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The Judiciary in Sensitive Areas of Public Law: Emerging Approaches to Human Rights Litigation in Kenya

Published online by Cambridge University Press:  21 May 2009

J.B. Ojwang  and
J.A. Otieno-Odek
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Extract

Restrictions imposed by domestic law do not excuse a State from due performance of international legal obligations. Either in observance of this principle, or as a sheer coincidence, most States have a framework of domestic legislation that, to varying degrees, would facilitate compliance with international legal obligations. But, as Wallace observes, ‘there is no universal practice stipulating how States should incorporate international law into their domestic legal systems and it is a State's perception of international law which determines the way in which international law becomes part of municipal law’.

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Articles
Information
Netherlands International Law Review , Volume 35 , Issue 1 , May 1988 , pp. 29 - 52
Copyright
Copyright © T.M.C. Asser Press 1988

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References

1. Alabama Claims Arbitration, Moore I Int. Arb. 495 (1872); Exchange of Greek and Turkish Populations Case, PCIJ Rep. ser. B, No. 10 (1925) p. 6 at p. 20Google Scholar; Free Zones of Upper Savoy and Gex, PCIJ Rep. ser. A/B, No. 46 (1932)Google Scholar.

2. This is illustrated, for instance, by the existence of the monistic school, which takes the view that municipal law and international law form one continuum, and the dualistic school that treats the two regimes of law as independent and mutually exclusive: Wallace, R.M.M., International Law (1986) pp. 31–33Google Scholar.

3. Ibid., p. 31.

4. Okunda v. Republic [1970] E.A. 453; East African Community v. Republic [1970] E.A. 457; Isabirye, D.M., ‘The Status of Treaties in Kenya’, 20 Indian JIL (1980) pp. 63–82Google Scholar.

5. United Nations Charter, in particular Arts. 1, 13, 52, 55, 56, 60, 68, 70, 71, 76.

6. Kenya acceded to the International Covenant on Civil and Political Rights on 1 May, 1972.

7. Act No. 5 of 1969.

8. To date, 22 amendments in all have been effected, 10 of them taking place between 1963 and 1968, and 12 taking place between 1969 and 1986. For a discussion of these amendments, see Mudavadi, J., Rigid and Flexible Constitutions: A Consideration of Theory in the Light of the Kenyan Experience, an LL.B. Dissertation, University of Nairobi (1987)Google Scholar.

9. S.71.

10. S.72.

11. S.73.

12. S.74.

13. S.75.

14. S.76.

15. S.77.

16. S.78.

17. S.79.

18. S.80.

19. S.81.

20. S.82 [M. De Merieux in her article ‘Setting the Limits of Fundamental Rights and Freedoms in the Commonwealth Carribean’, 7 Legal Studies (1987) p. 39 nCrossRefGoogle Scholar, suggests (and we are in agreement) that ‘It appears that the notion of “right” is to include whatever may be encompassed in a “freedom”.’] [It is to be noted that while the provisions reflect central aspects of the various international instruments, they make no specific reference to certain rights which are provided for in international law – e.g., the right to marry and found a family; the right to periodic elections to political office; freedom from sexual discrimination; the right to work; the right to education; the right to leisure; the right to a decent standard of living. Reference to some of these is to be found only in policy documents of the Government].

21. Dworkin, R., Taking Rights Seriously (1977) pp. 132–133Google Scholar.

22. Murphy, W.F., ‘An Ordering of Constitutional Values’, 53 Southern California LR (1980) p. 703 at p. 758Google Scholar.

23. Benn, S.I., ‘Human Rights — For Whom and for What?’, in Kamenka, E. and Tay, A.E.-S., Human Rights (1978) p. 59Google Scholar.

24. Constitution s.84.

25. Ibid., s.62.

26. See, e.g., Ndulo, M. and Turner, K., eds., Civil Liberties Cases in Zambia (1984)Google Scholar.

27. Such statutes are made, amended or repealed under the most easily attainable condition: the barest majority out of the nominal quorum of 30 parliamentarians attending session. By contrast, it takes some two-thirds of the entire membership of the National Assembly to amend the Constitution (s.47).

28. Constitution s.72.

29. Crim. App. No. 663 of 1984 – High Court of Kenya at Nairobi (unrep.).

30. Cap. 58.

31. Cf., Kuria, G.K. and Ojwang, J.B., ‘Judges and the Rule of Law in the Framework of Politics: The Kenya Case’, Public Law (1979) p. 254, at pp. 270–272Google Scholar .

32. [1932] E.A. 153.

33. [1932] 2 K.B. 497.

34. In the earlier case of The Queen v. Jackson [1891] 1 Q.B. 671, it had been held that where a wife refuses to live with her husband, he is not entitled to keep her in confinement in order to enforce restitution of conjugal rights. [These English decisions apply in Kenya by virtue of the reception clause in the Judicature Act (Cap. 8), s.3].

35. [1973] E.A. 153, at p. 161.

36. Ibid.

37. [1966] I All ER. 633 (PC).

38. Ibid., p. 643.

39. Nairobi High Court Crim. App. No. 128 of 1983 (unrep.).

40. In a similar vein is Rupert Nderitu v. Attorney-General, Daily Nation (Nairobi), 21 November 1985, in which nolle prosequi had been entered after a charge had been laid — for the reason that the file disappeared from the magistrate's court. Subsequently, a new charge sheet was prepared and a fresh trial started. The accused appealed to the High Court on the ground of inhuman and degrading treatment. It was held that the Attorney-General has power to institute criminal proceedings against any person, before any court, or discontinue pending proceedings at any time; and all this contained no element of inhuman treatment.

