REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA PETITION NO. 669 OF 2009

Transcription

1 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA PETITION NO. 669 OF 2009 IN THE MATTER OF: SECTION 84(1) OF THE CONSTITIUTION OF THE REPUBLIC OF KENYA IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 70, 72, 75 & 78 OF THE CONSTITUION OF KENYA IN THEMATTER OF: THE CONSTITUTIONAL REVIEW AMENDMENT ACT, 2008 AND IN THEMATTER OF: THE HARMONIZED DRAFT CONSTITUTION OF KENYA BETWEEN 1. BISHOP JOSEPH KIMANI 2. REV. MUSYOKA NZUI 3. AGNES MBINYA (also known as MUMU NGUMBI) (Suing as officials of MOMBASA PASTORS FELLOWSHIP) PETITIONERS AND THE HON. ATTORNEY GENERAL.. 1 ST RESPONDENT THE COMMITTEE OF EXPERTS.2 ND RESPONDENT THE CHAIRMAN, PARLIAMENTARY SELECT COMMITTEE..3 RD RESPONDENT R U L I N G

2 The Petitioners lodged a Petition in the High Court at Mombasa on 18 th December, 2009 under the provisions of Section 84 (1) of the Constitution of the Republic of Kenya in which they set out a list of alleged contraventions of their fundamental rights and freedoms which are enshrined and protected under sections 70, 72, 75 and 78 of the Constitution of Kenya. The Petitioners are Bishop Joseph Kimani, Rev. Musyoka Nzui and Agnes Mbinya Ngumbi (also known as Mumu Ngumbi) as officials of Mombasa Pastors Fellowship. The Petitioners describe themselves as follows:- - Citizens of Kenya whose rights are guaranteed by the Constitution and the statutes. - Born again Christians who profess and practice the teachings of the Holy Bible in matters touching on Faith, Morality, Family, and True Worship, among others. - Spiritual leaders of numerous churches spread all over the Coast Province, parts of Kenya and other parts of the World. - Also are registered association with Registered officers. - Have been involved in the Constitution making process like other citizens in Kenya. In the Petition, the Respondents named are the Attorney General of the Republic of Kenya, the Committee of Experts and the Chairman, Parliamentary Select Committee. The Petitioners have set out a litany of grievances about the Constitution review process which has been going on and presided over so far by the Committee of Experts under the provisions of the Constitutional Review Amendment Act, The Petitioners complain that the Committee of Experts (hereinafter referred to as the CoE) failed to take on board the views of the Petitioners which they had duly presented. They stated inter alia, that on 17 th November 2009 the CoE published the Harmonized Draft Constitution and released the same to the public. That in this Harmonized Draft Constitution the CoE did not show/isolate what is contentious and what is agreed issues. That further the same issues the

3 Petitioners have been raising have not been addressed. The Petitioners set out the following breaches of their Constitutional rights:- (i) Failure by Parliament to define what amounts to a contentious issue. This has left the definition to an interested party, the CoE, who have given a narrow, subjective and biased definition. (ii) The CoE while vested with sufficient power to produce balanced and well consultative documents fell flat by failing to take on board the views of your Petitioners. That the Petitioners risk that their views are not able to be placed before Parliament and/or referendum. (iii) The Review Act provides a wrong and unconstitutional method of making of a Constitution by citizens, who are the only legitimate organ to make a Constitution as document to govern them. (iv) The Review Act made wrong presumptions that the CoE was able to identify objectively what amounts to contentious issues. (v) The Review Act sets a time which is oppressive unachievable and unconstitutional for publication, distribution, public debate and writing of recommendations to the CoE in a country plagued with a high degree of illiteracy and poor infrastructure. (vi) The Harmonized Draft Constitution published on 17 th November 2009 is ultra vires section 30 (2) of the Review Act in that the Harmonized Draft was to include as part of its contents:- (a) Issues that are not contentious as agreed and closed (b) Issues that are contentious identified as outstanding. This they never did. (vii) If the process is flawed, oppressive and discriminative it has the ability to deny the Petitioners and their followers the inherent power to participate in the Constitution making process. Equally, this will threaten to take away even those rights protected by the current Constitution. The Petitioners state in the Petition that they had to come to court in good faith for the following reasons:-

