Deriliction of duty and other issues from the IIBRC case ....

Role of the Attorney General

Commenting on the role of the Attorney General in the matter, the judge stated as follows, "[It] is unfortunate that .... the Attorney General, as principal legal adviser to the Government, ought to have made his input in the matter.  Article 156(6) of the Constitution requires the Attorney General to promote, protect and uphold the rule of law and defend the public interest.  Article 156(4)(b) also requires the Attorney General to represent the Government in Court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.   This is a matter of great public interest and it would be in the interest of justice for the Attorney-General through his representatives to take part in these proceedings."

I think failure of the AG to participate in a case of such magnitude amounts to deriliction of duty on the part of the AG.   The AG's position, provided in the Constitution and properly executed, would have assisted the court to come to a fair conclusion of the matter.  The Attorney General does not represent the interests of the parties to the litigation but rather the public interest.  He is supposed to take a broad and long term view of things and it would have been useful for the court to have an independent and disinterested view.

There will be a lot of litigation concerning the Constitution in the coming years and it will be important for office of the Attorney General to keep an eye and deal with Constitutional litigation seriously.  One wrong decision can derail everything!

Participation

The petitioner complained that the IIBRC failed to consult all the relevant parties before it prepared the schedule of constituencies for publication.  The court held that there was sufficient evidence that the IIBRC traversed all constituencies and sought views from all Kenyans.   The judge found as a fact that people were even granted opportunities to make their written representations.  The petitioner in the case did not make any submissions.

This accusation will invariably be made.   One of the national values and principles of governance set out in Article 10(2)(a) is "democracy and participation of the people." I think this means that the people themselves are duty bound, on their own initiative to participate in activities such as presenting submissions to Constitutional Commissions where necessary particularly where the Commission facilitates such participation.  The Commission in this case visited all constituencies.  Where were the MPS?  Did they mobilise their constituents to present their views orally or through memoranda?  Did the MPS as a collective request or hold consultative meetings with the Commission?  Where were all these people now taking out full page adverts to litigate their cases in the wrong forum?

Having had the privilege of working on a Commissions of Inquiry, I must state that Kenyans do not participate in the work of Commissions by way of giving evidence and submissions.  Politicians and arm chair experts will talk loudly in other forums but you will not see them put pen to paper to prepare and submit a memorandum.  Participation is a civic duty.  After all the product is a just as good as the input.

Perhaps the Commission could have done a better job in the civic education department but we must also share in the blame for not engaging in the process.

*The TJRC is now at work.  When the report is released am sure the same complaint will be raised.

Relief and Remedies

The general approach of the court in matters before it is to grant the successful party relief as prayed.  One of the important skills an advocate must have is the ability to craft relief according to the client's needs. In practice I have found that  the relief is granted as an afterthought without consideration of the nature and scope of the remedy.   The court, in the IICRC Case, granted an injunction on terms prayed by the petitioner as follows;

"An injunction restraining the [IIBRC] from publishing in the Kenya Gazette the proposed delimitation of electoral units for the election of the National Assembly, County Assemblies and classifying areas as urban and cities contrary to the Constitution pending the hearing and determination of this petition." (emphasis mine)

The injunction as granted stays in place until the petition is heard and determined.  No terms or conditions are attached to the order.   The petition will not be heard this year and with an expedited hearing, it probably will be completed say in March or April next year.   The implication is that absent, any futher action or directions, the matter  of Constituency boundaries will be held hostage to the court process.  Another interpretation of the order granted is that the IIBRC could publish the Constituencies in the Kenya Gazette provided the terms of the Constitution as identified by the judge were complied with.

A case concerning the Constitution is no ordinary case.  The interests are much wider than those of the individual litigants before the court.  In my view, in constitutional cases, the proper practice to be adopted is for the judge, after giving the decision, to adjourn the matter for a specific hearing on determination of the nature and scope of the remedy.   At this stage, it is possible the parties will address the court on the implications of the proposed order and make a decision that takes into account not only the interests of parties but the larger public interest.

A nugget

I end this post with this quote from the judgment of Ackermann J, writing for the majority of the Constitutional Court of South Africa, in  Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) paras 19 and 69 where he states;

“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights....   Particularly in a country where so few have the means to enforce their legal rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated.  The courts have a particular responsibility in this regard and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal."

What Constitutional Crisis?

