Justice Erastus Githinji at the Tiller: The rancor against the constitution in Ferdinand Ndung’u Waititu v Benson Riitho Mureithi

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By Joshua Malidzo Nyawa

Into the months of these dumb, pole and weak,

We have to infuse the language of the soul.

Into the hearts of their weary and warn, any and forlorn,

We have to minister the language of humanity.

Rabindra Nath Tagore.

Lord Denning, the common law legendary once categorized judges into two, he provided the following classification of judges: “On the one side there were the timorous souls who were fearful of allowing a new cause of action. On the other side there were the bold spirits who were ready to allow it if justice so required.” One does not require a miracle, one does not need the intervention of the angels or of the witchdoctor to classify where Hon Justice Erastus Githinji falls. The ‘progressive development of the law’ is said to be credited to judicial creativity and the courage of bold spirits. Kirby notes that these “timorous souls” show blind allegiance to existing rules and precedent and the “dead hand of the past”, they therefore end up serving a mechanical and not a constructive, role in the law. Lord Denning was of the opinion that, if “[t]he powerful still abuse their powers without restraint,” this is due to the dominant influence of “timorous souls”; for, according to Denning, bold spirits will not allow “any rule of law which impairs the ­.

Ferdinand Ndung’u Waititu V Benson Riitho Mureithi: court of appeal analysis­

The court of appeal once again upheld the shackles of inhibition at a time when we thought we had made great strides after the Mumo Matemu , seeking to return us back to the days of ‘Wangari Maathai, a position that if upheld in the post- 2010 constitutional dispensation would be anachronistic and unacceptable.

The court of appeal analyzed the facts as follows;

By Gazette Notice No. 115 dated 10th January, 2014, the Cabinet Secretary appointed the appellant as Chairman of the Athi Water Services Board for a term of three years. In his petition the 1st respondent challenged the constitutionality of the appellant’s appointment as the Chairman of the Athi Water Services Board contending that the appellant was not a person of integrity, and that in making the appointment the Cabinet Secretary contravened the Constitution as she failed to comply with the provisions of Article 73 in Chapter 6 of the Constitution………….. In her judgment, the learned judge found that there were serious integrity issues that were not resolved during the process of the appointment of the appellant; that no proper inquiry was made regarding the suitability of the appellant as required under the Constitution; that the Cabinet Secretary failed to comply with the requirements of the Constitution as the appointment of the appellant fell below the standard set by the Constitution; and that the Cabinet Secretary failed to exercise her mandate in accordance with the Constitution. The learned Judge therefore declared the appointment of the appellant as the Chairman of the Athi Services Board null and void, and issued an order quashing the appointment.

While allowing the appeal, it was the courts considered opinion that the petitioner lacked standing, the petitioner was motivated by his personal interest, he was seeking to have an advantage over the appellant in a case in court and that he did not seek to serve a public interest. It held that:

With due respect, the trial judge did not pay much attention to the aspect of good faith. In the 1st respondent’s affidavit sworn in support of the petition, the 1st respondent swore that the appellant had dishonestly and fraudulently secured the transfer of part of the disputed land to himself, and that the appellant had also contravened court orders relating to the land. It is true that these issues affected the 1st respondent directly, but it cannot be ignored that they were subject of a pending litigation. Although it was argued that the reference to the land case was not sub judice as the court was not being invited in the constitutional matter to address matters that were substantially in issue in the land case that was precisely what the Cabinet Secretary was being asked to do in order to determine the appellant’s integrity. It is evident that the 1st respondent was motivated by his personal dispute with the appellant. His main concern was not the appointment of the Chairman of Athi Water Service Board, or the protection of the Constitution, but the appellants alleged actions, which as the trial judge observes affected him. In this regard the 1st respondent was trying to gain an unfair advantage in his pending litigation, by urging the court to give substance to his allegations on the appellant’s want of integrity, while the matters were still pending before another court. We find that had the learned Judge properly interrogated the circumstances and background to the 1st respondent’s petition as reflected in the supporting affidavit, he would have found that the petition was not one where the 1st respondent was motivated by a wish to vindicate justice or protect the Constitution, but an oblique attempt to gain mileage in the pending dispute between him and the appellant. As the 1st respondent purported to bring his petition in public interest, and it being apparent that his action was not brought in a bona fide attempt to protect public interest he lacked locus standi and therefore the learned Judge ought to have rejected the petition on this ground.

