Supreme Court takes critical step in resolving a constitutional dilemma

Many laws rely on administrative actions to resolve disputes.

Access to court is a constitutional right, and the constitution guarantees an independent Judiciary, in part, to protect that right. Access to courts and an independent Judiciary does not mean, however, that the courts are the only place where disputes can be resolved.

Article 47 of the Constitution recognises that many disputes will be resolved through administrative action. Article 47 states that administrative actions must be “expeditious, efficient, lawful, reasonable and procedurally fair” and allows administrative decisions to be appealed to a court or independent and impartial tribunal. We know the courts are overstretched and may not always be the best way to resolve a dispute. Still, recent cases have questioned the extent to which administrative actions can effectively deal with disputes.

Can cases be effectively dealt with outside courts?

Many laws rely on administrative actions to resolve disputes – like by appealing to the Cabinet Secretary or complaining to a specific agency such as the Commission on Administrative Justice. Public institutions like universities have internal disciplinary procedures and appeal systems. The Fair Administrative Action Act (s. 9) insists that if an administrative action is available to resolve a dispute, it must be used – or as advocates say, ‘exhausted’ – before the dispute can be raised in court. This exhaustion requirement, we shall see, is too simplistic.

Administrative actions can be a very effective way to resolve disputes quickly without overburdening the courts. They can be more efficient because they are usually more streamlined and cost-effective than court processes. They can also be better at answering technical or specialised questions. Administrative agencies often have specialised expertise that courts do not, which may result in a more informed decision than a court could provide. Many disputes may be minor, and going to court would be too expensive.

A dilemma

Yet, there is a tension between an individual’s right to access an independent Judiciary, and the ability to bypass the judicial system by relying on administrative actions. Those tensions concern whether administrative actions will be fair, will impinge on the Judiciary’s authority to resolve disputes, or will unfairly curtail an individual’s right of access to the courts. And if administrative actions have been exhausted, courts often review only the administrative decision-making process, not the underlying rights and wrongs. The exhaustion requirement creates a real risk that a person may not have access to the courts to resolve disputes or that critical constitutional questions are never resolved.

Some internal administrative mechanisms are not procedurally fair. For instance, some are informal or decided by a political appointee rather than an independent agency. There has been a trend away from appeals to ministers (Cabinet Secretaries here) because they are too much part of the system that made the original decision that is being appealed.

Yet, even if an administrative action is fair, a debate has long existed over whether administrative agencies can decide constitutional questions and whether someone disappointed by a decision must first bring constitutional questions to another administrative agency before going to court.

The Supreme Court’s decision last year in NGOs Co-ordination Board v EG & 4 others [2023] KESC 17 (KLR) has provided some guidance. The court held that a provision requiring that complaints relating to decisions by the NGO Co-ordination Board first be decided by a CS (a political appointee) did not apply because the complaint concerned the constitutional question of whether the right to freedom of association had been violated.

However, the judgment may be interpreted in several ways: it is unclear whether the judgment mainly turned on the fact that the administrative process did not apply to the dispute or that the decision concerned a constitutional question that could only be decided by the courts, not a CS.

The Supreme Court’s new decision

Over the recent holidays, however, the Supreme Court issued a judgment in Nicholus v Attorney-General & 7 others, SC Pet E007 of 2023, that addressed one of these concerns: must someone exhaust an administrative action before raising a constitutional claim before a Court? Nicholus had filed a petition before the Environment and Land Court challenging Nema’s decision to allow an organisation to open a gold mine on his property and KPLC’s decision to put electrical poles on his property without permission.

He claimed, among other things, that the decisions violated fundamental rights and freedoms guaranteed under the constitution. Nema and KPLC argued that Nicholus’s petition should be dismissed because he had not exhausted administrative actions before filing his petition.

The ELC and the Court of Appeal both found that administrative remedies existed (for example, appeals from Nema’s decisions should go to the National Environmental Tribunal) and that Nicholus did not use them. The Supreme Court reached a different conclusion. It focused on Nicholus’s claims that his fundamental rights and freedoms had been violated. It noted that under Article 23 of the Constitution, the High Court has ‘original jurisdiction’ to hear claims regarding fundamental rights and freedoms. Original jurisdiction means that the High Court, not any other court or administrative agency, is the first place to go to resolve the dispute. The court concluded that because the ELC has the same status as a High Court, it had original jurisdiction to hear claims relating to fundamental rights and freedoms. The requirement that administrative actions be exhausted did not apply to Nicholus’ claims.

Based on this, it appears that a person alleging a violation of a fundamental right or freedom has a choice: use an administrative action, if one is available, to decide the issue or choose to bypass the administrative action and go directly to the High Court or a court of equal status. The judgment makes sense. It preserves the High Court’s original jurisdiction while allowing a claimant to decide whether the efficiency and expertise of an administrative action outweigh the right to go directly to the High Court. And it is consistent with Article 21(1), which states that fundamental rights and freedoms are essential to democracy and the foundation of successful social, economic and cultural policies. They must be protected and enforced, and the Judiciary is best placed to do this.

However, much more needs to be done. Nicholus addressed violations of rights and fundamental freedoms. But what about other issues (not involving human rights) that require constitutional interpretation and application? Must those go through an administrative action before the courts will address them? Other questions regarding what makes an administrative process fair – including the procedures adopted and decision-makers appointed in administrative actions – remain unresolved. These questions are especially important given that most existing administrative actions were not drafted to meet constitutional standards.

Can Parliament help?

Parliament need not wait for the Judiciary to address these issues. As recent cases make clear, the Judiciary can reach an answer to a specific dispute but cannot craft a comprehensive answer to these questions. Parliament should take the initiative by reviewing laws that include administrative actions and amending those that do not pass constitutional muster.

Until these issues are resolved clearly and concisely, the benefits of the administrative actions will be illusory. If we want administrative actions to work, we must know where to go to resolve disputes before they arise, not after. If it is unclear when an administrative action must be exhausted, those actions are less likely to be used, and courts will still be clogged with cases that could be better decided through an administrative process. NGOs Co-ordination Board, for instance, took 10 years to resolve, and Nicholus, which has been in the courts since 2020, is now back where it began at the ELC.

The more confusing the rules are, the more likely people will make the ‘wrong’ choice and be denied access to the courts. In short, getting answers after years of litigation defeats the purpose of administrative actions. Although it is impossible to provide absolute certainty on when administrative actions must be used, Parliament must do more to clarify the lines and guide the public.

The author, Chris Kerkering, is the litigation manager at Katiba Institute.

This article was first published by the Star Newspaper



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