Statute vs Statue: when judges become art critics

3 October 2019 · Carmel Rickard

Kenya’s constitution says that the currency of that country ‘shall not’ bear the 'portrait' of any individual. So, when new bank notes were issued earlier this year, depicting the Kenyatta International Convention Centre with Kenya’s first president, Jomo Kenyatta, clearly distinguishable, seated alongside the building, the question arose whether the new notes were constitutional. Two of the presiding judges felt they had to solve the legal conundrum by deciding whether the bank notes bore a ‘portrait’ of Kenyatta - or if it was just a picture of a statue.

Read judgment

The sharp-eyed petitioners in this case were former MP and now legislator in the East African Assembly, Simon Mbugua, with the director of Kenyans for Justice and Development, Okiya Okoiti. They challenged the constitutionality of the new bank notes for their depiction of the man regarded as the founder of modern Kenya, Jomo Kenyatta.

Their opponents in the matter were the Central Bank of Kenya, its governor and the Attorney General.

Judges Kanyi Kimondo, Asenath Ongeri and Anthony Mrima had a number of questions to consider, raised by the applicants. These included whether the public had been adequately consulted in connection with the new notes. But the most taxing question was whether the depiction of Kenyatta by way of a statue of the man, seated, next to the Kenyatta International Convention Centre, was constitutional.

Portrait

The constitution – accepted by a national referendum in Kenya – is clear about the question of what should not be permitted on banknotes: ‘Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya or an aspect of Kenya but shall not bear the portrait of any individual.’

Though the images and symbols on money were to show the rebirth of Kenya and the country’s prosperity, yet there were no symbols of national unity on the new money, claimed the applicants.

The central bank on the other hand, argued that the image of Kenyatta on the notes was an image of a statue rather than being a portrait.

For Judges Kimondo and Ongeri the answer could be found by looking in a dictionary, preferably one that dealt with art and definitions of artistic terms. In such dictionaries they found the meaning of ‘portrait’ and compared that definition with ‘sculpture’ and ‘portrait sculpture’.

'Free standing'

No doubt about it, they concluded, a ‘portrait-sculpture’ could not be a portrait unless it was ‘frontal and from the bust or head upwards’. A sculpture on the other hand was something ‘free standing’ and made from durable materials.

The court had visited the statue site and had seen for itself that the statue on the new currency was ‘not frontal but a full length image from the head of the first President to his feet’.

Neither of the applicants had been able to show that the ‘impugned statue’ amounted to either a portrait or even a sculpture-portrait. The picture of the statue on the currency was not frontal; ‘it is a sideway shot. It is a full-length representation of the first President from the head to his feet.’

On the question of public participation, the central bank said the public had been engaged, but in the interests of national security and the security of the planned new notes, it was important that the consultation process not take long.

Costs

Though the central bank asked for costs against the petitioners, the court said the matter raised ‘constitutional issues in the public interest’ and that each party should bear its own legal costs.

There was, however, a third presiding officer in the case, Judge Mrima. And he took a rather different view on the central artistic and constitutional question.

In a dissenting decision he considered what exactly the constitution forbade, and whether what appeared on the bank notes was an impermissible image or an apparently constitutionally acceptable ‘statue’.

Debunk

In his view, any images that appeared on Kenyan banknotes should ‘not be of recognisable or identifiable persons’. This was because the relevant section of the constitution had as its purpose to mark the ‘rebirth’ of the nation and move away from ‘associating currencies with any person, persons, community, communities or even political leadership’. This in turn was to debunk the idea that political leadership was associated with any particular group.

During the court’s visit to the statue, the judges had seen that it was dedicated to Kenyatta and that the plaque was unveiled by the then vice-president of Kenya: no doubt then that the statue depicted a particular leader and leadership and commemorated their 10 years in power.

'Legally compliant'

In Judge Mrima’s view there was no doubt that the ‘impugned statue is an image’. He had looked at the new notes and one of the images that clearly stood out was the statute. ‘The image is easily recognisable as that of the Founding Father of our nation. It is also enlarged and is not proportional to the tower. The statue commemorated 10 years of political leadership.’ He would have found that the ‘image of the impugned statue on the new currency’ contravened the constitution and, since the bank notes were already in circulation, he would have suspended a declaration of invalidity of the notes for a maximum of one year to allow a change over to ‘legally compliant currency notes’.

However, as he was in the minority on the matter, the final orders would be as proposed in the majority decision.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.