The court of appeal therefore performed the sieving test, it sieved the matters before it and determined that the petitioner was not seeking to enforce the constitution but was rather hell bent in acquiring an advantage over the appellant, to the court of appeal, the question was not whether the constitutional provisions and requirements had been followed, that did not matter, what mattered was whether the petitioner had any other issue pending against the appellant. This approach by the court of appeal not only shocks but also leaves one wondering, in this case the petitioner was not asking the court to declare the appellant as incompetent to hold office , neither was the court being asked to determine the integrity of the appellant, the court was only being asked to enforce the constitutional provisions, to determine on whether or not the process in appointing public officials was followed as required by the constitution, the high court had clearly recognized this fact and held as follows:

As I understand it, the petitioner’s case in this matter is not that the Court should find the Interested Party unsuitable to serve as the Chairman of the Athi Water Services Board. Rather, his claim is directed at the 1st respondent: that in exercise of powers under the Water Act 2002, the Cabinet Secretary failed to consider the provisions of the Constitution and therefore appointed a person who fell short of the constitutional criteria, and the appointment should therefore be declared null and void. In considering this issue it must be borne in mind that the Court is not making any judgment one way or another in regard to the character, integrity or suitability of the interested party. What the Court is concerns with is whether the 1st respondent in appointing him chairman took into consideration what she was required to take into account by the Constitution  [Emphasis added]

By the mention of their pending case, the petitioner was not seeking to argue the case before a different court, the petitioner was contending that the Constitution has been contravened by the minister through the appointment of the Interested Party who does not meet the leadership and integrity criteria set out in Chapter 6 of the Constitution. The petitioner was only challenging the constitutionality of the appointment of the appellant, both as a citizen in the public interest, but also as one who alleges to have been personally affected by the acts of the appellant whom he alleges lacks integrity. Was it therefore the court’s suggestion that if one who was personally affected by the acts of the appellant could not bring a petition to enforce the constitution despite the fact that the matter was of public interest? It is clear that the court of appeal was adopting a closed door approach. Kirby, once urged judges to replace the closed doors with screen doors which have the potential of keeping out the pests while allowing the genuine litigants with arguable causes which invoke the rule of law and who wish to engage and influence the legal process. The Githinji led bench concentrated on locking out a genuine litigant, replacing the screen doors with a closed door

THE 2010 CONSTITUTION AND LOCUS STANDI: A BAPTISAL OF THE OLD REGIME

Speak up for those who cannot speak for themselves, for the rights of all who are destitute,

Speak up and judge fairly; defend the rights of the poor and needy.”

Proverbs 31: 8-9

The locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice. This enlargement was recognized by the High Court in Mining Temoi & Another Vs. Governor of County Of Bungoma & 17 Others, while construing Articles 22 and 258, the court stated that:

I am of the view that Article 22(1) and (2) of the Constitution has expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. A literal interpretation of Articles 22 and 258 in my view confers upon any person the right to bring action in more than two instances firstly in the public interest, and secondly, where breach of the Constitution is threatened in relation to a right or fundamental freedom. Where one purports to enforce the rights of another, it is in my view that there must be a nexus between the parties. In this case, Mr. Khaoya has described himself as the “CEO/CO-ORDINATOR” of the organization and the Petition is about the alleged violation of the Constitution, Mr. Khaoya has in my view illustrated that there is a nexus between him and the organization.”