4 (a) They need Kenyans to have more time to read and understand the Harmonized Draft. (b) They need a clear definition of what amounts to a contentious issue which Parliament never defined. That this benefits every Kenyan. (c) They need more matters to go to the Parliamentary Select Committee and Parliament to avoid feelings that their views were never considered. (d) They need Kenyans to be fully involved in the Constitution making. This includes those who are illiterate and cannot read the harmonized draft on their own. (e) They need the Constitutional rights of every citizen and the inherent rights of citizens to make a Constitution upheld. (f) They need this to be finalized expeditiously and within the law. The Petitioners seek the following orders:- (a) That this Honourable court be pleased to declare Sections 2,23, 24, 30, 31, 32 and 33 of the Constitution of Kenya Review 2008 Act (Act No. 9 of 2008) Unconstitutional, null and void) ALTERNATIVELY: (b) This court do give a definition of what amounts to: Contentious Issues and whether the following issues as raised by the Petitioners surrounding; i) Sanctity of life ii) The family and the right to found a family between a biological man and a biological woman. iii) Separation of state and religion. iv) The Kadhi s court v) Provisions regarding citizenship Amount to contentious issue which should be presented before the Parliamentary Select Committee in terms of Section 32 (1) of the Review Act.

5 (c) A declaration that the Constitutional rights of the Petitioners have been breached. (d) An order compelling the Committee of Experts to include the issues set out in (b) above as contentious issues in terms of section 32 (c), (b). (e) A declaration that the Constitution gives every person in Kenya an equal right to review the Constitution which rights embodies the right to participate in the writing of the Constitution through a National Referendum. (f) That Sections 2, 23, 24, 30, 31, 32 and 33 are inconsistent with the citizen s Constitutional right to effectively participate in the process of writing and ratifying the constitution. (g) A declaration that Article 21 of the Universal Declaration of Human Rights 1948 which is embodied and implied in Section 82 of the Constitution bars the CoE from identifying contentious issues in a discriminatory manner. (h) A declaration that the Constitutional Review process as envisaged under the Review Act does not comply with the fundamental tenets and principles of democracy as enshrined in the Constitution. (i) Costs of the Petition. On the same day, 18 th December 2009, the Petitioners filed an application under certificate of urgency for Interim Orders on the following terms: that pending the hearing and determination of this summons inter partes, this court be pleased to issue conservatory orders in the following terms:- (a) Suspend the operations of Section 30, 31, 32, 33 and 34 of the Constitution of Kenya Review Act (b) Direct that this application and the Petition be served, heard and disposed within 21 days.

6 3. That Section 30,31, 32,33 and 34 of the Constitution of Kenya Review Act 2008 be suspended pending the hearing and determination of the Petition. 4. That the costs of the application be provided for. The Petitioners appeared before the Duty Judge, Hon. Lady Justice Odero on the same day who certified the application as urgent and directed it to be served on the Respondents. The Application was then fixed for directions on On the 23 rd December 2009, the matter was placed before me for directions. The Petitioners Counsel Mr. Gikandi and Mr. Joseph Munyithya told the court that they had served the 1 st Respondent the Attorney General and the 2 nd Respondent, the CoE. They produced affidavits of service. However they had not been able to serve the 3 rd Respondent, the Chairman of the Parliamentary Select commit who was said to be on recess. Upon careful consideration, the court ordered that the Petitioners do advertise the filing and existence of the petition and the application in any of two of the main English Daily Newspapers with the widest circulation in Kenya within 7 days. The application was fixed for hearing on The Petitioners duly complied with the said orders. On , the Petitioners appeared through their counsel Mr. Gikandi, while the Attorney General delegated Mr. Njoroge Ag. Senior Principal Litigation Counsel to represent him. The 2 nd and 3 rd Respondents did not appear. Upon hearing the counsel, the application was adjourned to the next day to enable Mr. Njoroge to effectively prepare to prosecute a Ntoice of Preliminary Objection had had filed and which by necessity and law had to be heard first as it raised jurisdictional issues. The Attorney General raised 6 grounds in his Notice of Preliminary Objection dated On the court directed that the only point of law which raised a pure point of law as ground 1 and it was the only one to be argued. Ground No. 1 stated:-

