Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN ISSUES FOR LAW REFORM Counsel for the State argued that there was no constitutional provision that was more superior to another. The Court did not agree with the submission by State Counsel. In the Court’s opinion: • The rights embodied in the Bill of Rights were inherent or natural rights and they could not be taken away by the State. Parliament did not have the power to take away the basic structures of the constitutional “sanctum” - the Bill of Rights, the security of tenure of Judges, which is the cornerstone of the rule of law, and the democratic provisions of Section IA of the Constitution. • The courts have the jurisdiction to declare conflict or inconsistency in the constitutional provisions, or to declare whether or not the provisions are in conflict with any values, principles or purposes of a democratic constitution such. • The High Court did not have jurisdiction to strike out or alter Section 66 of the Constitution or indeed any other section even if the section contradicted another section of the same Constitution. The process of altering Section 66 of the Constitution or indeed any other provision of the Constitution was the mandate of the National Assembly. Ultimately, only the people had the power to enact a new constitution. • The entrenchment of Section 66 establishing the Kadhis’ Courts in the Constitution was inconsistent with section 65 which grants Parliament power to establish other courts subordinate to the High Court. Section 66 was inconsistent with the secular nature of the state as it favoured one religion in preference to other faiths. • Section 4(2) (b) of the Kadhis’ Courts Act was inconsistent with section 66(4) of the Constitution and was therefore void to the extent of the inconsistency. Interpretation of the Constitution and the El Mann doctrine There are two predominant schools of thought of constitutional interpretation: the broad liberal way and the technical, narrow manner commonly referred to as the ‘Elmann doctrine’ after the case of Republic vs. Elmann [1969] E.A. 357. Other jurisdictions with much more developed jurisprudence have more schools of constitutional interpretation. Such jurisdictions include the USA and Australia which have had constitutions for a long period of time. One school of thought consists of Originalists. They are of the opinion that the best way to interpret the Constitution is to determine how its framers intended the Constitution to be interpreted. They look at several sources to determine this intent, including the contemporary writings of the framers, and the notes from the Constitutional Convention itself. The High Court in this case examined the genesis of the Independence Constitution including the treaty between the Sultan of Zanzibar and the Kenyan government. • The Court looked at the intention of the framers and surmised that their intention was that the Kadhis’ courts should only have jurisdiction within the former protectorate. • Further, the High Court gave a restatement of the Elmann doctrine. It reiterated that the Elmann doctrine has mistakenly been construed to say that the Constitution would be construed like any other ordinary statute. It opined that the said decision reiterated two cardinal principles of interpretation: a liberal interpretation in certain contexts where the words used are ambiguous and imprecise and where the words used are precise and unambiguous, they will be construed in their literal meaning. This approach taken by the court may lead constitutional lawyers and scholars to re-examine their interpretation of the case of Republic Vs. Elmann. Separation of Religion and State Finally, the suit raised the issue of separation of religion and State. One of the main contentions by the applicants was that the Kadhis’ courts are funded from the State coffers and therefore the State was promoting one religion over the others. They also contended that Kenya was a secular State. The court held that: • Sections 1 and 1A of the Constitution signified that Kenya was indeed a secular state. Sovereignty encompassed the independence of the people of Kenya and a multiparty democratic state encompassed the admission of the diversity of social economic and political thought. • Sovereignty and multipartyism encompassed the way of life the people of Kenya had adopted and signified that Kenya was a secular state. Religion via section 66 had stepped out of its own sphere and encroached on that of lawmaking in the sense that it was made to coerce the state into enacting religious principles and commandments into law thereby breaching the separation of religion and State. 80 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN ISSUES FOR LAW REFORM Procedure in the discipline, investigation and/or removal of a Judge - Scope of the authority of a Tribunal established to investigate the conduct of a Judge under section 62 of the Constitution Republic v Chief Justice of Kenya & 6 others ex-Parte Ole Keiwua [2010] eKLR High Court of Kenya at Nairobi M. Apondi, G. Dulu & M. Warsame JJ April 20, 2010 This judicial opinion in this case (also reported in the ‘Feature Case’ column of this edition), concerned the procedure in the discipline, investigation and removal of a Judge from office. The Judicial Review court that was considering an application by a suspended Judge of Appeal challenging a Tribunal appointed to investigate his conduct made certain pronouncements that shed new light on the administrative actions that should precede the appointment of such a Tribunal and the scope of the Tribunal’s mandate. These pronouncements are pertinent to and would inform the ongoing debate on the proper procedure in the disciplining and/or removal of judges. The High Court held, among other things, that: • Under section 61(2) of the Constitution, a Judge is appointed after the President has received the advice of the Judicial Service Commission (JSC) that a person is fit and competent to hold the office of a Judge. When a question arises as to the removal of a Judge, it is essential to seek and obtain the advice, guidance, contribution and direction of the JSC as it was the same body that had given the advice to the President that it was okay to employ him in the first instance. Since the Chief Justice as the Chairman of the JSC had mandated the Integrity and Anti-Corruption Committee of the Judiciary [the Ringera Committee] in 2003 to conduct investigations into the conduct of judicial officers, the JSC ought to have been the first branch that ought to have authorized the next step. • The role of the JSC would be to determine whether the act complained about is of the nature and degree to qualify as misconduct sufficient to set in the processes that may lead to an adverse representation being made to the President. Such an examination would include seeing and hearing the complainant and the Judge separately for that would serve to inform and enhance a balanced and proper evaluation of the circumstances that has arisen which is likely to lead to removal of a Judge. • The representation to the President to appoint a Tribunal is such a grave and serious matter with severe consequences of likely to remove a Judge from office that it is mandatory for the Judge to be given a hearing either by the JSC or by the Chief Justice before the representation is made to the President. The Judge ought to be heard by the JSC prior to the commencement of the removal exercise. Though the Constitution was silent on this, a presumption arose that the Legislature did not intend to deny natural justice to the applicant or to any other Judge. • The President has no power to empower a tribunal to conduct an inquiry or investigation other than or outside the representation he receives from the Chief Justice. In this case, it was not proper for the Tribunal to purport to gather evidence and to engage investigators to sustain what it was calling charges against the applicant Issue 12: April-June 2010 81
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Bench Bulletin - Issue 12 - Kenya Law Reports

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