Today is 29th November 2010 and the sky has not fallen! Kenya is not in a constitutional crisis.  The crisis, if any, is a politicians crisis stirred by the press.  The failure to nominate commissioners to the important Commission for the Implementation of the Constitution and the Revenue Allocation Commission on a date certain does not of itself invalidate the Constitution.  The Constitution contemplates and requires that the Commissions be constituted and mere delay will not invalidate the provisions of the Constitution. 

The court ruling on Friday, circumscribes the kind of solution that can be taken.   Firstly, there is now an injunction restraining the IIBRC from publishing in the Kenya Gazette the proposed delimitation of electoral units for the election of the National Assembly, County Assemblies and classifying areas as urban and cities contrary to the constitution.   Unless this injunction is discharged or varied in any way, then  any action  taken would amount to contempt of court.  Secondly,  according to the judge, the constitutional provisions would have been satisfied if,  in publishing the names and details of constituencies and wards as required under Article 89(9), it the IIBRC disclosed the population and the square kilometers of each electoral units and any other relevant information pertaining thereto.  This would enable an aggrieved party move the court to determine whether  indeed the provisions of Article 89(9) of the Constitution. 

The mandate of the IIBRC has now expired and in the learned judge's view , the mandate of review of boundaries will be taken over and completed by the yet to be established Independent Electoral and Boundaries Commission.    This position however, ignores the fact that the yet to be established Commission has no jurisdiction to determine the Boundaries for the next election and is constitutionally untenable.

I think two issues are key in crafting a solution to the current impasse.  First,  the Constitution contemplates an "independent" body to delimit electoral boundaries.  The two Principals and Members of the National Assembly cannot take it upon themselves to draw  or otherwise determine the electoral areas.  Yes, they have a role in cooling political temperatures but the exercise must be carried or completed by an independent body.   A parliamentary resolution to accept or reject the Ligale  list serves only a political  not legal purpose.  Second, the right of the citizen to apply to the High Court for review cannot be taken away. Thus it is wrong  for politicians to blame the courts for interference.  It is likely that the result will end up in court anyway.  The citizens right to move the court to enforce Constitutional provisions is enshrined in Article 258.

There are no easy solutions to these issues.  My proposed solution would be that suggested by George Kegoro.  Parliament should extend IIBRC mandate say three months to enable it complete its work.  IIBRC should then publish it proposed list  as a provisional list and invite public comment before before Gazetting a final list which would then be subject of a court contest by any person aggrieved.  

Drawing of political boundaries is always going to be political and any result is not going to satisfy everyone.   Gerrymandering was not invented in Kenya and is a worldwide practise.  Even if the process is political,  I think transparency is key to the process. The establishment of an independent Commission is at least an attempt to de-politicise the process and we owe it to Kenyans to let the process work.

Summary of IIBRC ruling

Justice Musinga

John Kimanthi vs Hon Andrew Ligale and Other Petition No. 72 of 2010  (not yet online) has now been decided by Justice Musinga.  The learned judge identified four main issues for determination and held as follows;

The qualification of the persons appointed to the Commission

The petitioner had argued that some of the Commissioners were not qualified to remain because of the previous engagements in politics or political parties within the preceding five years contrary to Article 88(2) of the Constitution which excludes such persons for consideration for membership of the Independent Electoral and Boundaries Commission yet to be established.  The court dismissed this argument on the basis that section 27(1) of the Sixth Schedule allowed the  IIBRC to continue its mandate. The courts stated that it would be absurd for the Constitution to state that the Commission shall continue to function and at the same time require the Chairman and two other members to cease working as members thereof.

What was the mandate of the IIBRC under the repealed Constitution and the new Constitution

The court was clear that the IIBRC has the power of delimitation and publication of constituencies of boundaries  and wards under Article 89 of the Constitution.  The judge stated the Commission is mandated to do so but it must use the criteria set out in Article 89.  If for any reason it fails undertake its task, then it is the responsibility of its successor, the Independent Electoral and Boundaries Commission to do so.

Did the IIBRC act within its mandate

This issue was the core of the case for the petitioner.  The petitioner argued that the Commission’s act of determining the names of the 290 constituencies  and forwarding them the Government printer for publication was ultra vires its mandate as it was usurping the powers of the yet to be established Independent Electoral and Boundaries Commission.   The respondents on the other hand argued that the Commission acted in accordance with the powers conferred under section 27(1) (b) of the Sixth Schedule and Article 97(1)(a) and by virtue of section 41B(8) of the old Constitution they were not subject to the direction or control of any person or authority.

