I have no doubt that the proposed Employment and Labour Relations Court and the Environment and Land Court (High Court Status Courts) to be established under Article 162(2) will lead to a lot of litigation. I have written about some of the issues here and I think the overarching issue of jurisdiction will give the courts some heartburn.
Exclusivity of Subject Matter
The nature and extent of the jurisdiction of High Court Status Courts to be established under Article 162(2) deal with specific subject matter. First, there is the issue of exclusivity of the subject matter. It is argued that on a reading of Articles 162(2) and 165(5) means that the court must be empowered to deal exclusively and wholly with the subject matter as defined. So that if the Employment and Labour Relations Court is empowered to deal with labour matters then that court is to deal with the whole spectrum of matters regarding labour including criminal matters. Second, the argument is then extended further to argue that Article 162(2) does not grant authority to the legislature to create a “court system” so that subordinate court cannot be granted jurisdiction to deal with the subject matter of the courts defined by Article 162(2).
Parliament to Determine Jurisdiction
The answer to this question is to be found in Article 162(3) which is clear that “Parliament shall determine the jurisdiction and functions of the court contemplated in clause (2).” Parliament is thus entitled to determine the nature and extent of that jurisdiction including the exclusivity aspect. Article 162(2) does not require that the High Court Status Courts shall deal with all the disputes but that Parliament shall determine the extent of that jurisdiction. The import of Article 165 then is that once the jurisdiction of that court is provided for then that of the High Court is excluded.
In addition to the power granted to the legislature to determine the jurisdiction of the High Court Status Courts under Article 162(2)¸ parliament is empowered by Article 169 to enact legislation conferring jurisdiction, functions and powers to subordinate courts. The implication of this is that the court may grant subordinate courts the jurisdiction to deal with the subject matter granted to High Court Status Courts under Article 162(2) and confer appellate jurisdiction to that court.
To my mind, the issue of criminal jurisdiction should not arise in the case of the High Court Status Courts. A plain reading of Article 162(2) is that the courts so established are intended to “hear and determine disputes.” Criminal matters are not, in my view disputes as contemplated by the article. As a practical matter though, conferring criminal jurisdiction to special status court would pose serious challenges of access to justice. Imagine a system where the High Court was dealing with all types of criminal offences. The system would be simply overwhelmed thus it make sense to remove criminal offences from the High Court Status Courts.
Interpretation of the Constitution and enforcement of the Bill of Rights
One of the issues that need resolution is whether the High Court Courts have jurisdiction to enforce the Bill of Rights under Article 23(1). The proposed Employment and Labour Bill, 2011 seems to imply that the court has such jurisdiction. Jurisdiction over enforcement of Bill of Rights matters can only be donated, by Parliament, to subordinate courts in accordance with Article 23 (2) of the Constitution. Unless the High Court Status Courts are deemed to be the High Court for purposes of these provision then such jurisdiction would be lacking. Since Parliament is empowered to define the jurisdiction of the High Court Status Courts, does this power include the power to carve out from the Constitution jurisdiction ordinarily granted to the High Court outside the subject matter of Article 162(2)?
Ultimately the contours of jurisdiction will have to be determined by practical issues relating to access to justice, within the constitutional framework.