Justice J B Ojwang
Justice Ojwang', who I consider a leading contender for a seat on the Supreme Court, in the case of Kenya Transport Association vs Municipal Council of Mombasa & Another (eKLR 2011) delivered a ruling I consider revolutionary in terms of our jurisprudence. I had not really thought about until I heard the judge praise his decision at the JSC interview. I think his analysis speaks for itself;
(2) The Constitution, and the Public Procurement and Disposal Act – Organic Law
The claim of discrimination contrary to Article 27 of the Constitution is integrally linked to the functioning of the Public Procurement and Disposal Act; only by due compliance with that enactment, would 1st respondent as a public authority, give fulfilment to the safeguards of that Article, with regard to the contract for parking services. But the petitioner has shown by evidence that 1st respondent had rendered the contract to 2nd respondent without complying with the Public Procurement and Disposal Act. In parity with the Constitution, the Act regulates procurement procedure in detail, guided by the principle that unequal, preferential treatment is not to be accorded to a particular person, to the prejudice of others; and even where open tendering is not required, any alternative method of procurement must comply with certain rules. ………. . It was a discriminatory process which, without lawful cause, entirely excluded those such as the members of the petitioner. As against these members of the petitioner, their fundamental rights and freedoms under Article 27 of the Constitution had been infringed, and their rights to fair administrative action, under Article 47, had been contravened. Although counsel for the respondents urged that the petitioners should have sought a redress by invoking the administrative processes provided for under the Public Procurement and Disposal Act, such a position is not to be upheld, where constitutional rights have been, as in this case, infringed, and the aggrieved persons have opted for enforcement by Court process.
Although counsel for the respondents contended that the impugned public-private partnership between them had been conceived in accordance with the Local Government Act (Cap. 265), this will not spare their act from the mandatory obligations created by the Constitution, which are well reflected in the procedures of the Public Procurement and Disposal Act ( Cap 412C). This statute, in relation to the Local Government Act, is superior in its operation, for it faithfully reflects the terms of the highly progressive Constitution of 2010, and on this account, is in every sense an organic law to the Constitution: compliance with the safeguards of the Constitution is, simultaneously, compliance with the procedures of that Act. It is clear that the respondents herein are in breach of both documents, and the proper orders must be made.
Why do I consider this ruling revolutionary? The organic law theory, as elucidated by the learned judge and no doubt inspired by French law, deems certain statutes superior to others by constitutional imprimatur. Kenya has a hierarchy of laws, the Constitution being the Supreme Law and then Acts of Parliament. Any Acts of Parliament that are inconsistent with Constitution are void to that extent. All Acts of Parliament are of equal force and status and it is the duty of any court dealing with inconsistent statutes to give effect to each of them in a manner that effects the legislative will. This concept of superior acts or laws in parity with the Constitution is really alien to our system of law and has no precedent in Kenyan law. What standard do we use to define superior or organic legislation? Are the statutes that that are enacted specifically pursuant to Constitution provisions, as set out in 5th Schedule, to be regarded as organic laws?
Is this the kind of judicial activism we must be wary of?