Guest Post: The Supreme Court’s Tribunals Judgment – I

[This is a guest post by Shubhansh Thakur.]


In a judgement dated 14 July 2021, the Supreme Court (“SC”) in Madras Bar Association v. Union of India struck down certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021(“Ordinance”) by a majority of 2:1. Nageshwar Rao, J, authored the leading opinion to which Justice R. Bhat expressed his concurrence in a separate opinion. On the other hand, Justice Hemant Gupta authored his partially dissenting opinion.

The petition was filed by the Madras Bar Association (“MBA”) under Article 32; however, the grounds of challenge were not restricted to Fundamental Rights under Part III, giving rise to the issue of maintainability (Maintainability Issue). Among other grounds, the Ordinance was argued to violate the Constitution’s basic features such as Independence of judiciary and separation of powers. Additionally, the Ordinance was also attacked on the ground of violating the previous directions of the court relating to tribunal appointment and conditions of service.

Initially, the author will lay down the background of the dispute as it played a pivotal role in shaping the court’s decision. In this part, the author will analyse the maintainability issue while leaving other challenges for the next part.

THE CHEQUERED HISTORY

As highlighted, since one of the grounds of challenge was concerning previous court directions, it is pertinent to take note of those directions and analyse them to the limited extent of their relevance to the case at hand.

MBA-I

Several provisions of the erstwhile Companies Act relating to the formation of tribunals were assailed before the Madras High Court (“HC”) in MBA-I. The challenges were ultimately carried forward in appeal before the SC. The SC upheld the power of Parliament to transfer judicial functions from the courts to the tribunals. However, it declared Part I-C and I-D of the impugned Act unconstitutional and issued directions for making certain amendments before the provisions could be brought into force. Interestingly, the Union of India (UOI) agreed to make suitable changes before the HC, leading the SC to direct:

“However, Parts I-B and I-C of the Act, may be made operational by making suitable amendments, as indicated above, in addition to what the Union Government has already agreed to in pursuance of the impugned order of the High Court.”

The use of the words like “may be made operational” and “as indicated” leads us to believe that the SC merely issued some directory guidelines for the UOI to cure the defects. However, there is nothing to indicate that the court envisaged them as binding before fresh legislation is brought. Interestingly, the UOI had also agreed to make specific changes in the Companies Act. The effect of this agreement will be analysed while dealing with the subsequent challenges; however, for the time being, it is sufficient to point out that such consent should not bind or estop the government.

Among various other directions, it was provided that the tenure of the members to be appointed should be increased from three years to five or seven years, along with reappointment if deemed appropriate by the committee responsible for recommending the names to the scheduled tribunals. With the retirement age of 65 years, the SC believed that such a short tenure of three years was tailored to make these tribunals a retirement haven for HC judges who retire at the age of 62 years. However, considerably longer time would be required for legal practitioners before they could acquire expertise in dispute adjudication, and three years’ tenure would prove insufficient.

The SC also pointed out that the competence of the person to be appointed is different from suitability. For suitability, experience, maturity, and status are required in addition to experience for the post.

MBA-II

The Companies Act, 2013, replaced the erstwhile Companies Act of 1956, which came to be challenged in MBA-II. However, several of the provisions that were declared unconstitutional were either copied verbatim or, in essence, in the new Act. It is unnecessary to deal with the issues separately apart from noticing that the court struck down several provisions because they were copied verbatim in the new Act without substantial changes. Additionally, the court was motivated by concerns around the independence of the judiciary in striking down the sections, but not solely on the ground that the sections failed to comply with its previous directions (See ¶27,28,30,31.3, 33). The fact of the matter is that the statutory enactment failed to remove the defect mentioned and further undermined the independence of the judiciary and separation of powers.

Interestingly, section 413 of the same Act, which provided that a person who has not completed 50 years was ineligible for appointment in the tribunals under the Companies Act, remained unchallenged as it stood.

Rojer Mathew

After that, in Rojer Mathew v. South India Bank, among several other challenges, the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017 were assailed by the petitioner. The rules were struck down in their entirety, as they took away the judicial control in tribunal appointments and compromised the independence of tribunals. One rule provided for different ages of superannuation for chairman, vice-chairman, and members. This rule was struck down as violative of the parent Act, which sought uniformity in the tribunal appointment (¶175.2).

The rule prescribing a uniform tenure of appointment for the advocates elevated as members of the tribunals and retired HC or SC judges was also struck down because it sought to create equality among the unequal (¶175.1). It was also held that the short tenure of three years would deter practicing advocates from accepting the appointment in tribunals, as they would have to give up their practice for a meagre tenure of three years. It led the court to direct that tenure of five to seven years must be considered with a chance of reappointment. (¶172). It was also reiterated that MBA-I recommended a more extended period for appointment based on these principles. After the rules were struck in their entirety, the following interim relief was granted:

“We, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017. However, liberty is granted to the Union of India to seek modification of this order after they have framed fresh rules in accordance with the majority judgment. However, in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new Members.