7 That this court had no jurisdiction to determine the issues in dispute in these proceedings as they arise from the process undertaken under the Constitution of Kenya Review Act, Only an Interim Independent Constitutional Dispute Resolution Court can have Jurisdiction to deal with all and any matters arising from the Constitutional Review Process under Section 60 A of the Kenya Constitution. Both Counsel proceeded to present elaborate and well reasoned submissions of which I am grateful to them as they assisted the court immensely in understanding the issues at hand. What became common ground is that the petition and the application in particular raised Constitutional issues which were of great importance and public interest and had potential ramifications that could affect the entire Nation and the people of Kenya who are undergoing Constitutional review process with a review of crafting and enacting a new Constitution for the country which has been a craving and passionate desire and aspiration of the people for almost two decades. In view of the strict times lines set out in Constitution of Kenya Review Act, 2008 it was also agreed that time was of the essence making the application of greatest urgency. Section 60 A of the Constitution of Kenya which was enacted through a Constitutional Amendment provides as follows:- 60A Establishment of Interim Independent Constitution dispute Resolution court. (1) Notwithstanding Section 60 there shall be an Independent Constitutional Dispute Resolution Court which shall have exclusive original jurisdiction to hear and determine all and only matters arising from the Constitutional review process. (2) The judges of the Court shall be nine judges of whom (a) Three shall be non citizens who are qualified to be appointed judges or have served as judges of the highest court in any jurisdiction within the commonwealth nominated by the Parliamentary Select Committee, and

8 (b) Six shall be recruited through a competitive process by the Parliamentary Select Committee and upon approval by the National Assembly be appointed by the President in consultation with the Prime Minister. (3) For the avoidance of doubt, the court is not a division of the High Court. (4).. (5). (6) (7) (8) In the exercise of its functions under this Constitution the court shall not be subject to the direction or control of any other person or authority. (9). (10).. (11) The court shall stand dissolved twenty four months after the commencement of this section or three months after the promulgative of a new Constitution whichever is the earlier. Mr. Njoroge submitted that a correct interpretation of the said provisions clearly and expressly oust the jurisdiction of High Court from hearing or entertaining any disputes or issues arising from the Constitutional Review process. He argued that while section 60 (1) had previously given this court unlimited and original jurisdiction in Civil and Criminal matters and such other jurisdictions and powers conferred by the Constitution and my other law yet by amendment of the Constitution the jurisdictions of the High Court were now subject to Section 60 A. Section 60 provides as follows:- 60 Establishment of High Court (1) There shall be High Court which shall be a superior court of record, and which shall

9 subject to Section 60 A have unlimited jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution and any other law. Mr. Njoroge added that the intention of Parliament was clear that all disputes arising from the Constitutional review process was to be dealt with by another court or body. It was a special court and not an arm or division on the High court. That High Court and the Interim Independent Constitutional Dispute Resolutions Court were separate and distinct bodies both regulated by the Constitution for their different purposes. He said that the High Court will be usurping the functions of the said court if it dealt with this petition in any manner. That the Constitution is the supreme law of the land and must not be contradicted by any other law or application. Section 60 and 60 A must be followed to the letter. Mr. Njoroge saw that strictly the matters raised in the petition were not matters regarding alleged violations of fundamental rights and individual freedoms but were matters touching on and involving the Constitutional review process. He urged the court to apply the law as it is and give the matter a positivist interpretation. Mr. Gikandi for the Petitioner on the other hand urged the court to apply a Realistic Approach in interpreting the aforesaid provisions. He said that the cardinal rule of interpretations of legal/provisions was that which would avoid or lead to an absurd or illogical result. This must be avoided. Mr. Gikandi submitted that the de facto position on the ground is that while the section 60A exists it has never been operationalized by the appointing authorities. That the said court has not been constituted as envisaged by Section 60A and therefore does not exist. That to refuse to hear the Petitioners would be unjust and an anti-climax considering the history and background leading to the amendments to the Constitution i.e. the violence and events that erupted in Kenya after the December 2007 elections.