41. Felix Njagi Marete v. Republic, Kenya Times (Nairobi), 30 04 1987Google Scholar.

42. Constitution s.78 (5).

43. [1976] K.L.R. 112.

44. Cf., Ex p. Nasreen, n. 35 supra, where the Kadhi's edict, given within the framework of Islamic law, was declared void for being in conflict with the applicable common law relating to the liberty of the wife vis-à-vis the demands of the husband.

45. Nairobi High Court Civ. Cas. No. 556 of 1981 (unrep.).

46. [1969] E.A. 451.

47. Cap. 56.

48. Constitution s.81(3).

49. [1973] E.A. 297.

50. Ibid., at pp. 303–304 (emphasis added). This case is authority for the entire line of cases involving the freedom of assembly and association, and with regard to trade unions. See, e.g., Odiago v. Registrar of Societies, Nairobi Civ. App. No. 27 of 1961 (unrep.); Alukwe v. Registrar of Trade Unions, Nairobi Civ. App. No. 26 of 1977 (unrep.); Tera Aduda v. Registrar of Trade Unions [1978] K.L.R. 119.

51. Penal Code (Cap. 63), ss. 56, 57.

52. Daily Nation (Nairobi), October 27, 1982 (unrep-Senior Res. Magistrates Court). The accused subsequently challenged the prison officer's failure to allow him the normal one-third remission of the prison term, and won: High Court Civ. Cas. No. 1423 of 1986; Civ. App. (Court of Appeal) No. 152 of 1986.

53. The same line of judicial approach has been followed consistently ever since the colonial period when constitutional guarantees had not been in existence: see, e.g., R v. Lawrence Oguda [1960] E.A. 749; Andrew Mungai Muthemba v. Republic, Nairobi High Court Crim. Cas. No. 25 of 1981 (unrep.); D.P.P. v. Obi [1961] All N.L.R. 187; Wallace-Johnson v. R [1940] A.C. 231 (Privy Council Case from the Gold Coast (now Ghana)).

54. [1969] E.A. 347.

55. Cap. 113.

56. Nairobi High Court Civ. Cas. No. 1189 of 1979.

57. Cap. 104.

58. Cap. 105.

59. See Ghai, Y.P. and McAuslan, J.P.W.B., Public Law and Political Change in Kenya (1970) p. 418Google Scholar.

60. [1958] I W.L.R. 546 (PC).

61. [1969] E.A. 433 (CA).

62. Muhi v. Republic Nairobi High Court Crim. App. No. 100 of 1985 (unrep.).

63. Ahmed Ali Dharansi v. R [1964] E.A. 481; Muhi v. Republic, n. 62, supra.

64. Nairobi High Court Civ. Cas. No. 271 of 1986 (unrep.).

65. Stanley Munga Githunguri v. Republic, Nairobi High Court Crim. App. No. 271 of 1985 (unrep.).

66. The Civil Procedure Act (Cap. 5); the Criminal Procedure Code (Cap. 75).

67. Cap. 57.

68. High Court Civ. Cas. No. 1159 of 1966 (unrep.).

69. Public Security (Detained and Restricted Persons) Regulations, L.N. No. 212 of 1966.

70. Now s.83(2)(a).

71. Cf., the Indian case, Ram Krishnan v. Delhi (1953) A.I.R. 318, where the Supreme Court of India ordered the release of a detainee due to the insufficiency of the reasons given for the detention.

72. Emphasis added.

73. Daily Nation (Nairobi), 7 March 1986.

74. Emphasis added. [In the same vein, in Mirugi Kariuki v. Attorney-General, Daily Nation (Nairobi), 24 12 1986Google Scholar, the High Court stated that ‘the Minister's order detaining Mr. Kariuki was proper and clear, and there was no question of improper detention’ (emphasis added). In Isaiah Ngotho Kariuki v. Attorney-General, Daily Nation (Nairobi), 3 02 1983Google Scholar, the High Court accepted the submission that the mere production of a detention order prevented the court from proceeding with an application for habeas corpus ad subjiciendum, as the order was by itself a sufficient reason for not producing the detainee. The effect, it seems, is that the court is making the assumption that the detention is lawful, once the proper instruments are produced, and it is for him who alleges unlawfulness to prove his case.].

75. Noted in 10 Commonwealth Law Bulletin, no. 3 (1984) pp. 1108–1109Google Scholar.

76. [1958] A.A. 536.

77. [1965] E.A. 370.

78. Madhwa v. City Council of Nairobi [1968] E.A. 406; Fernandes v. Kericho Liquor Licensing Court [1968] E.A. 640; Muhuri v. Attorney-General, Crown Case No. 1021 of 1964 (unrep.).

79. It is to be noted that sex is not envisaged as one of the spheres of possible discriminatory laws.

80. [1968] E.A. 640.

81. [1968] E.A. 406.

82. See also, Shah Vershi Devshi v. Transport Licensing Board [1971] E.A. 289.

83. [1968] E.A. 637.

84. Cap. 2 of 1948.

85. [1968] E.A. 637 at p. 639.

86. I Cranch 137 (1803).

87. Act No. 8 of 1968.

88. S.84(2)(a) and (b).

89. S.67.

90. The Standard (Nairobi), 18 October 1979.

91. Newbold, C., ‘The Role of a Judge as a Policy Maker’, 2 Eastern Africa LR (1969) p. 127 at p. 131Google Scholar.

92. Dugard, J., ‘Judges, Academics and Unjust Laws’, South African LJ (1972) p. 277Google Scholar.

93. 8–9 Malaya LR (1966–1967) p. 283.

94. [1962] 1 All N.L.R. 324.

95. See also, Gopalan v. State of Madras 1950 S.C.J. 174 (1972); Liversidge v. Anderson [1941] 3 All ER.338.