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Published online by Cambridge University Press: 28 July 2009
On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”
1 Mapp v. Ohio, 367 U.S. 643 (1961).Google Scholar
2 (1989) 17 Nairobi Law Monthly 38.Google Scholar
3 (1989)15 Nairobi Law Monthly 33.Google Scholar
4 Section 60, Constitution of Kenya states: (1) There shall be a High Court, which shall be a superior court of record and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.
5 See, Olive Carey Juandoo v. Attorney General [1971] 3 W.L.R. 13.Google Scholar
6 Stanley Munga Githunguri v. Republic (1987), 3 Nairobi Law Monthly 7.Google Scholar
7 S. 3 Constitution of Kenya.
8 See, Raila Odinga v. Attorney General (1988) 10 Nairobi Law Monthly 31.Google Scholar
9 Ironically the High Court usurped the legislature while abdicating from its constitutionally prescribed judicial power. The High Court in effect altered the Constitution when it declared s. 84 “inoperative”. The High Court overstepped its interpretive powers and effectively amended the Constitution: “Parliament could amend the Constitution but not so as to alter or affect a basic feature, for then it would not really be amending but substituting a new constitution which it has no power to do.” Bhagwati, P. N., “Human Rights as Evolved by the Jurisprudence of the Supreme Court of India” [1987] Commonwealth Law Bulletin 236Google Scholar; See also, Kesavananda v. State of Karali, A.I.R. 1973 S.C. 1461Google Scholar. If former Chief Justice Bhagwati correctly characterized the limits of legislative amendment powers, then it becomes clearer that the High Court of Kenya cannot alter the Constitution where even the legislature could not so act.
10 In Olive Carey Juandoo v. Attorney General of Guyana op. cit., the Guyana Supreme Court considered issues and constitutional provisions that are analogous to the present controversy. This case was adopted without qualification by the High Court of Kenya in Raila Odinga v. Attorney General op. cit.
11 The Lancaster House Conference assembled in 1960 and again in 1962 to draft the Constitution that founded the newly independent Kenya. The draftsmen devised a constitutional order based on their keen understanding that democratic government demanded separation of powers and thus established strong safeguards for the preservation of the fundamental rights of the individual citizen. Those who participated in the Lancaster House Conference were keenly aware of the dangers of unfettered power in the government for the long fight for uhuru was still fresh in the new nation's experience.
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13 Report of the Kenya Constitutional Conference, 1960.
14 Report of the Kenya Constitutional Conference, 1962.
15 Ibid.
16 I Cranch 137; 2 L.Ed. 60 (1803).
17 Okunda v. Republic [1980] E.A. 453Google Scholar; see generally, Mugai, G., “The Judiciary in Kenya and the Search for a Philosophy of Law” (unpublished work presented to the International Commission of Jurist (Kenya Section) 15–1606, 1990).Google Scholar
18 Chapters II–IV Constitution of Kenya.
19 See, Ghai, Y. P., “Judicial Protection Against the Executive,” National Reports, New York, 1969.Google Scholar
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22 Constitution of Kenya (Amendment) Act, ss. 2 and 3. It is worth noting that nothing in the Kenya Gazette Supplement, 19 08, 1988 indicates the effect of the constitutional amendment.Google Scholar
23 “The Proposed Constitutional Amendment Negates the Lancaster House Constitutional Settlement and Violates the Basic Principles of the Rule of Law and the Fundamental Right to Liberty.” at 5, (unpublished)
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25 Those eligible for appointment to the Tribunal are individuals who held office as a judge of the High Court or Court of Appeal, those qualified to hold such office and senior counsel (a title conferred by the President, s. 17 Advocates Act (Cap. 16), amended 1989).
26 Rule of Law in a Free Society, International Commission of Jurists, New Delhi, 1959, 279–80.Google Scholar
27 Above, n. 19, at 627.
28 High Court Civil Case No. 1021 of 1964 (unreported).
29 High Court Civil Case No. 1159 of 1966 (unreported).
30 [1968] E.A. 406.Google Scholar
31 [1978] K.L.R 38.Google Scholar
32 [1979] K.L.R 154.Google Scholar
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38 Above at 159.
39 Above at 23.
40 Nairobi Criminal Case No. 4565 of 1984 (unreported).
41 Above at 21.
42 Above at 24.
43 Above at 38.
44 Ibid. at 38.
45 Above at 19.
46 Re Miester (1914) 31 T.L.R. 28Google Scholar; See also, Benoist Plantation v. Adien Felix, (1956) 21 E.A.C.A. 104.Google Scholar
47 In Raila Odinga the court dismissed the s. 77 claim on factual grounds. The evidence offered by the state regarding Mr. Odinga's previous out of court statement that he had understood the charges and that they were sufficiently detailed convinced the court that s. 77 had not been violated. On the claim that Mr. Odinga had been tortured in violation of s. 74, the Detainee's Review Tribunal was offered evidence in denial that any of the allegations were true. The court found the evidence convincing and dismissed with costs.
48 Above at 27–28.
49 If it is accurate to presume s. 60 is also “inoperative” from the fact that Dugdale, J., dismissed Maina Mbacha for lack of jurisdiction then the significance of the case has been understated. The High Court of Kenya has held unlimited original jurisdiction since 1897. See, East Africa Colony Order-in-Council 1897; East Africa Colony Order-in-Council 1902 and s. 60 Constitution of Kenya (1963).
50 Above at 34.
51 Cf, Anarita Karimi Njeru v. R. (above) where Miller, C.J., ruled the grant of s. 84(1) to be an “unqualified” grant of jurisdiction.