The court held that held that upon accurate determination of boundaries and constituencies and their publication in the Gazette any person may apply to the High Court for review of the decision made by the IIBRC and that application ought to be filed within 30 days of publication of the decision in the Gazette.  The court stated that on a reading Article 89(9) and Section 27(1)(b), the IIBRC was required to determine the “names and details of the boundaries of the constituencies and wards” and then publish them in the Gazette.  The Commission, the court found, did not determine the details of the boundaries of the 290 Constituencies.  The court stated, “Whenever a constituency is split to create an additional constituency or constituencies, it is necessary that the boundaries of the constituency be determined in sufficient details.  Unless that is done, the requirements under the Constitution are not fulfilled.”   

The court noted that to comply with the letter and spirit of Article 89(5) of the Constitution, the publication of the names and details of the boundaries of constituencies and wards must be done together.  The learned judge stated;

I would state that for the sake of transparency and full compliance with the criteria set out under Article 89(5), the [IIBRC] or any other electoral body, in publishing the names and details of constituencies and wards as required under Article 89(9), it ought to disclose the population and the square kilometers of each electoral units and any other relevant information pertaining thereto.  That way a person can tell whether the desired population quota as denied in Article 89(5) and 12 has been realized or not.   In undertaking an important constitutional task as delimitation of electoral units the highest degree of compliance with the law and transparency is necessary.  No effort should be spared in putting place such mechanisms as would ensure universal suffrage based on the aspiration for fair representation and equality of vote as desired by Kenyans.

Consultations prior to publication of constituencies

The judge found as a matter of fact that the IIBRC traversed all constituencies in Kenya and sought views of all Kenyans and people were even granted opportunities to make their written representations.  The petitioner, the court found did not make any.

Relief

The court concluded by grant an injunction, pending the hearing and determination of the Petition, restraining the IIBRC form publishing in the Kenya Gazette the proposed delimitation of electoral units for the election of the National Assembly, County Assemblies and classifying areas as urban and cities contrary to the constitution.

I shall deal with the implication of the decision in a separate post.

New Civil Procedure Rules

The 2001 amendments to the Civil Procedure Act introduced, inter alia, the Verifying Affidavit and the mandatory averments as to whether there was existence of a suit based on the same subject matter between the a parties.  A lot of judicial ink was spilt and judicial  time spent on arguing and deciding whether the verifying affidavit was a mandatory requires and if so, the consequences, whether the averments as to existence of a  similar suit were mandatory or could be inserted by way of an amendment, whether the averment on the existence of a similar suit could be contained in the verifying affidavit ....... The arguments raised went on and on took some time to settle.  

The purpose of the new Rules is laudable.  Their aim is  to enable the Court enable the court take control of proceedings in order to deal with matters expeditiously.  I suspect that the new Civil Procedure Rules will for the first year bring a lot of litigation and if not handled well, may lead to the back a backlog of cases.  See this and this ...

I think substantial efforts should have been made and should be to train advocates, magistrates, judges and the public on the new provisions in order to achieve smooth implementation.

Random Thoughts on Thursday

Independent Commissions and Offices

Independent Commissions are just that, independent.   Independence means that they must be allowed to conduct their mandate without direction from anyone or any office but within the four corners of the law.   Article 249 (2) provides that commissions and holders offices are subject only to the Constitution and the law and are independent and not subject to direction or control by any person or authority. The determination of the fate of the IIBRC will set a precedent on how we deal with independent  Commissions and offices in the future.

Truth Justice and Reconciliation Commission

The TJRC is soldering on despite suffering serious setbacks.   The Truth body has taken out full supplements in newspapers and there has been a rush of positive news in the press about their activities.   The Parliamentary Committee on Legal Affairs has already indicated that it will not extend the term for the TJRC.  has In the meantime the suit seeking to challenge the legality of TJRC is set for hearing on 8th December 2010.

Justice Deverell declined to serve on the tribunal constituted to hear the allegations against Bethuel Kiplagat.   In his stead, the Chief Justice has appointed a Mombasa based advocate Mwanaisha Saida Shariff.   The Chancellor of Kenyatta University, Retired Justice Mutungi, is now the tribunal chair.  Retired Justice Kubo is the other member.

Foreign Judges for the Supreme Court?

