Kenyans and other observers are waiting for the outcome of legal action brought to challenge aspects of national elections held earlier this month. Just before the elections, however, there was a most unusual decision whose impact will be felt during election challenges.
The challenge is unusual because it required the constitutional and human rights division of the high court to decide whether, in making certain rules relating to election challenges, the supreme court assumed powers it did not have.
In other words, the high court was not asked to overturn a decision of the supreme court as suggested in some local media headlines. This would obviously have been impossible since courts are bound by decisions of higher judicial bodies. Rather, the high court was considering the constitutional validity of rules formulated and promulgated by the highest court.
The case was brought by Kenyan advocate, Omwanza Ombati, who challenged the lawfulness, and the content, of the new rules, saying the supreme court had not invited, let alone considered, public participation before making the rules. Further, he claimed that the rules violated a number of constitutional rights including freedom of expression and opinion. In addition, the supreme court, in making the rules, usurped the role of parliament.
What did the disputed rules say? Two new ‘sub-rules’ were added to the existing rules, and they deal with hearings of the supreme court once a presidential election petition begins. The first said that ‘litigants, advocates and advocates’ agents’ are not allowed to express their opinion on the merits or demerits of a petition, or predict its outcome ‘in any manner that would prejudice or impede court proceedings, until judgment is delivered.’
According to the second new sub-rule, any breach of the first new sub-rule ‘shall amount to contempt of court’.
Chief Justice Martha Koome, who is also the president of the supreme court, opposed the petition, saying it was her duty, as head of the judiciary to ‘protect the independence and integrity of the judiciary’. She also referred to a previous case before the supreme court in which counsel ‘proceeded to hurl unnecessary diatribe, insults and speculations on a pending judgment’. It was against such behaviour that the new rules were aimed; they were ‘only intended to ensure that the dignity and independence of the court is maintained’.
The first issue for the high court to resolve was whether the new rules were a statutory instrument and thus subject to the Statutory Instruments Act (SIA) or whether they were made in terms of the constitutional powers given to the supreme court.
The judge who heard the matter, Mugure Thande, found that the new rules were not statutory instruments within the meaning of the SIA. And that, as the CJ argued, when the supreme court exercised its constitutional power to make the disputed rules, it was not subject to the provisions of the SIA.
But what did this finding by the court mean for the claim that the rules were unconstitutional because there had not been public participation?
Ombati said public participation was a ‘national value’ and a principle of governance enshrined in the constitution. It was a ‘sacred expression of the sovereignty of the people … and a sacred thread running throughout the constitution.’ There had been a ‘blatant disregard of the law’ when the rules were made without informing the public and giving the public an opportunity to make submissions.
The CJ took the opposite view, saying the rules were not unconstitutional because of a lack of public participation. The supreme court had previously amended its rules in a similar way, without consulting presidential candidates or their legal representatives. Further, since the rules were not statutory instruments, they did not require the normal legislative processes such as mandatory public participation.
Ultimately, however, this was a view that the court rejected.
The judge said that national values and principles were binding on all state organs, and public participation was a ‘constitutional imperative’, as could be seen in a number of earlier court judgments. Regardless of the nature of the disputed rules, and the fact that the power to make them flowed directly from the constitution, ‘the letter and spirit of the constitution must be upheld in the process of enactment.’
‘Any rules made by any entity must be in conformity with the constitution.’
Judge Thande said that in promulgating the new rules, the supreme court had a duty to facilitate meaningful engagement with the public. This engagement should have included access to and dissemination of relevant information, with a reasonable opportunity to the public and all interested parties to know about the planned rules.
It was quite evident from the material before the court that the supreme court had not conducted any public participation before promulgating the rules, contrary to the constitutional requirement that reasonable opportunity must be given to those likely to be affected by the rules to voice their concerns and know that they were properly considered.
The court’s ‘inevitable conclusion’ was that the decision of the supreme court to exclude the ‘participatory rights of the people before promulgation of the impugned rules, is unlawful and unconstitutional.’
What about the claim that the supreme court had usurped the role of parliament in promulgating these rules?
The claim was directly related to the fact that the rules extended the contempt of court provisions in the penal code. The Supreme Court Act already made detailed provision for contempt of court including penal provisions, said Judge Thande, commenting that it was not clear why the new rules were thought to be necessary.
If indeed there was a need to expand contempt of court provisions to include the provisions in the new sub-rules, then the supreme court should have deferred to parliament, which has the constitutional mandate to make new law.
Only parliament had the power to make provisions with the force of law. ‘To this extent, I find that the supreme court went overboard. Such provisions can only be made by parliament or with its approval. More so, because the provision has the effect of taking away rights.’
Stick to its lane
The court then in a sense read a lesson to the supreme court about only exercising the powers given it, not usurping the powers of other constitutional entities and observing the separation of powers doctrine ‘which requires each of the three arms of government to stick to its lane.’
Although the petitioners had also claimed that the new rules infringed specific rights and freedoms contained in the bill of rights, there was no need to examine this question, said the court, since the rules were in any case unconstitutional for lack of public participation and because of the usurpation of the legislative powers of parliament.
The intriguing question now, must whether the CJ will appeal against the finding or whether she will find the reasoning convincing and accept that perhaps the whole issue should have been handled differently.
* 'A matter of justice', Legalbrief, 23 August 2022