10 I have considered the Preliminary point of law and the submissions Counsel made on it. It is my considered view that the language used in Section 60 A of the Constitution is simple and certain. The objectives of Parliament are clear and unambiguous. I will give the words in the said provisions their natural and ordinary meaning. Section 60A read with Section 60 of the Constitution out rightly ousts the jurisdiction of the High Court to hear and determine all and any matters arising from the Constitutional review process. The Constitutional review process is regulated under the Constitution of Kenya Review Act, The words and language used in Sections 60 and 60 A speak out for themselves. All disputes arising from the Constitutional review process are to be referred to the Interim Independent Constitutional Dispute Resolution Court which is a special court with absolute jurisdiction on such disputes but for a limited period as set out in Section 60A. Section 60 itself which confers the High Court with its unlimited original jurisdiction in virtually all matters as conferred by the constitution and other laws has for the first time after amendment (Act No. 10 of 2008 S.6) provided for the curtailment of the jurisdiction of the High Court within the Constitution itself. From a correct interpretation face Section 60 and 60A and the subsequent provisions of the Constitution of Kenya Review Act, 2008, It is certain that the intention of the legislature was to totally oust the jurisdiction of the High court from dealing with the Constitutional review process. Section 60 A went even further to state that the said court was not a division of the High court to demonstrate the object of keeping the High court from dealing with these matters. Should this court therefore by only looking at the Constitution and interpretation of the Section 60 A decline to hear the present application and petition on the ground that it has no jurisdiction? Ordinarily the High Court could probably be required to down its pen in such a petition vis-à-vis Section 60 and 60A of the Constitution.

11 However, this court is under an obligation to inquire into this question a little bit further due to the existence of unique if not peculiar and exceptional circumstances on the ground. The court has taken judicial notice and there is no dispute about this fact that the Interim Independent Constitutional Dispute Resolution Court has yet to be constituted or empanelled as required by Section 60 A (2). Having keenly followed the Constitutional review process I am aware that the Parliamentary Select Committee presented to the National Assembly the names of the nine judges to be approved for recommendation for appointment by the President in consultation with the Prime Minister. The House duly approved names of 9 proposed nominees and the speaker of the National assembly issued a certificate to confirm approval by the House of the candidates. The said certificate was presented to the Attorney General and the Ministry of Justice and Constitutional Affairs to forward to the President and the Prime Minister for approval. It is for sure that to date that President has not appointed the judges upon consultation with the Prime Minister. As a result the said court cannot be operationalized and is not functional. The said court does not exist as this Ruling is being made. It did not exist when the Petitioners filed the Petition and as we speak now the court is a legislative figment embedded in our Constitution. The section commenced operation at the end of 2008 and the clock has been ticking away from then. The court to resolve disputes under the Constitution of Kenya Review Act, has not been established despite one half of its maximum life (24 months) span is over! This court as the ultimate custodian of the Constitution of Kenya as it must ask itself whether the Petitioners rights to articulate their rights and ventilate their grievances with regard to the Constitutional review process are totally lost due to this legal vacuum. A vacuum resulting not from the Constitution itself but from executive and political inaction and procrastination by the appointing authorities. The Parliamentary Select committee and House and the Speaker have discharged their duty within a reasonable time taking into account the nature of a

12 competitive process. A certificate has been issued by the Speaker but the appointing authorities do nothing and continue to do nothing. This in the view of this court is abdication of Constitutional duties/obligation conferred by the Constitution on the appointing authorities. Should the Petitioners be denied access to the courts and justice due to this unfortunate situation? I do not think so. In the absence of a duly constituted court, the Interim Independence Constitutional Dispute Resolution Court, it means that section 60A of the Constitution is a dead letter no, to the contrary it is an unborn child unfortunately, whose gestation period is uncertain and unknown. In view of the situation now, it is likely to be still-born upon the expiry of the operation of Section 60A of the Constitution i.e. 24 months. When I adjourned and reserved the delivery of this Ruling, I had the fortune and benefit of obtaining a copy of Ruling delivered on 2 nd October 2009 by my sisters and brother Judges Hon. Lady Justices Wendoh, Hon. Justice Dulu and Hon. Lady Justice Abdi Ali-Aroni in H.C. PETITION NO. 55 OF 2009 (NAIROBI) BISHOP JOSEPH K. METHU & 34 OTHERS V- ATTORNEY GENERAL in which they decided the very point of law : They stated: Without looking at the Constitutionality or otherwise of the ICDRC, it is not disputed that the said court is yet to be established. Neither the Judges have been appointed nor the procedure of operations set out as envisaged under Section 60A of the Constitution, meaning that there is a vacuum until such a time when the said court is established, and such, in our view in the event that issues arise from the ongoing Constitutional Review Process Section 60 of the Constitution empowers the High Court to hear and determine such matters. We are also of the opinion that the vacuum created by Parliament s failure to establish and operationalize the court, cannot in