Article 166 of the Constitution on the appointment of judges, does not exclude the appointment of foreigners to the superior courts.   Honourable Martha Karua has  suggested the Supreme Court should have at least three foreign judges.  The Supreme Court will deal and settle the constitutional issues of the day.  Some of those issues will be very contentious and involve making political choices and Hon. Karua thinks that the inclusion of Foreigners will make people less likely to ascribe "tribal" motives.   I think we have competent Kenyans to serve on the Court.  The challenge for us to respect our institutions and for our institutions to earn our respect.

Apart from the Chief Justice and the deputy, all the judges are appointed by the President on the advice of the Judicial Service Commission.    Having seen the horse trading that has gone on in respect of the other Commissions, I hope that the JSC will avoid this and appoint people based on merit. 

Clerics and Government
I am not sure that appointing active serving clerics on State Commissions should be encouraged.  Yes, like any Kenyan Citizen, they are entitled to serve the country.  However, appointing a serving cleric blurs the line between state and religion.   It is a symbol of exclusion in the sense that in so far as a choice is made between different religions, or denominations, there is a element of favouritism.  Think about a "favoured" denomination.   It also weakens the capacity of the religious community to criticise or correct the very government in which they participate.   The ability to act as a neutral arbiter in the event of political disputes is diminished.  This after all is one of the great lessons post election violence in 2007 and the referendum.

The Commercial Court

This refrain from the Hill is fairly common, "After carefully considering the application, I hereby certify the same as urgent.  However, I respectfully decline to grant any temporary orders at this stage since the court wishes to hear all the parties ..... "

Vetting of Judges .....

Last week I was at a symposium where Prof. Yash Pal Ghai was one of the speakers.   The meeting was attended by several judges and magistrates and the topic inevitably veered to the subject of vetting.  The feeling among the members of the judiciary is that they are being discriminated against as Kenya and that the Constitution.  Prof. Ghai explained that the Judiciary is in large part to blame its predicament. When the Constitutional Review process began, the Judiciary led by the Chief Justice refused to engage with the process.  In order to unlock the impasse, a team of eminent Commonwealth Judicial Experts was invited to the country to engage with the Judiciary and advise the CKRC on matters of Judicial Reform.   This is what led Chief Justice Chunga's to retort, "Experts for what, about what ....."  This position was supported by the head of state who viewed the conduct of the Commonwealth Judges as rude, based on hearsay and certainly made in bad taste.  In the meantime, the CKRC continued to be inundated with complaints of corruption in the Judiciary.  To make matter worse Justice Kuloba issued an injunction purporting to restrain the CKRC from publishing its report on the basis that the report, which was not yet published, recommended that the all judges be sacked. [Sound familiar?] Anyway, the Judiciary lost an opportunity to enagage with Kenyans.   Things have come full circle, a new Constitution is now in place.

There is now a pushback against vetting of judges and this article by Steve Mwenesi outlines some of the arguments being bandied around.  John Khaminwa has also made similar arguments in the current issue of the Nairobi Law Monthly.  Mwenesi, who defended some of the judges subject of the tribunals, states, "the Sixth Schedule re-enacts the old Constitution to guide and govern the Executive and Legislative arms of government as it annihilates the Judiciary under the guise of the new Constitution. This is through a Schedule that overrides the express Articles of the Constitution that secure the security of tenure and independence of the Judiciary."  The 6th Schedule is as much part of the Constitution and must be given effect like any other part of the Constitution.   The security of tenure of the current judges is circumscribed by the provisions regarding the vetting of judges.  The Constitution itself envisages that vetting must be done and there is no way to get around that.  The only issue for debate is the legislation that is put in place to achieve this purpose.

Friday Miscellany

• The Judiciary launched their ICT Policy and Strategic Plan with great fanfare.  The same is still not available on their website.  This week I have had two matters adjourned because the files are being digitilized.  No one has bothered to explain to us what is happening and how this exercise will work once the court files are digitilized.
• The Chief Justice should be more circumspect is appointing  to young magistrates  to serve at the Children's Court.  How can a court grant an exparte custody order in favour of one parent without a return date and order the date to be fixed at the registry next year. A recipe for disaster especially with coming holidays.
• Nothing is worse than preparing to file an urgent matter which you can't file because the payment you made at the bank has not been reflected on the "system" and you just have to wait until it "shows."  By the time payment is reflected, its past 12 O'clock and the Duty Judge is not accepting any matters.
• The Kamkunji petition will now commence hearing on Monday, 22nd November 2010.  The Kamkunji MP, Simon Mbugua undertook to proceed with the matter on a daily until the matter is finalised.  The MP also undertook to be present in court throughout the case and he will represent himself should his advocate fail to turn up during the case. Only in an Ang'awa's court is this possible.  I imagine that this matter should be over in a few weeks.
• The Commercial Division of the High Court of the largest economy in this region of the world is not pulling its weight!