Similarly, the high court expressed itself in Ms. Priscilla Nyokabi Kanyuain which the Court expressed itself as follows:

A new dawn was ushered in and the dominion of Private Law and its restrictive approach was dealt a final blow. A new window of opportunity emerged in the area of Public Law and shackles of inhibition in the name of locus standi were broken and the law was liberalised and a purposeful approach took the driving seat in the area of Public Law.

Article 22 and 258 of the constitution have thus created a new window of opportunity, they have broken the shackles of inhibition manifesting themselves in the name of locus standi, they have baptized the old regime. The intent of Articles 22 is that persons should have ‘free and unhindered access to this court for the enforcement of their fundamental rights and freedoms’, whereas Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened. Article 258 relaxes the issue of standing and opens the doors of the courts very wide to welcome ‘any person who has bona fide grounds that the Constitution has been or is threatened with contravention to approach the Court for an appropriate relief ‘ In FIDA-K Justices Mwera, Warsame, and Mwilu echoed this position, they held that

We have already noted that anybody has a right to bring a Petition challenging the constitutionality of an action, The fact that the person who was appointed does not meet the constitutional threshold will not change merely because the person who brings the matter to Court did not raise it during the selection process, and the Court cannot shy away from making such a determination if sufficient evidence is presented before it.[Emphasis added]

The Supreme Court expressed itself in in Mumo Matemu in the following terms;

In this particular case, which involves public-interest litigation, we take cognizance of the history of locus standi in Kenya. Locus standi had operated, in the earlier constitutional dispensation, to limit the scope for litigants to pursue causes in the public interest. Articles 22 and 258 of the current Constitution opened the doors for such litigants to lodge causes on constitutional matters.

NJOKI NDUNGU, in her concurring opinion links locus standi to the right of access to justice, and argues that procedural technicalities act as inhibitions to the right of access to justice, she further held that the constitution has enlarged the capacity to file a claim in defence of the constitution and this lays the basis for rights and constitutional enforcement. The distinguished Judge concludes by accepting that in constitutional adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim.

The court of appeal had also expressed itself on the matter by holding that the constitution creates a broader context and in this broader context, ‘this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution…..”

THE ROLE OF THE COURTS IN ENFORCING THE CONSTITUTION; TECHNICALITIES OR SUBSTANCE?

Article 3(1) of the Constitution imposes an obligation on every person to respect, uphold and defend the Constitution. The invitation to approach the Court for redress as long as the person holds bona fide grounds for believing that the Constitution is under threat ought to be welcome. When the court opts to close the doors of the court to a petitioner who is complaining of a public body’s unlawful or unconstitutional action, this will only mean giving the government and public officials a free hand to act without fear of judicial review. This will only result in one scenario, the creation of a “dead norm”, in which the constitution exists but the government is free to violate it without the possibility of a judicial review. In Ferreira v Levin, O’Regan J described the courts’ “new” role in a constitutional democracy as follows:

This role requires that access to courts in constitutional matters should not be precluded by rules of standing developed in a different constitutional environment in which a different model of adjudication predominated. In particular, it is important that it is not only those with vested interests who should be afforded standing in constitutional challenges, where remedies may have a wide impact.

De Ville has explained this role in Judicial Review of Administrative Action in South Africa: at 400, in the following words:

As the arm of government which is entrusted primarily with the interpretation and enforcement of constitutional rights … [the courts carry] a particular democratic responsibility to ensure that those rights are honoured in our society. This role requires that access to the courts in constitutional matters should not be precluded by rules of standing developed in a different constitutional environment in which a different model of adjudication predominated. In particular, it is important that it is not only those with vested interests who should be afforded standing in constitutional challenges, where remedies may have a wide impact.’

