Kenya: Time for courts to develop judicial review as “constitutional supervision of power” - judge

22 February 2019 · Carmel Rickard

IN an ongoing battle over land compensation payment in Kenya, the high court has awarded both a win and a lose to the two sides in the bitter dispute. This particular part of the fight has seen the senate determined to show its authority by summonsing the companies that owned the contested land to appear before one of its committees and answer questions. The companies, on the other hand, claim a witch-hunt and say there is an attempt to coerce and blackmail them. Though both the parties may feel dissatisfied with the outcome, the interesting decision by Judge John Mativo shows there was in fact a clear victor: the rule of law has won.

WHEN a court begins its decision with a hymn to the values of the constitution and the rule of law, I would expect to find the judge is about to do something unusual or significant.

Did this happen in the recently-decided case of the Speaker of the senate against two limited liability companies? You be the judge.

Before he even began to explain the facts of the case, though, Judge Mativo, who presided in the matter, spent three paragraphs on the significance of the law, justice and the rule of law in a modern, changing society.

He was dealing with an application by two companies to review a letter asking them to appear before a senate committee.

They wanted the court to set aside the summons and to stop the committee from issuing the companies with any future call to do so.

Behind this dispute lies a sizeable piece of land owned by the companies since 1981. According to the companies’ statement of facts, the government had “compulsorily acquired” roughly half of the land but, following litigation, the court decided that the property did indeed belong to the parties and ordered the government to pay Ksh 4b as compensation. After negotiation, the companies agreed on a Ksh 2.5b compromise.

At a later stage the government said it was interested in acquiring further land for two schools that had already been constructed on land owned by the companies but for which they had never been compensated. The government’s offer of Ksh 3,2b was accepted by the companies, about half of which has already been paid, with the balance still due.

The national assembly departmental committee on lands later called the company directors and other government officials to explain the transactions and the committee’s report on that deal is now being prepared.

But the senate’s public accounts committee also wanted to consider the matter.

The company directors say they believe some senate members are part of a scheme to “blackmail and extort money” from them, and they want the court to declare the “invitation” to appear before the senate committee “unreasonable, unprocedural and illegal”.

The senate’s response in court was that enormous sums of public money were involved in payments made and still due to the companies and it was “prudent” for the senate to verify the “propriety” of the transaction.

No “malice” was involved in the investigation, said the senate, and its committee had also invited others to give information about the transactions, including the head of the national land commission and several cabinet secretaries.

In the judge’s view, lawyers for the companies had tried to challenge the power of the senate to conduct investigations in the first place, while the basis of argument by the senate’s legal team was to question whether this was a proper case for judicial review.

In response, Judge Mativo broke into one of his periodic discussions on recent changes to the legal landscape.

He said that under the new constitution, the right to access the court was constitutionally guaranteed, and parties could now ask for judicial review of decisions where once that had been denied.

Court decisions should now “boldly recognize the constitution as the basis for judicial review,” he said. Judicial review should be thought of as “constitutional supervision” of public authorities. The time had come for the courts to “fully explore and develop the concept of judicial review in Kenya as a constitutional supervision of power”. Powers previously regulated by the common law were now regulated by the constitution. An applicant only had to show that a contested decision threatened to violate the Bill of Rights or the Constitution, and then, no matter how “noble” and “admirable” the common law principles were, if they were irreconcilable with the constitution, the constitution had to prevail.

The senate’s letter calling the companies to appear before it was just such a document that could be set aside by a court if it was found to have been issued in a way that violated the constitution.

Though the senate and its committee wanted the court to throw out the case on the basis that judicial review of its invitation was not permitted, the court would not do so. This was exactly the kind of case in which the constitution envisaged judicial review, and the court was entitled to set aside the letter if it found that it was issued in an unlawful way, for example by violating the law on fair administrative action.

So far, in other words, the senate had lost the battle for the principle it was trying to establish while the companies had won their fight to have the court consider the validity of the letter.

But then things changed: carrying out the task of judicial review, the judge found that the committee had acted within its powers by summoning the companies. It was “beyond argument” that the senate’s invitation “has a constitutional and statutory underpinning”. There was nothing to show that it was issued in a way that was illegal or beyond its powers, and no abuse of its powers had been shown.

Despite their complaints, the directors of the companies did attend a hearing. They submitted themselves to the process and they were questioned. They could not now change their minds. As to the alleged bias, it amounted to a newspaper comment that underscored the interest of the public in the matter and the role of the committee, rather than showing any “personal prejudice”.

Using its power to review the senate’s decisions, the court found there was no good reason to set aside the invitation and dismissed the application by the two companies.

At a time of serious tension between the government and the judiciary in Kenya Judge Mativo’s decision is particularly important. It firmly pronounces that the court has the power to consider the work of the senate and any other organ of government; but when he does so he comes to the conclusion that its powers were exercised properly. And in making this decision he places the courts in the modern tradition he spells out right at the start of his judgment: “(T)he law has today assumed a dynamic role in the transformation and development of societies. It has become an instrument of social change.”

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Read the full judgment Republic v Speaker of the Senate & another Ex parte Afrison Export Import Limited & another [2018] eKLR

Carmel Rickard

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