IIBRC saga continues .......

 Embattled Chairman of the IIBRC courtesy of the Nation

• Justice Gacheche issued an order to prohibit publication of the new constituencies at the behest of 11 Central Province MPs who once again sought to block publication of the IIBRC Report.   The matter was fixed for inter parties hearing on 25th November 2010.  Yesterday, the IIBRC advocate presented to court an application to court to set aside or discharge the injunction orders.  The matter was referred to the Chief Justice who ordered that the same be mentioned on Monday, 22nd November 2010.   This is really, a messy situation. 
• Under the old Constitution, the Chief Justice was a member of both the High Court and Court of Appeal.   The basic objection to this position was that he couldn't be a member of two courts when there was a possibility that his ruling and judgments in the High Court could be appealed to a court in which he a member.   I do not recall nor do I know any instance that this happened but as a practical matter, it is a position where he could in certain circumstances intervene in a matter of national interest or urgency.  Take, the present case regarding the IIBRC,  the Chief Justice role, in a case of such magnitude is merely  give directions.  He cannot and does not have jurisdiction to make orders which would affect the rights of the parties.  His role like a conveyor belt.  The Chief Justice cannot constitute himself into a High Court Judge and deal with the matter once and for all.
• The government  is also divided  confused on whether to support the report by IIBRC.
• What would happen, if the IIBRC disregarded the injunctions and proceeded to publish its report?  Who would be liable for contempt of court?
• Why the report of the IIBRC should be released.

Injunction issued against IIBRC

The High Court, Justice Jean Gacheche,  issued an injunction restraining the Independent Interim Boundaries Review Commission (IIBRC) from gazetting the new constituencies.  This order was issued not on the basis of a published report or gazette notice but on the basis leaks to the press and dissenting opinions expressed by some commissioners.  A matter of concern is the fact that the mandate of the IIBRC expires on 27th November 2010 yet the injunction was issued to last until 2nd December 2010 when the Commission will no longer, in law exist.

I agree with the position taken by the Speaker when he stated that, "Ligale’s team should move on and gazette their recommendations as the law requires of them, and then we will deal in the aftermath also as the law prescribes.  I am satisfied that they stuck to the mandate, we are the ones who enacted that legislation and we cannot ignore it," the Speaker said.  It is only after the report has been published that one can determine whether the established legal standards were established in delineating the constituencies.

If the injunction remains in place, the likelihood is that the MP's will sit down among themselves and share the "spoils."  What is clear is that the MP's want to arrogate to themselves the power to draw  and determine their own constituencies. As a precedent, this decision undermines the position of independent commissions within the Constitutional set up.

Piracy

Kathurima M'Inoti explains why the ruling on piracy left more queries than answers.

Nominations to the Judicial Service Commission

The President and the Prime Minister have nominated Bishop Anthony Muheria and Professor Christine Mango to join the Judicial Service Commission.  The two will have to be approved by the National Assembly.   Bishop Anthony Muheria is the Catholic Bishop for Kitui Diocese while Professor Christine Mango was the former MP for Butula.

