Firearms verdict a victory for rule of law

22 February 2019 · Carmel Rickard

THE high court in Kenya has declared that the firearms licensing board acted unconstitutionally when it revoked the licence of a controversial politician. The letter informing Senator Johnson Muthama that he could no longer legally possess a firearm was part of a crack-down on opposition figures who protested after the results of last year’s second national elections were confirmed. But the board gave no reasons for its decision and did not allow Muthama an opportunity to put his view on the proposed ban. After an interim order preventing the board from revoking the licence, the high court has now given a full judgment upholding Muthama’s rights to fair administrative action. While some of the tension between the ruling party and the opposition appears to have eased in the meantime, the decision is still important as it shows the courts prepared to hold everyone to constitutional standards of decision-making.

This first appeared in Legalbrief

Read judgment here

When fiery Kenyan opposition politician Johnson Muthama received a notice from the Firearms Licensing Board earlier this year saying that his firearm licence had been revoked, he moved quickly. Just days later he was before the courts, challenging the legality of the action that effectively made it unlawful for him to continue in possession of his rifle, pistol and shotgun, as well as all the ammunition for these weapons.

Judge George Odunga, who heard the preliminary matter early in February, blocked the government from taking the weapons from Muthama, an opposition leader in the senate, by preventing the licence revocation from taking effect pending the outcome of a full hearing on the dispute.

That full hearing took place before Judge Pauline Nyamweya and she has now delivered her decision: in a significant victory for administrative fairness she found that the firearms board had infringed Muthama’s right to proper administration action and she prohibited any future revocation of his licence unless due process was followed.

Muthama was not the only political figure affected. That same month authorities also targeted more than 140 opposition MPs, stripping them of their firearm licences as well as their security personnel. This was widely seen as punitive action against public figures who had participated in the ‘swearing-in ceremony’ of an ‘alternative’ national figure-head after disputed elections late last year, protest action the official government described as ‘treason’.

In the wake of the high-profile ceremony, the government declared that the National Resistance Movement (NRM) of the opposition National Super Alliance was an ‘organised criminal group’, and action against Muthama and others was regarded as part of that strategy to outlaw the NRM. In fact, the legal representatives of the Firearms Licensing Board said as much during argument in court. They ‘implored’ the judge not to decide in favour of Muthama, saying he had ‘professed openly to be a member of the NRM, a proscribed organisation at the time the application was launched’.

The case put up by Muthama was very simple: the firearms board had given no reasons for its decision and the decision was thus not lawful.

He said he had held the licence since 1990 and had never been involved in an incident with firearms, nor had he been convicted of any offence under the Penal Code. Muthama’s argument was that he had to be given an opportunity to be heard on the subject of the cancellation of his licence, yet he was allowed no chance to object to the proposed step.

The actions of the board were thus arbitrary and in breach of the Firearms Act as well as the Constitution, not to mention violating the Fair Administrative Act.

In her decision, Nyamweya said while the letter stated that Muthama ‘had been found … unfit to be entrusted with a firearm anymore’, no basis had been given for this conclusion. The law required the licensing board to be ‘satisfied’ about the existence of circumstances that would make it necessary to cancel someone’s licence, but there was nothing to indicate the basis on which the board had ‘satisfied’ itself of this fact.

This and other factors showed the board had wrongly exercised its powers, and the letter written to Muthama was outside the powers of the Firearms Act and thus illegal.

The board and its officials were required to observe the requirements of natural justice and apply the provisions of the Fair Administrative Act, but they did not put up any evidence showing that they had complied with this requirement before they made the decision to cancel the licence.

‘The Court therefore finds that … there was procedural impropriety and unfairness’ in making the decision.

Just one problem remained: what about the future? Nyamweya said she could not prohibit the board from again revoking Muthama’s licence as the board could not be prohibited from undertaking their statutory powers and duties. But she could stop them from carrying out their duties in a way that contravened the law. She thus made an order prohibiting the licensing board from revoking Muthama’s certificate ‘without following due process’ and complying with the Constitution and the Firearms Act. Finally, to underline the seriousness of the unlawful actions, she awarded costs against the board.

Tensions between Kenya’s political parties appear not to be quite as severe now as they were at the time the board’s disputed letter was issued, but the case still has wider significance: it illustrates the importance of complying with the requirements of fair administrative action – and that the court is willing to act independently, holding everyone to the standards of fair action required by the Constitution.

Carmel Rickard

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