses. The elite, especially the political elite, has been almost violent in its efforts to undermine the constitution. Most disappointingly, these efforts to undermine the constitution come from prominent figures in both opposition and government, not least the President.

But one strategy for diminishing threats of violation of the constitution, or even making amends when the constitution is violated, has worked fairly well. That is public interest litigation (PIL). Article 22, which supports, even encourages, the filing of public interest cases, has proved to be one of the most revolutionary provisions of the constitution.

Public Interest litigation

In a nutshell, PIL involves anyone going to court based on public interest considerations, to challenge a decision or action that is, or is likely to be, unconstitutional. Ordinary court cases are brought by a person who has (or will be) personally affected by the decision or action complained about. You can’t go to court to complain that someone has broken a contract and caused loss, if you have not been caused loss. But under PIL, you can go to court to complain that someone has violated, or is about to violate the Constitution, even if you are not personally affected provided that all or a large part of the public will be affected. The motivation for PIL is therefore not personal gain but public good with the aim of strengthening the rule of law.

Before 2010, courts insisted that only the Attorney General —not just any citizen—could sue on behalf of the public. But it is open secret that, perhaps with the exception of James Karugu, all other Kenyan attorneys general have been extremely wobbly in defending public interest and the rule of law.

Perhaps the best known pre-2010 PIL attempt was by Wangari Maathai, who, in 1989, went to Court to try and stop Kenya Times Media Trust constructing a skyscraper right in the middle of Uhuru Park. The Court hastily dismissed her because, in its view, she could not show that she would be personally affected by the construction of the building or even that the effect on her would be greater than that of any other member of the public. This followed a barrage of verbal attacks, castigating her as anti-development, led by then President Daniel Moi.

But the 2010 constitution changed all that. The best testament to the potency of the new provision is the many cases brought by various civil society organizations such as Katiba Institute and individual citizens like Okiya Omtatah and Isaac Aluoch Polo Aluochier. Through efforts motivated by the public interest these institutions and individuals have secured some constitutional rights and stopped in their tracks Presidents and other senior government officials trying to violate the constitution.

Kibaki stopped in his tracks

Perhaps the best known PIL case, soon after 2010, was that brought against President Mwai Kibaki, when he proposed to appoint an all-male cast to the positions of Chief Justice, Attorney General, Director of Public Prosecutions (DPP) and Controller of Budget. The petitioners argued that Kibaki had committed at least four sins. First, despite the constitution stating that there has to be gender equity in appointments, none of the appointees was a woman. Second, the government was under the nusu mkate arrangement (coalition government) and the law required the President, before making any appointment, to consult the Prime Minister. He had not. Third, all the appointees, save for the AG, had to be competitively recruited and not handpicked as Kibaki had done. The court spoke quickly and firmly and found the President had violated the constitution — forcing fresh, more elaborate and open recruitment processes to take place.

Kenyatta’s transgressions

Several PIL cases have often found Uhuru Kenyatta violating the constitution. In a decision delivered in 2016, in a case brought by Isaac Aluochier, Justice Isaac Lenaola found that Kenyatta and Ruto had violated the Constitution between 2010 and 2013 by serving as party officials while they were cabinet ministers in Kibaki’s government. And then, just in December 2016, Justice Louis Onguto, in a case brought in the public interest by Marilyn Muthoni, Daisy Amdany and the Centre For Rights Education and Awareness, found that Uhuru had violated the constitution by appointing a Cabinet in December 2015 that was not two-thirds gender. compliant.

Protecting human rights

Most of the PIL cases have been brought to protect or affirm people’s basic economic, social and cultural rights, and not necessarily against the political elite. Cases like Satrose Ayuma, Mitubell, City Cotton, and Kepha Omondi were brought to stop arbitrary evictions, especially in informal settlements. In the past, evictions were commonplace and, worse, were carried out in the most violent manner. Through a string of cases asserting the right to housing and decrying illegal evictions, courts have stopped such evictions on various occasions and even set out guidelines for what must be done for an eviction to be considered legal. Luckily, last year Parliament took the cue from the courts and incorporated those guidelines in the Land Act.

A second illustration relates to rights of minorities and marginalized groups. A critical consideration during the development of the new constitution was the public acknowledgement that Kenyans and their governments had been extremely oppressive of marginalized groups and minorities. There was a need therefore to provide, in the Constitution, for protecting those groups, such as women, ethnic and racial minorities, persons with disabilities and sexual minorities. But oppression of such groups is prevalent worldwide as such groups lack political clout —either because of historical entrenched discrimination or because they are numerically insignificant. Courts are therefore critical for their protection, since courts, unlike the legislature, are structured to be immune to political populism. Through public interest cases those groups have been able to get legal protection and have their rights affirmed. Since 2010, there has been cases demanding inclusion of marginalized groups in appointments to state and public offices, including nomination to parliament and county assemblies; there have been cases affirming the constitutional rights of sexual minorities, including their rights to associate; there was a case decided by the Court of Appeal affirming the right of Muslim girls to wear hijab to protect their religious rights; there have also been many decisions on the right of women to be treated equally.

Citizen initiatives

A most encouraging aspect of PIL is that, in numerous parts of the country, citizens have been able to step up and bring such cases with no, or very minimal, assistance from lawyers. A number of citizens have litigated groundbreaking cases on failure of county governments to facilitate public participation in budget making processes and other critical decision-making processes. PIL, indeed, was intended as an accountability tool not just for lawyers, but also for citizens. To facilitate citizens’ use of PIL, the constitution demands that the courts should keep formalities relating to the proceedings at a minimum. They are even supposed to allow proceedings to be started on the basis of informal documentation. It is incontestable that the judiciary remains the organ of the state most genuinely interested in fostering the constitution. Citizens can do great service to the constitution by using PIL to help the judiciary protect and affirm the constitution. After all it would seem that the public have only the constitution and the judiciary to count on to protect them from an elite that is too happy to eviscerate the rule of law.

Future Katiba Corner articles, over next few months, will take individual PIL cases and explain why they were started, what the result was and why they are important.

By Waikwa Wanyoike

The author is the Executive Director of Katiba Institute.