Monday Miscellany

• Any comment on the the yet unseen and leaked Interim Independent Boundaries Review Commission  Report is  premature.    An independent Commission does not exist to satisfy all or some of the members of the National Assembly.  Indeed not everyone will be satisfied by the outcome.  It is not a legal  requirement that all the members of the Commission have to agree. on the outcome.  The minority members may issue a minority report. or refuse to sign off the majority report.  The Commission was a assigned a duty, which it must do or satisfy, in accordance with the law.   Should the Commission fail in its duty, of course the court may intervene, where appropriate to see to it that, the law is followed.  So lets wait and see whether the report complies with the law.
• According to Njoki Ndung'u, the CDF will be phased out.  According to her, the function of the CDF will be taken over by the counties.  The role of the legislature in articles 94, 95 and 96 of the Constitution is purely, legislative and supervisory in nature.  It is thus inevitable that given the separation of powers, the National Assembly will lose its power of the CDF.  This will be a real fight.
• This report that the judges who were victims of the Ringera purge are suing the state for millions of shillings should be cause of concern.  One of  the incidents of security of tenure is that the procedure only allows for removal of judges.   It is assumed that persons appointed to high judicial office are beyond reproach.  A judge cannot be disciplined outside the process provided for removal as such discipline may be seen as interference with  independence.  Therefore, when the persons charged with dealing with complaints are confronted with a disciplinary issue, the only constitutional process recognised is to initiate removal of the judge concerned, if he is satisfied that a prima facie case is made for such removal.  That process may or may not result in a finding of guilt.   In the case of the Ringera led purge, some judges felt that they should have been given a hearing prior to the consituting the tribunal.  My view,  is that the tribunal is self contained system that provides the determination of issues of misconduct by judges. To demand anything less would be watering down the independence and security of tenure.  It would be against public policy to allow a suit for damages for a legal process invoked in accordance with the Constitution.  Finally, I wonder what loss and damage is suffered if in fact during the time of suspension and pendency of the tribunal proceedings, a judge is entitled to his full emoluments?  Speaking for me only.

 

The Piracy Case and crimes under International Law

The Piracy Case has too many loose ends .......

One of the reasons why attempts were made to amend the Constitution  to provide for the trial of persons responsible for 2007 Post Election Violence  (PEV) offences, was that Kenyan law, at the time did not provide for  offences of genocide and crimes against humanity.  It was thus impossible to try and convict person of international crimes as  Section 77 (4) of the old Constitution of Kenya provided that, "No person shall be guilty of a criminal offence be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for such a criminal offence that is severer in degree or prescription than the maximum penalty that might have been imposed for that offence at the time it was committed.”  The International Crimes Act,  (Act No. 16 of 2008) was enacted to fill this lacuna and provide for the same but even under the old Constitution, it was not possible charge someone with an offence under international law as it fell foul of section 77(4).

Article 50(n) of the Constitution now provides that every accused person has a right to a fair trial, which includes the right, "not to be convicted for an act or omission that at the time it was committed or omitted was not (i) an offence in Kenya; or (ii) a crime under international law."  Thus notwithstanding the lack of a specific law in Kenya defining an offence, the court in Kenya can take cognisance of a crimes of international law like genocide and piracy.  This section is reinforced by Article 2(5) and (6) which applies international law in Kenya.  In deciding the case before him, the judge seems to have been enamoured by the writings of certain academics rather than having regard to the express provisions of the Constitution.  

Article 50(n)(ii)  saves offences under international law and since the offence the Penal Code incorporates the international offence, as the judge found, the trial could have continued as if it were an offence under international law in terms of Article 50(n)(ii).   Article 50(n)(ii) is, in my view, a direct answer to the question of whether the offence of piracy jure gentium under international law could have been saved notwithstanding the repeal of the Penal Code and enactment of the Merchant Shipping Act.  The Constitution itself provides the sunset for the Penal Code provisions.

Of Piracy and precedent setting decisions ....

 I think this commentary by Ahmednasir misstates the effect of the piracy case.  As I stated, I think the court decision is of limited application is so far as the prosecution of pirates in Kenya is concerned.  The Penal Code, section 69 has now been repealed and the Merchant Shipping Act, 2009 is now the controlling statute in matters piracy.  That statute is a restatement of international law relating to  piracy in so far as it adopts the United Nation Convention on the Law of the Sea (UNCLOS) which Kenya has ratified and which is ordinarily be applicable to Kenya by virtue of Article 2(6) of the Consitution.

One of the issues which I think merits consideration and which I think the judge erred was his construction of the limits of the courts jurisdiction.  Section 5 of the Penal Code provides, "The jurisdiction of the courts in Kenya for the purpose of the Code extends to every place within Kenya, including territorial waters."   Thus, the Judge reasoned, section 69 which refers to an offence on the High Seas was inconsistent with the jurisdiction clause.  He states, "Section 5 is juridically paramount to and overrides section 69(1) to the extent of the inconsistency.  This I refer to as a legislative misnomer."   I would say that this statement is a judicial misnomer because one part of the statute cannot override the other, the duty of the judge is to give effect to the whole statute and meaning of each and every section.  In my view, the jurisdiction clause is one of general application for all offences under the Code, the  legislature though, considered it necessary to enact a specific exception to the territorial jurisdiction clause at section 69 in relation to the offence of piracy.   That section must be applied and cannot be ignored by stating that it is a legislative misnomer.  