52 Above at 34.
53 297 U.S. 1 (1936) In Butler the United States Supreme Court considered the court's role in evaluating whether a certain act of Congress aligned with the Constitution. The Court emphasized that its role was “to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former … [The Court's] delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and having done that, its duty ends.” The Court was not in a position to pass judgment on the wisdom of the legislation. Butler is not about jurisdiction, rather it is a case that provided a check on judicial activism in American jurisprudence. It is absurd for the Kenya High Court to assert that enforcement of the Constitution is impermissible judicial activism.
54 Above at 34.
55 Republic v. Joseph Maina Mbacha, Resident Magistrate's Court in Murang'a, Criminal Case No. 1232 of 1989Google Scholar; Republic v. Wilfred Authur Mwangi, Senior Resident Magistrate's Court, Criminal Case No. 1289 of 1989Google Scholar; Republic v. Joseph Mwangi Njunga, Resident Magistrates Court of Murang'a, Criminal Case No. 1290 of 1989.Google Scholar
56 This includes, “unlawful fighting by one or more persons or a display of force by one or more persons without actual violence.”
57 Above at 2.
58 See, Miller v. Miller, (1988)Google Scholar 10 Nairobi Law Monthly 53 where the Court of Appeal said: “As is made clear by Section 60(1) of the Constitution of Kenya, the High Court has unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred by the Constitution or other law … The unlimited and original jurisdiction of the High Court can be ousted only by an express provision in the Constitution.”
59 Above at 38.
60 One author personally attended the review in the High Court at Nairobi which was not held in open court but in chambers.
61 Personally witnessed but not recorded by the court or reported in the newspapers. During the course of the review Dugdale, J., repeatedly showed his disdain for the applicant's counsel saying to Mr. Kamau Kuria: “The way you have chosen to bring this case is a waste of time”; “This is nonsense Mr. Kuria”; “Mr. Kuria you are a senior advocate so you should understand the rules. They are very simple Mr. Kuria, I need not show you the book”; “This is nonsense Mr. Kuria, you want me to hear the application for a bench of five judges and then disqualify myself after hearing the application. Then this is a waste of time.” Mr. Kamau Kuria asked Dugdale, J., to take note that both the Justice and Mr. Ole Keiuwa, counsel for the Attorney General on Civil Matters, were interrupting and not allowing counsel for the applicants to be heard. The court took note. The state made a submission that he took Mr. Kamua Kuria's comment as an affront. Dugdale, J., said, “Yes, Mr. Kuria I am not sure what the applicants may think of you repeatedly saying that you are not being allowed to be heard. They might get the idea there is some kind of oppression going on.”
62 [1960] E.A.C.A. 62.Google Scholar
63 Aboveat 64.
64 [1958] E.A.C.A. 45 at 50.Google Scholar
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66 See n. 46.
67 See n. 46.
68 Above at 19.
69 Above at 22.
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70 See Muigai above at 11.
71 H, Okoth-Ogendo, “The Politics of Constitutional Change, 1963–69”, 71 African Affairs 9.Google Scholar
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73 In 1982, KANU was designated the sole political party in Kenya.
74 Sheilds, T., “L'etat et Moi”, Africa Report (11–12 1988), 49–51.Google Scholar
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76 See Ghai, Y. P., “The Rule of Law in Africa—Reflections on the Limits of Constitutionalism” Paper presented at the International Commission of Jurists (Kenya Section) 14–1506, 1990 (unpublished).Google Scholar
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80 G. K. Kuria, and Kiriatu Murungi. “What is Happening in Kenya: Gross Violations of Human Rights and Persecution of Advocates or Political Pluralism in Kenya.” Memorandum submitted to the International Bar Association 16 July, 1990, (unpublished) at 3.
81 High Court Misc. Appl. No. 427 of 1990.
82 See Daily Nation, No. 9191 29 June, 1990.
83 Unreported 1991. “In Kenya the Lawyers Lead the Call for Freedom,” New York Times, 03 30, 1991.Google Scholar
84 See n. 82 above.
85 Both unreported (1990).
86 Kenya Gazette Notice No. 5319: See Imanyara, G., “Why the Screening of Kenyan Somalis Cannot be Constitutionally Supported” (1989) 19 Nairobi Law Monthly 2.Google Scholar
87 (1990) 27 Nairobi Law Monthly 47.Google Scholar
88 S. 348 states “No person shall be allowed to appeal in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except to the extent or legality of the sentence.”
89 Above at 47. It is submitted that the highlighted language used by Porter and Mweru, JJ. is a subtle reference to the error in the Maina Mbacha case.
90 Above at 48.
91 (1990) 27 Nairobi Law Monthly, 40.Google Scholar
92 Above at 44.
93 Ibid. at 44.
94 Ibid. at 45.
95 Ibid. at 45.
96 See Kuria, G. K., “Kenya's Constitutional Crisis and the Courts: Comments on the Decision in Kenneth Njindo Matiba v. AG” unpublished at 80.Google Scholar
97 (1991) 30 Nairobi Law Monthly, 1.Google Scholar
98 See Mburu, C., “I was kidnapped, Claims Koigi.” (1991) 29 Nairobi Law Monthly 11.Google Scholar
99 Ibid. at 2.
100 Ibid. at 1.
101 Nairobi Misc. Criminal Application No. 101 of 1982 (unreported).
102 Ibid. at 1.
103 Ibid. at 1.
104 Ibid. at 2.
105 Ibid. at 2.
106 Ibid. at 2.
107 Ibid. at 2.
108 Bhagwati, P. N., Inaugural Address, in the proceedings of Colloquium on the Application of International Human Rights, 1988.Google Scholar
