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!
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.
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."