In order to underpin his faulty reasoning, the judge relied on section 2 and the proviso thereto of the Penal Code which states in part, "Except as hereinafter expressly provided nothing in this Code shall affect .....  The liability of a person to be tried or punished under the law in force in Kenya relating to the jurisdiction of the courts of Kenya for an offence in respect of an act done beyond the ordinary jurisdiction of such courts ...... Provided that, if a person does an act which is punishable under this code and is also punishable under another written law of any kind mentioned in this Section, he shall not be punished for that act both under that written law and also under this Code.”  {emphasis mine} According to Justice Ibrahim,  "The preamble in Section 2 is very clear, the exception would be in respect of any matter provided outside the code i.e. in any other written law or otherwise outside the Code.  It is my opinion that the jurisdictional limits set out in Section 5 of the Penal Code would not apply to any other law which provides or legislates for punishment or trial of acts done beyond the “ordinary jurisdiction of such courts” (emphasis mine). As a result, Section 2 which as a saving provision does not save the enforcement of acts  done in the High Seas as had been unprocedurally attempted by Section 69 (1) of the Code."

Again, the Judge ignored the clear provision of section 69 by stating that written law only applied to is a matter outside the Code itself.   In the case of piracy upon the High Seas, Parliament has already provided by way of written law that in fact the offence can be committed outside jurisdiction of the courts.  In my view,  section 69 is part of the  "law in force" referred in section 2.   Secondly, all that section 2 appreciates is that notwithstanding the general jurisdiction of the court to deal with offences within Kenya's territorial jurisdiction, the legislature may confer by any other law the jurisdiction of the court to take cognisance of offences outside jurisdiction.   The "written law of any kind" is in reference to punishment of the accused and it is a prohibition against double punishment.  Finally by referring to the "unprocedural" manner in which section 69(1) was included in the Penal Code, is the Judge stating that the legislature cannot make amend  the Penal Code to enable the court take cognisance of offences committed outside jurisdiction.   I think, the court should not tie the hands of the legislature especially in this day of terrorism and the prevalence of extra-territorial offences.

This is a case of judicial overreach and does not advance the interest of the people and Government of Kenya to give effect to international obligations and in this respect, fighting piracy by co-operating with international partners.   Contrary to what Ahmednasir stated that, "court laid bare the inconsistency in our laws, the haphazard enactment and repealing of the laws and the danger posed by a Legislature and Executive that fail to a adopt an holistic view to law reforms."   I think the court created confusion and failed to adopt a holitic view of law reforms.

Piracy Case (Updated)..

The piracy case can be found here. I am out of town so I can't post fully. I wish to make two observations though, in relation to the decision;

1. I think the decision is of more limited application as the accused were charged under the Penal Code which was repealed and replaced by the Merchant Shipping Act in the course of the trial. The Judge considered that in the circumstances of this case, the trial could not be saved by the new legislation.

2. The judge did not say that pirates could not be tried for offences outside Kenya's jurisdiction under the Merchant Shipping Act. His observations were limited to the provisions of the now repealed Penal Code.

The state therefore can continue to bring piracy prosecutions for acts of piracy occurring after 1st September 2009. I must say that Justice Ibrahim's reasoning is rather tortured and I will revert to this issue in a later post as the judge made statements which may have broader legal implication.

Pitfalls of obiter dicta arrest and committal for civil obligations

Justice Martha Koome

 Obiter dictum are those remarks that are made by the judge that are not necessary for the decision.   Justice Koome heard a fairly routine application for stay execution of a judgment by way of arrest and committal pending bankruptcy proceedings.   The issue is dealt with squarely by the Bankruptcy Act which allows the judge discretion to stay such arrest and committal.    In fact, more often that not, the court will normally grant stay as the threat of  arrest  and committal  makes the debtor prefer one creditor over the others.   If the court  had left the issue there, the case would not have assumed "landmark" status.  The issue of the applicability of the the International Covenant on Civil and Political Rights (ICCPR) raised  by the applicant's counsel was not strictly necessary for determination of the issue.  In fact the the judge recognised that her remarks were obiter by prefacing them as commentary.  She stated;

"The provisions of the Constitution of Kenya 2010 was also invoked, and this ruling would not be complete without a commentary on those submissions. Principally I agree with counsel for the Debtor that by virtue of the provisions of Section 2(6) of the Constitution Kenya 2010, International Treaties, and Conventions that Kenya has ratified, are imported as part of the sources of the Kenyan Law. Thus the provision of Article 11 of the International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972 is part of the Kenyan law. This covenant makes provisions for the promotion and protection of human rights and recognizes that individuals are entitled to basic freedoms to seek ways and means of bettering themselves. It obviously goes without saying that a party who is deprived of their basic freedom by way of enforcement of a civil debt through imprisonment, their ability to move and even seek ways and means of repaying the debt is curtailed.”