It is clear from the reading of the above direction that the court never intended these interim directions to attain finality; instead, they merely wanted the interim directions to continue as long as there is inaction on the part of UOI and to keep the tribunals operational. The court merely fettered the power for withdrawing the financial benefits and nothing more.

MBA-III

The rules were subsequently reframed and were assailed in MBA v. UOI (“MBA-III”). The rules excluded advocates from being considered as Judicial Members to certain tribunals, while for others, advocates having a minimum experience of 25 years were made eligible. The Attorney General, in his submissions, assured the bench that the advocates would be made eligible for all the tribunals provided they had the experience of 25 years at the bar (¶39). The SC, however, held that the experience at the bar should be nearly equivalent to that required for an HC judge, i.e., ten years. Thus, the rule was directed to be amended to make younger advocates eligible for appointments. It was held (without reference to authority) that “A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.” The argument seems to be ex-facie erroneous because a more experienced candidate is always valued more. In any case, the state cannot ensure that every person appointed as a member of the judiciary must have employment for a lifetime.

The rules regarding appointment and condition of tenure similar to the one provided for in the present Ordinance’s Sec.184(11) were also given the retrospective effect. The court held that the subordinate legislation could not be given retrospective effect as the parent statute did not authorise such retrospective application. Due to this, the following interim direction was issued:

“According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment”

In essence, the interim order of Rojer Mathew merged with the MBA-III with some clarification. In this context, it is essential to note that this case was unique where there was a dialogue between the bench and Attorney General(AG), where he agreed to make changes in the rules as per the court’s directions. (See ¶41,47)

Before moving ahead, the author wants to highlight certain aspects that emerge out of the reading of the judgments, which will be used subsequently in the analysis: in MBA-I and MBA-II, the UOI defended legislation, which requires the assent of the Houses of Parliament and of the President. However, In Rojer Mathew and MBA-III, the UOI acted in its executive authority, as it was defending the rules that it framed udnder the authority of the parent Act.

ANALYSIS

Regarding maintainability, Rao J and Gupta J do not seem to add much apart from holding that a statute can be challenged to violate the separation of powers and independence of the judiciary, which flow as a necessary concomitant of the rule of law. This concept emerges out of equality and Article 14. It is submitted that such observations seem to depict a rather vague and subjective approach where every and any violation can be related to the rule of law and equality clause to invoke the writ jurisdiction. If such an approach is taken to be the standard for admitting a writ petition under Article 32, then even a statutorily imposed duty’s violation would equally breach the rule of law, and the court must not hesitate to admit such a petition. The postulates of separation of power and independence of the judiciary have various constituents spreading across the entire Constitution. The court should only interfere in a matter under Article 32 when one of these constituents either flows directly from or is intrinsically connected to the text of Part III.

There is a specific power conferred to the Parliament to enlarge the SC’s jurisdiction (Art.138) and issue writs for purposes other than those mentioned in Article 32(Art. 139). Here the negative Act of the Parliament abstaining from making the law also results in the exercise of that power intended to keep the jurisdiction of the SC restricted. It is thus difficult to discern how the SC has taken itself to adjudicate such disputes that are loosely connected to rights under Part III or instead interpreted in such a manner to relate them to rights under Part III in the guise of acting as the protector of the Constitution. The court must attempt to develop a test that brings in more objectivity and uniformity in the entire process of admission of the writ petition.

When the reason to interfere is not intrinsically and closely connected to part-III rights, the SC must attempt to refrain from admitting the petition. Instead, it should grant the liberty to approach the HC under Article 226, which enjoys a similar status as SC, i.e., acting as a Constitutional court, but with a wider jurisdiction.

Justice Bhat’s judgment fills the gaps in the reasoning of Rao J, and Gupta J in the development of a viable test. At first, he seems to avoid the issue of maintainability, observing that:

“It is therefore, too late in the day to contend that infringement by a statute, of the concept of independence of the judiciary – a basic or essential feature of the constitution, which is manifested in its diverse provisions, cannot be attacked, as it is not evident in a specific Article of the Constitution.”

However, he later goes on to depict a close and intrinsic relationship between the provisions of the Ordinance and the right to approach the SC under Article 32, when he observes:

“Therefore, it is the “equal protection” of laws, guaranteed to all persons, through institutions that assure the same competence of its personnel, the same fair procedure, and the same independence of adjudicators as is available in existing courts, that stands directly implicated. Consequently, when this court scrutinizes any law or measure dealing with a new adjudicatory mechanism, it is through the equal protection of law clause under Article 14 of the Constitution.”