There is a new duty on the courts to develop standing in a constitutional context in an ‘incremental fashion’. This requires a “radical and deliberate departure from common law” rules on standing, in line with the Constitution.Edwin Cameron J held that the new duty requires the judges to be hesitant to dispose of cases on standing alone where matters of accountability are raised, he held thus

To this observation one must add that the interests of justice under the Constitution may require courts to be hesitant to dispose of cases on standing alone where broader concerns of accountability and responsiveness may require investigation and determination of the merits. By corollary, there may be cases where the interests of justice or the public interest might compel a court to scrutinize action even where the applicant’s standing is questionable. When the public interest cries out for relief, an applicant should not fail merely for acting in his or her own interest.

There is a higher need for the procedural technicalities to give way to substantive matters, a court should not at its first thought be to throw away a litigant, this would be denying the litigant who is acting on the public interest access to justice, the new role of the court is not that of a disinterested and dispassionate adjudicator but it is now an active participant in the dispensation of justice requiring the judges to do away with the shackles of inhibition. In Guruvayur Devaswom Managing Committee and Anr. V/s C.K. Rajan and Ors , Supreme Court of India held that ‘Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights… The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice.’

In A.G. of Dendel State v. A.G. of Nigeria, Obaseki, J.S.C, held that :

The constitution has opened the gates to the courts by its provisions and there can be no justifiable reasons for closing the gates against those who do not want to be governed by a law enacted NOT in accordance with the provisions of the constitution.

The courts therefore play an active role under the Constitution. Judges should not sit not in an ‘ivory tower like an Olympian closing their eyes uncaring for the problems faced by the society’, uncaring about the illegalities committed by the government, they have to enforce the constitution. In order to achieve this mission, judicial powers have to be exercised with courage, creativity and circumstances complemented by vision, vigilance and practical wisdom.Locking out a petitioner like the Githinji led bench does not expose any courage, there is no vision in it, neither was there a practical wisdom. They infact sat at the ivory tower and closed their eyes to the unconstitutionality of the appointment of the appellant.

Even in pre-2010 dispensation, the high court accepted its new role in a constitutional democracy, that it is not to be inhibited by the procedural trappings in law suits challenging the constitutionality of an Act of parliament or decisions of the executive and ‘that the technical objections should not bar the jurisdiction of the court or let justice bleed at the altar of technicality.’

Rukangira J of the High court of Tanzania (as he then was) in Reverend Christopher Mtikila , provided the following analogy,

By reason of limited resources the vast majority of our people cannot afford to engage lawyers even where they were aware of the infringement of their rights and the perversion of the Constitution. Other factors could be listed but perhaps the most painful of all is that over the years since independence Tanzanians have developed a culture of apathy and silence. This, in large measure, is a product of institutionalized mono-party politics which in its repressive dimension, like detention without trial, supped up initiative and guts. The people found contentment in being receivers without being seekers. Given all these and other circumstances, if there should spring up a public-spirited individual and seek the Court`s intervention against legislation or actions that pervert the Constitution, the Court, as guardian and trustee of the Constitution and what it stands for, is under an obligation to rise up to the occasion and grant him standing. The present petitioner is such an individual

It is clear that the Githinji led bench was of the opinion that the culture of apathy and silence should continue and the citizens of Kenya should only be receivers and not seekers, In Thorson v. A.G. of Canada, 1 SCR 138, a taxpayer was allowed by a majority to challenge the constitutionality of the Official Languages Act. Laskin, J., speaking for the majority, contemplated “. . . . . . . whether a question of constitutionality should be immunised from judicial review by denying standing to anyone to challenge the impugned statute.” The Githinji led bench was not only prepared to allow the constitutionality of the appointment of the appellant to be immunized from judicial review but it also drove deep the nails of insulation and immunization while relying on procedural technicalities. In v Inland Revenue Commissioners ex parte National Federation of Self‐Employed And Small Businesses, Lord Diplock said that there would be a grave lacuna in public law if “outdated technical rules of locus standi” prevented a person bringing executive illegality to the attention of the courts.

