A quick Google search of the Star for “unconstitutional” produces results like:

1. The Supreme Court has said the mandatory death sentence is unconstitutional
2. Uhuru has declared an unconstitutional state of emergency over Kenya-Cord
3. Offence of misuse of telecommunication device used to charge bloggers declared unconstitutional
4. New education policies unconstitutional, MP.

Sometimes, such a statement reflects a court decision, and sometimes there is no court decision, but someone feels something is against the Constitution.

We usually talk of something being unconstitutional when a person, who is supposed to act in accordance with the Constitution, does the opposite. Most often, this is an official person or institution: The President, the police, Parliament, a governor and so on.

Everyone may interpret the Constitution. Some people do it as part of their work. A Speaker of the National Assembly may have to do so (eg when deciding whether a Bill concerns counties and must go to the Senate). The police may have to do so (eg when deciding how long they can keep a person in detention). County governments must constantly decide what is within their constitutional powers. Human rights commissions must constantly interpret the Constitution.

But the courts have the last word on whether something is constitutional. They can only do so if someone takes the matter to them: Courts cannot start cases on their own. (Indian courts have done so to enforce the human rights provisions of the Indian Constitution, but this is very unusual.) Our Constitution makes it simple to bring cases before the courts.

ACTING UNCONSTITUTIONALLY IS NOT NECESSARILY A CRIME

The only way to become President of the Republic of Kenya is to win an election (or be Deputy President when the President dies or is removed), and to be sworn in according to the Constitution and law. Anyone else who pretends to take the position of President could be said to be acting unconstitutionally. But in truth, they are simply doing something constitutionally meaningless. Whether their behaviour is positively illegal cannot be decided just by reading the Constitution: We need to read the Penal Code. The Constitution does not make any behaviour a crime. If it says “abortion is not permitted”, the Penal Code again tells us when abortion is a crime. The Constitution says that freedom of expression does not cover hate speech, this does not make something that might be called “hate speech” a crime. A separate law does this.

Acting unconstitutionally can lead to other serious consequences — such as a member of the National Assembly moving a motion to impeach the President “on the ground of a gross violation of a provision of this Constitution”. It might also make a person — or the state — liable to pay compensation to someone injured, particularly by a violation of the Bill of Rights. The Constitution makes it clear that awarding compensation is possible.

If a court decides that something — a law, an appointment, and an action — is unconstitutional, they are — on the face of it — saying it is a legal nothing. Sometimes that is reasonably straightforward. Eight sections of the Security Laws (Amendment) Act, 2014, were declared unconstitutional early in 2015. The new rules had not been applied, so no complications were caused by ruling that they had no legal effect.

SUSPENDING RULING ON UNCONSTITUTIONALITY

But sometimes declaring unconstitutional a law that has been used for some time might cause problems — what about things that had already been done innocently relying on that law? A fascinating Canadian example, the Supreme Court declared that all laws of the Province of Manitoba were invalid because they were only in English (not also French). The Court suspended the order for two years to allow the province to fix the problem, and avoid everything done under the authority of statutes for many years being a legal nullity.

In December 2016, the Kenyan High Court declared regulations made by the Ministry of Lands invalid for lack of consultation with the National Land Commission and lack of public participation (both constitutional requirements). However, the court suspended the impact of the decision for one year to enable the proper procedure to be used. It seems that the Ministry has not managed to put things right in that year.

Also in December 2016, the same judge held that “the Cabinet as currently constituted has not met the criteria established under Article 27(8) of the Constitution”— because it had more than two-thirds male members. However, he suspended the decision until after the 2017 election. This ruling will be coming back to haunt the President and the National Assembly fairly soon.

WHAT SORTS OF THINGS ARE DECLARED UNCONSTITUTIONAL AND WHY?

Many of the cases that say “this is unconstitutional” are about laws.

It may be that the body making law had no power to do so. County laws have been held outside their powers under the Constitution, particularly when they try to impose a tax beyond land and entertainment taxes that are assigned to counties.

County laws have also been declared unconstitutional because there was no public participation in their making: this happened twice to Kiambu’s Finance Act.

National laws have more often been ruled unconstitutional because they limited human rights (such as the SLAA sections that violated freedom of expression, the rights of arrested persons and of fair trial).

Failing to observe other parts of the Constitution has also led to laws being held unconstitutional. One provision in the SLAA contradicted the Constitution on the powers of the National Police Service Commission. An attempt to change the law about appointing the Chief Justice (to give the President some personal say in the matter) failed because that is not what the Constitution provides.

Many actions, rather than laws, have been held unconstitutional. These have included appointments, dismissals, assigning a judge from another court to hear a case, revoking licences, evictions, preventing use of religious dress, delaying in bringing someone arrested before a court, and freezing an NGO’s bank account.

WHAT DIFFERENCE DOES IT MAKE?

The decision in a case may benefit the individual: A job restored, compensation ordered, a livelihood protected or a criminal conviction reversed. If the court order is ignored, the benefits may not be experienced. And there have been too many examples of this.

Even if the specific order is obeyed, the case ought to be guidance to later officers and bodies with similar responsibilities. But do they actually know what courts have said about their responsibilities? Do the police know what behaviour courts have said is wrong, for example? If they do know, do they care? Any more than NGO Co-ordination Board executive director Fazul Mahamed seemed to care whether he had power to summon NGOs or to freeze their bank accounts.

A very large number of legal provisions have been declared unconstitutional. We don’t know how many. In South Africa, a decision that a law is unconstitutional is not final until it is approved by the Constitutional Court. We have given this quite awesome responsibility to the High Court, and some of the cases have been decided by just one judge. The parties to the case must respect that judge’s decision, unless they appeal successfully. But the decisions of single High Court judges are traditionally not binding even on other High Court judges. Perhaps worse, lawyers, and judges, do not necessarily even know that a law has been held unconstitutional.

THE WAY TO GO

The government is usually a party when the constitutionality of a law is being decided. If the law is declared unconstitutional and they disagree, they must appeal. If they don’t appeal, they ought to ensure everyone who applies that law knows which aspect has been declared unconstitutional. We need a mechanism for informing lawyers. And judges, too, should be informed. And if a law has been declared unconstitutional, and no-one is appealing, Parliament should be invited to change the law, either to make it achieve its purpose without being unconstitutional, or to remove the unconstitutional provision.

By Jill Cottrell Ghai