Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN Mr. Nicholas Okemwa, Snr. Law Reporter, Head of R & D Department DEPARTMENTAL REPORTS RESEARCH AND DEVELOPMENT DEPARTMENT UNITED NATIONS JURIDICAL YEARBOOK The National Council for Law Reporting (NCLR) as the official law reporter for the Republic of Kenya has a vast database of judicial decisions. It is for this reason that NCLR was requested by the Judiciary to identify and forward cases touching on the legal status or privileges and immunities of the United Nations and specialized agencies for the United Nations Juridical Yearbook of 2009. The United Nations Juridical Yearbook has been published on an annual basis reviewing legal developments starting from 1963. This was pursuant to resolution 1814 (XVII) of 18 December 1962, where the General Assembly requested the Secretary- General to publish a juridical yearbook, which would include certain documentary materials of a legal character concerning the United Nations and related intergovernmental organizations. The General Assembly considered that one of the most effective means of furthering the development of international law consisted in promoting public interest in this subject and using the media of education and publicity to familiarize the general public with the principles and rules that govern international relations. It further considered that greater knowledge of the aims, purposes, and structure of the United Nations constituted another positive method of promoting the development of international law. The United Nations Juridical Yearbook is therefore of great import to all and sundry. The Research and Development Department was tasked with this request and undertook an analysis of the 2009 decisions. The search yielded one result namely Tanad Transporters Ltd v United Nations Children’s Fund [2009] eKLR. Briefly the facts were that the applicant, who had been contracted by the respondent to provide transportation services, filed an originating summons pursuant to the provisions of the Arbitration Act and Section 3A of the Civil Procedure Act seeking to compel the respondent to submit to arbitration within twenty one days upon issuance of the court order and in the alternative, be granted leave to commence suit against the respondent. This was because, the applicant claimed, the respondent had declined service citing diplomatic immunity and had even denied access to the process server to its offices following a dispute regarding the said contract. The court however, directed the applicant to make arguments with regard to whether the court had jurisdiction to hear the application in light of the fact that the defendant was a United Nations organization and therefore was accorded immunity from civil proceedings by the Republic of Kenya. The applicant contended that the respondent, being a party to an agreement that had an arbitration clause, and which agreement was of a commercial nature, was precluded from invoking its diplomatic immunity The issue for determination by the court was whether the court had jurisdiction to entertain a suit where one party had immunity from both criminal and civil proceedings. Held: 1. The transportation agreement between the applicant and the respondent related to the official function of the respondent. The respondent therefore had full diplomatic immunity from court proceedings. The Kenya Arbitration Act, 1995 and the Civil Procedure Act did not apply. 2. The applicant could not therefore invoke the provisions of the said Kenyan municipal law to compel the respondent to submit to arbitration. The applicant had no choice but to commence arbitration proceedings under the UNCITRAL Arbitration Rules. 3. The court lacked jurisdiction to hear and determine the dispute between the applicant and the respondent, even in the circumstances where the applicant established that there existed an arbitration clause. Further, the respondent had full diplomatic immunity from civil proceedings in the court under The Privileges and Immunities Act and the Vienna Convention on Diplomatic Relations, 1961. 28 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FEATURE CASE The Constitutionality of the Kadhi’s Courts Jesse Kamau & 25 others v Attorney General [2010] eKLR Misc. Civil Application 890 of 2004 High Court at Nairobi JG Nyamu JA & RVP Wendo, MJA Emukule JJ May 24, 2010 This was an application filed in 2004 by 24 Clergy persons from various religious institutions challenging the proposal to include the Kadhi’s Courts in the then Proposed New Constitution of Kenya (commonly referred to as the Zero Draft or the Bomas Draft). The suit was filed against the Attorney General and the now defunct Constitution of Kenya Review Commission. Though the Supreme Council of Muslims was served with the application, it did not participate in the proceedings whether as an interested party or in any other capacity. The Hindu Council of Kenya had been served with the application and it filed an affidavit in which it raised concerns sympathetic to the applicants, basically that inclusion of the Kadhis courts in the Bomas Draft appeared to favour one religion against another. While the hearing of the application was pending, the Proposed Constitution was rejected at a public referendum in 2005 and the Commission was wound up. In fact, the hearing of the case started after the referendum had been done. Ms. Abida Ali Aroni, who was then the Chair of the Constitution of Kenya Review Commission (and at the time of the judgment a Judge of the High Court) filed a replying affidavit opposing the application. The Commission was represented by the Hon. James A. Orengo while the state was represented by Mr. A. Ombwayo, Principal Litigation Counsel. Among the declarations sought by the applicants: • That Section 66 of the Constitution of Kenya which introduces and entrenches Kadhis’ Courts in the Constitution infringed on the Constitutional rights of the applicants to equal protection of the law embodied in sections, 70, 78, 79, 80 and 82 of the Constitution and to that extent was discriminatory, unconstitutional and should be expunged in its entirety from the Constitution; • That section 66 of was inconsistent with section 82 of the same Constitution and was therefore null and void; • That any provision similar to section 66 of the Constitution of Kenya in word or effect as proposed in the draft otherwise known as the “Zero” or “Bomas Draft” or any other draft infringed on the right of the applicants and was discriminatory, unconstitutional, null and void and of no effect; • That the enactment of the Kadhis’ Courts Act contravened the Constitution and was to that extent null and void; • That the financial maintenance and support of the Kadhis’ Courts from public coffers amounted to segregation, was sectarian, discriminative, unjust and amounted to separate development of one religion and religious practice and therefore unconstitutional. Some pertinent arguments • Jurisdiction: The state argued that the High Court had no jurisdiction to strike out section 66 of the Constitution and that the court had only jurisdiction to strike out a law other than a provision of the Constitution. Counsel urged that section 66 of the Constitution is an existing provision and cannot be struck out as being contrary to section 3 of the Constitution as no provision of the Constitution is superior or inferior to any other provision of the Constitution. It was argued that an order of the court nullifying any provision of the Constitution would itself be unconstitutional. • Separation of powers: That the application itself was an infringement of the doctrine of the separation of powers as envisaged under section 23 and 24 of the Constitution and that the doctrine of a secular state was not clearly defined in the Constitution. • That section 66 of the Constitution could only be altered in the manner prescribed by sections 46-49 of the Constitution, namely, through Bills passed by the National Assembly and assented to by the President. Counsel also argued that the Judicature was itself a creature of the Constitution and it had no power itself to alter any entrenched or other provision of the Constitution. • It was argued on behalf of the Commission that at the time the application was filed, the question whether or not it would be right to entrench the Kadhis’ Courts in the proposed Constitution was under negotiation before the Commission, Parliament, the Referendum and the President, and that these government organs were better suited to resolve the issue. Counsel for the Commission therefore submitted that the subject matter of the application was an issue beyond the courts and judicial processes. Issue 12: April-June 2010 29
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