Contrary to public perception, the court did not declare arrest and committal to civil jail unconstitutional.   In fact the court did not make reference, to the specific part of the Constitution which either directly or by implication outlaws arrest and committal for failure to pay a debt.   Article 11 of the ICCPR provides, "No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation."    No similar provision exists in the Constitution.  In making her by the way remarks, the judge sowed seeds of doubt and confusion. 

Article 2(5) of the Constitution imports general rules of international law in Kenya and Article 2(6) provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.   By refering to Article 2(6) of the Constitution, did the learned judge mean that the Article 11 of the ICCPR superior to our Civil Procedure Act and that our Act is to be judged in accordance with the standard established by the treaty? If so,  does it  imply that in fact treaty law is superior to our local Acts of Parliament or indeed part of Constitution.

 

We live in exciting times and judges must avoid making unnecessary pronouncements on Constitutional provisions.  Court decisions speak to the public and create expectations and the public does not distinguish between  the decision proper and obiter. Right now some magistrates are already taking the decision of the court as an authoritative pronouncement of the law!

Article 11 of ICCPR, by use of the word "merely" recognises that indeed there may be cases where arrest and committal may be used to enforce a civil debt.  Obviously, the recalcitrant debtor

Pirates Galore? [WITH UPDATE AND CORRECTION]

 Somali Pirates in Court at Mombasa courtesy AP

In April this year the Government confirmed that it would no longer be a forum for the trial of Somali pirates captured in the high seas due to the fact that that foreign government were not providing sufficient resources to ensure that these cases were dealt with by the already overburdened judiciary.    Several MoU's signed between Kenya and foreign government have now been terminated thereby putting an end to Kenya as a Piracy  Criminal Court destination for the region.   The final nail in the coffin is the decision by the High Court in Mombasa that the local courts do not have jurisdiction to try offences committed outside its territorial waters. 

Section 69(1) of the Penal Code repealed, in 2009, provided, " A person who, in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of piracy."   That section was repealed by the Merchant Shipping Act (No. 4 of 2009). which at section 371 provides for the offence of piracy.   The section states, "Any person who  (a) commits any act of piracy; (b)  in territorial waters, commits any act of armed robbery against ships  shall be liable, upon conviction, to imprisonment for life."   Section 369 of the Act sets out the definition of piracy, " (a)  any act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed -(i)  against another ship or aircraft, or against persons or property on board such ship or aircraft; or (ii)  against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b)  any voluntary act of participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or(c)  any act of inciting or of intentionally facilitating an act described in paragraph (a) or (b)."

Under the repealed Penal Code provisions, the court could take cognizance of the offence of piracy committed on the high seas outside the territorial waters. The use of the word piracy jure gentium imported the principles of international law that recognise international jurisdiction in respect of piracy.  However, the Merchant Shipping Act is clear that the offence must be committed in territorial waters.  

According to  Hon. Adan Keynan,  Chairman of the Parliamentary Committee on Defence and Foreign Relations,  “Arresting, prosecuting and incarcerating pirates here exposes Kenya to these very serious security challenges. It’s not in the interest of Kenyans to try Somali pirates here.” This view coming from a member of parliament is rather short sighted given the fact the Kenya is a maritime nation and failure to deal robustly with piracy is bound to affect our economy negatively.  Further, Parliament should not remove the option of Kenya dealing with piracy outside its jurisdiction.  There may well be cases that may require such intervention.

Prof James Gathii discusses the issue of jurisdiction to prosecute non national pirates in Kenya here.

Of course, I await a copy of the decision delivered by Justice Ibrahim.


 

UPDATE AND CORRECTION

My attention has been drawn to the fact that, section 317 (a) of the Merchant Shipping Act is a separate offence from 371(b).   The section is to be read disjunctively hence piracy, as defined in section 369, is an offence for which the courts in Kenya can take cognisance irrespective of where it occurs. 

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