Various actors are getting used to the Constitution, and the process is perhaps improving.

The courts’ powers to declare law unconstitutional, and their willingness, are crucial to maintaining the “rule of law” in Kenya – a phrase that appears seven times in the Constitution.

It might be interesting for readers to know a bit more about how this is done.

It is perhaps more common than you might imagine, though more cases claiming unconstitutionality of law are rejected than succeed. Kenya Law lists 49 Acts and 10 sets of regulations or rules declared unconstitutional – usually individual sections or rules and often over many cases (see https://tinyurl.com/KLUnconLaws). Most of the cases I mention here are included there.

2022 cases

I located 18 cases in 2022 alone holding some sort of law unconstitutional. Probably a different search strategy would uncover more.

In an election year, several concerned election law: not requiring the photos of candidates for deputy president or governor on ballot papers; giving the IEBC powers that the Constitution gives to the Registrar of Political Parties; an amendment to the Supreme Court Presidential Election Petition Rules; a section of the Political Parties Act requiring sitting MCAs who change party before the coming election to leave their seats; regulations requiring independent candidates to supply their supporters’ ID copies; requiring candidates for MP to have university degrees; regulations about changing voters’ registration location; the Electoral Code of Conduct giving the IEBC’s Enforcement Committee the power to conduct hearings and call witnesses.

Some were about criminal law: two about minimum sentences in the Sexual Offences Act, one about detaining people accused or convicted of offences, but who are suffering from mental illness, “during the President’s pleasure”. One held that changes to the National Police Service Act expanding police ability to use firearms were unconstitutional.

One court held unconstitutional a provision saying that no order of annulment of marriage could be made unless the petition was made within one year of the “marriage”. Another that sections of the Law of Succession Act were unconstitutional because of gender discrimination.

One held that s. 107 of the Tax Procedures Act was unconstitutional because it made the KRA complainant, investigator and prosecutor. And another the HELB legislation was unconstitutional because it did not limit the interest that could be claimed from a borrower who defaulted in the same way as the Banking Act does.

The grounds of unconstitutionality are varied. Several of the courts relied on absence of public participation, usually citing the national value in Article 10. Article 27 on equality and non-discrimination was used most often – for example, on gender and succession, marriage annulment, detention at the President’s pleasure, in the HELB interest case and the moving of electoral registration case. Article 26 on the right to life was used in the police firearms case, Article 28 on human dignity was invoked in two, Article 50 (fair trial) in the marriage annulment case); Article 38 – right to vote and stand – in several election related cases; Article 47 (fair administrative action) in the moving registration case; Article 43 on economic and social rights in the HELB interest case. This is not all; the President’s pleasure case cited eight Articles.

A few of these decisions were, to my mind, dubious, but their correctness is not my point.

What do the judges actually do?

Sometimes the judge/s simply hold that some provision is unconstitutional – as though they are crossing it out.

One technique avoids having to declare a law unconstitutional. This is for the court to interpret the provision of an Act or regulation in the way that most brings it into line with the Constitution. The Constitution urges courts to do this especially where the issue involves human rights (Article 20(3)(b)). It can only be used if there is something unclear about the provision, if one can wonder. “Did they mean this…. Or this….?”

But lawyers can often find uncertainties in language. However, it does not seem to have been used much, at least explicitly, in Kenya. It does have advantages – it is less confrontational to say, “We believe you intended to pass law that complies with the Constitution” than “This legislation passed by Parliament is unconstitutional.”

A related techniques is often called “reading down”. This is sometimes defined as giving a provision that is too broad, a narrow interpretation to make it constitutionally valid.

The other technique is called “reading in” and involves adding something that is not there in order to make the law constitutional.

Sometimes Kenyan courts have, in my view, gone a bit further than the first technique. And though they have sometimes said, “It is for Parliament not the courts to amend laws,” they have, in fact, done just that.

In the cases saying a certain sentence is mandatory for a certain crime, the courts have basically changed a mandatory “imprisonment for life” to “a maximum of imprisonment for life”, or “not less than twenty years” to the same. (And the Court of Appeal has recently changed the concept of “life imprisonment” to mean a specific term fixed by the sentencing court).

A 2022 case essentially added to forms prescribing format of ballot papers a requirement of photos of candidates for deputy president or governors. Another inserted an exception for the last 180 days before the election into the provision about MCAs changing party.

Arguably the Constitution sometimes allows such changes. Its sixth schedule (Annex) says, “All law in force immediately before [2010] … shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.” This was quoted in the succession case, but then the judges went on to declare the sections unconstitutional. Of course, this provision is no use for dealing with laws made after the Constitution (like the elections and political parties laws). Nor is it clear how far it intended people to go – just reading “Minister” as “Cabinet Secretary”, for example, or really changing the substance of the law.

Government must be there

A few of these cases do not have government as such as a party, though they are brought against government agencies. Some years ago the Supreme Court said, “the High Court, ought not to decide upon the constitutionality or unconstitutionality of a statutory provision, without the involvement of the Attorney-General as a respondent or as amicus curiae. … it is not a private matter, but rather, it is of a public nature, and it affects the public interest.” It is important that the arguments for the legislation are properly put.

 In the Irish Republic when a case is brought challenging constitutionality of a statute, notice must be served on the AG. We need such a rule.

If they do not accept a court decision on unconstitutionality, they should appeal. If they accept it, they should say so.

Parliament is aware of the court decisions – if sometimes resentful – and is more concerned if member are personally affected. A bill now before Parliament would amend election laws, including removing provisions about recalling MPs, because these were declared unconstitutional in 2017. But there is apparently still no effort to enact a recall law that would satisfy the Constitution.

I looked at 2022 cases hoping that by now it would be clear if there was an appeal. It takes a long time for cases to get on appeal (if they do). In 2023 the Court of Appeal dealt with one on unconstitutionality decided by the High Court in 2019!

Various actors in this law-making and law-scrutinising business are getting used to the Constitution, and the process is perhaps improving. The courts – and the lawyers before them – could still improve their techniques on this issue. At present there remains something of a mess. It is not easy to know – certainly not for the ordinary person – what the law actually is. This seems to be a violation of the rule of law.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-04-07-ghai-the-rule-of-law-and-unconstitutional-laws/

Image: FILE