The new role of the courts requires them to overlook these technicalities( issue of standing included) ,The dictum of Hench J. in Cahill v Sutton is worth mentioning here, he said, “there will be cases where the want of normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if in the circumstances of the case there is a transcendent need to assert against statute the constitutional provision that has been invoked.” A petitioner challenging the constitutionality of an appointment into a public office is such a scenario.

The court’s first role ought to be to uphold constitutionalism and the sanctity of the constitution. How can this role be well performed by shutting the door of the court on the face of a person who seek to uphold the constitution on the ground that such a person has another pending matter and should therefore not enforce a matter which belongs to all? A party who wants to challenge illegality, unreasonableness, arbitrariness, irrationality and abuse of power ought to be given a hearing by a court of law. This approach in effect is to mean that the requirements for legal standing should be less stringent in the area of public law as opposed to private law disputes.

Whereas judges are said to be ‘no longer judicial robots, mechanically deciding cases and dismissing them on technical grounds’, the Hon Githinji led bench have refused to stop being robots, they find pleasure in being judicial robots, they find their joy in dismissing cases on technical grounds. Truly, B.L Fadio was right when he noted that every judge is an activist, either on the forward gear or on the reverse, the Hon Justcie Erastus Githinji can only fit in the latter. It showed the court’s connivance or helpless in enforcing the constitution and upholding the rule of law.

Conclusion

In the words of Judge Bhagwati, one of the strong pillars in the development of public interest litigation or social impact litigation in India, he asked the following questions

[t]he judges in India have asked themselves the question: Can judges really escape addressing themselves to substantial questions of social justice? Can they … simply follow the legal text when they are aware that their actions will perpetuate inequality and injustice? Can they restrict their inquiry into law and life within the narrow confines of a narrowly defined rule of law?

If judge Bhagwati was to wake up today and get into AIR INDIA AIRLINES, and travel down to Kenya, upon landing at the Jomo Kenyatta international Airport, he will surely get answers to the questions that he asked, it will not take him long to recognize the floating presence of Hon Erastus Githinji led bench, a bench that was prepared to let justice bleed at the altar of technicality. Where courts are to “search for light among the social elements of every kind that are the living force behind the facts they deal with. The Hon Githinji led bench has specialized in infusing darkness into any social elements that appear before them. They emphasize on upholding the old rules rather than crafting new innovations, they have equally forgotten that “There is not a creed which is not shaken, not an accredited dogma which is not shown to be questionable, not a received tradition which does not threaten to dissolve.”

Their notion of their duty confirms what Cardozo described some judges, that their notion of duty is that of ‘colour-fixing’, that;

Their notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly.

Cardozo J of the United States, in his much-quoted treatise The Nature of the Judicial Process, stated that:

There is an old legend that on one occasion God prayed, and his prayer was “Be it my will that my justice be ruled by mercy”. That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with the lure of scientific order. I do not mean, of course, that the judges are commissioned to set aside existing rules at pleasure in favour of any other set of rules which they may hold to be expedient or wise. I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.

Ssekaana Musa, has argued that when confronted by a constitutional petition, the courts are to ask themselves ‘whether it can be right, as a matter of principle for a person with an otherwise meritorious challenge to the validity of government’s action to be turned away by the court on the ground that his rights or interests are not sufficiently affected by the impugned decision?’ and further that ‘it follows that whenever someone is thus excluded by reason of locus standi, the law regards it as preferable that an illegality should continue as that the person excluded should have access to courts’. He concludes by noting the resultant effects of such actions thus;

The undesirability of putting certain actions beyond legal challenge by anyone is self-evident. The politically, financially or socially strong can oppress the weak: safe in the knowledge that courts cannot interfere. This is undesirable not only because oppression is undesirable but also because if the law is openly flouted without redress in the courts of law, justice is brought into contempt as being a dream without substance.

The court is therefore expected to stamp its constitutional imprimatur , to adopt a broad and liberal interpretation of the issue of standing and not to turn away petitioners especially where issues of constitutional violations are raised but to expand the rules of standing