13 any event deny an aggrieved litigant recourse to law. It appears that at the material time the matter was before the court at Nairobi that Parliament may not have approved the candidates to be appointed as judges. This time the delay and inaction is by the appointing authorities, the President in consultation with the Prime Minister. I would agree with the said decision and rationale. The three judges were persuaded by the decision of Justice Nyamu (as he then was) and Wendoh, J in REPUBLIC V- THE RETURNING OFFICER KAMUKUNJI & ANOTHER EX PARTE NGANGA MBUGUA Misc.Civil Application No. 13 of 2008 in which they stated: It is the responsibility of the court to ensure that the executive action is exercised responsibly and as Parliament intended. The High Court has a responsibility for the maintenance of the rule of law and there cannot be a gap in the application of the rule of law and the court must at all times embrace a willingness to oversee executive action and to refuse to countenance behavior that threatens either basic human rights or the rule of law. I wholly agree with this important elucidation of the law. I certainly would apply the said principles. The Petitioners as a religious organization bringing together many churches who serve their respective congregations and who are citizens of this nation or even others, have come to this court invoking the provisions of Section 84 of the Constitution of Kenya. The alleged contraventions of their fundamental rights and freedoms under Section 70, 72, 75 and 75 of the Constitution of Kenya. The complaints they make appear to also arise from the Constitutional

14 Review process. It is not clear at this stage to me whether the Interim Court envisaged under Section 60 A would have the jurisdiction to hear and determine alleged violations of fundamental rights and freedoms protected and enforceable by Section 84 of the Constitution when the said court is declared not to be a division of the High Court. I will leave it at that on this aspect as it is not an issue directly raised by the Preliminary point of law herein. Be that as it may, in the absence of the Intended Interim Court under Section 60 A, I do hold that this court s unlimited and original jurisdiction under Section 60 of the Constitution or its power to enforce the protective provisions set out in Section 70 to 83 (inclusive) are still alive; intact and unfettered. This is so even if the matters arose during and from the Constitutional review process. The enactment of Section 60 A was not intended to exclude the Petitioner s from accessing the courts in search of justice. To the contrary it is their legitimate expectation that any new provisions in the Constitution at the historic moment where the country is at a Constitutional cross-roads and transition would be to enhance their rights and freedoms and not to take away what they already had in our existing Constitution which was crafted (albeit watered-down later) by our forefathers with the assistance of many including the eminent late Justice Thurgood Marshall of the U.S. To exclude the Petitioners from access to justice due to the barrenness of Section 60 A would be a mockery of the lost and destroyed lives, the internally displaced and many traumatized Kenyans after the December 2007 Elections which lead to deaths destruction, and Civil strife that took the country to the brink of chaos, anarchy and total collapse. The Constitutional Review process was supposed to lead to a total emancipation of Kenyans and confer on them their total inalienable rights as human beings and not to take away that which was already protected by the existing Constitution which has been found to be inadequate. While the Constitution is not perfect and may be inadequate, it is the best and only Constitution we have now. Until we get a better one we must cling to it and protect it with all zeal, breath and blood.

15 As a result on the foundation of Section 60 and Sections 84 of the Constitution, the High court shall and must remain the ultimate defended, and enforcer of the Bill of rights of the people of Kenya as enshrined in Chapter V of the Constitution of Kenya. It is hoped that any new Constitution will lift the nation and its great people to the sky in terms of protection of fundamental rights and individual freedoms. As a result this court must investigate the allegations by the Petitioners that their fundamental rights and freedoms have been or are likely to be violated by the Committee of Experts during the ongoing Constitutional Review Process. I hereby do dismiss the Preliminary Objection and hold that the High Court of Kenya has jurisdiction to hear and determine the application and Petition herein. Costs shall be in the cause. DATED and DELIVERED at MOMBASA on this 5 th day of January M. K. IBRAHIM J U D G E