The reasoning reflects a viable test to confer jurisdiction. It is settled that the Parliament has the power to transfer disputes from courts to the tribunals. This exercise will have to carry forward the same standards as would have been available with the traditional set-up. In other words, the forum for adjudication may be made different by the Parliament, but similar protections pertaining to independence and impartiality, as were available in the traditional set-up, should be equally provided. This test shows how Article 14 is relevant to testing other articles of the Constitution relating to the appointment, independence of courts sought to be replaced or supplemented by the tribunals.

The next part will deal with and analyse the substantive challenges to the Ordinance in the context of the previous directions of the courts, as mentioned in this part.

Guest Post: Revisiting the CAA in Light of the May 28 Notification

[This is a guest post by Moosa Izzat.]


On May 28, 2021, the Central Government issued a notification authorizing the local governmental bodies of various districts to entertain applications for citizenship from a specific category of persons. This category comprised of people fitting two requirements: first, they ought to have entered India from Afghanistan, Pakistan, or Bangladesh; and second, they ought to have been Hindu, Sikh, Buddhist, Jain, Parsi, or Christian by religion. This category of persons was conspicuously similar to that which was singled out by the controversial Citizenship Amendment Act, 2019 (‘CAA’). In fact, the categorization was identical barring the cut-off date for entry, i.e., December 31, 2014, laid down in the CAA.

In spite of the similarities between the categories of people targeted, the Central Government has insisted that the two legal instrument were unrelated. However, no public clarification as to how the May 28 Notification is distinguishable from, and not pursuant to, the CAA has been given (statements made by unnamed ministry officials reported here and here). The basis of distinction must, therefore, be inferred from a comparison of the two instruments and statements made by unnamed ‘ministry sources’ to major news agencies.

The May 28 Notification instructed the concerned authorities to exercise their powers to grant to the specified category of persons certificates of registration or naturalisation, whichever may be applicable. Registration and naturalisation are the two primary modes of wilful acquisition of citizenship provided for by the Citizenship Act, 1955 (‘Citizenship Act’), which are governed by Sections 5 and 6 respectively.

Incidentally, the CAA had inserted Section 6B into the Citizenship Act, which dealt exclusively with the citizenship of the specified category of persons. The provision did not provide an alternate route to citizenship. Instead, it mandated the fulfilment of the requirements laid down under Sections 5 or 6, whichever may be applicable. Additionally, however, the CAA had also amended the Third Schedule of the Citizenship Act, such that the specified category of persons had to complete a shorter minimum period of residence, of 6 years instead of 11, before becoming eligible to apply for naturalisation.

Upon its enactment, massive protests against the CAA had erupted nationwide. Meanwhile, arguably another hurdle to the immediate enforcement of the CAA were the constitutional challenges it faced before the Supreme Court of India. Over a year later, the Supreme Court has not yet passed a judgement on its constitutionality. During this state of limbo, the Central Government twice postponed the enactment of the requisite rules under the CAA. It has thus been the Government’s position that in the absence of the requisite rules, the CAA is not yet in force.

Two bases of distinction

This formed the backdrop for the May 28 Notification. Returning to the central issue, there are two facts that distance the May 28 Notification from the CAA. First, the notification referred to Sections 5 and 6, and not Section 6B, of the Citizenship Act. While the mere reference to Sections 6B would have had no impact on the route to citizenship acquisition, this was the sole indicator in the text of the Notification that demonstrated an intent to follow the provisions of the Citizenship Act as it existed before the enactment of the CAA.

Second, the persons covered by the Notification were required to fulfil the longer period of minimum stay of 11 years laid down in the Citizenship Act as it existed prior to the enactment of the CAA. It must be noted, however, that this second basis of distinction was not indicated by the text of the Notification. Instead, it was stated in the above-mentioned clarifications subsequently made to major news agencies.

***

A third argument to distance the May 28 Notification from the CAA has surfaced which goes as follows: nearly identical notifications were published in 2014 and 2018, years before the enactment of the CAA. This line of argument, however, must be rejected outright. When the legality of all such acts by the Government are questionable, in that they potentially violate Article 14 of the Constitution, the existence of similar notifications in the past do not confirm that the May 28 Notification could exist independently of the CAA. On the contrary, the CAA would ensure, at the very least, that such administrative actions had a firm basis in existing legislation and were not arbitrary uses of administrative authority.

Prior to the enactment of the CAA, that these notifications were in conformity with existing citizenship laws was contestable. This is because the already existing provisions dealing with citizenship acquisition was contingent on the concerned category not falling under the category of illegal immigrants. While the CAA would do away with any ambiguity in this regard, earlier measures had protected the concerned category from such a designation in a round-about way.

On September 27, 2015, two pieces of delegated legislation were issued which partially protected a similar category of persons from designation as illegal immigrants. These were amendments to the Passport (Entry into India) Rules, 1950, and the Foreigners Order, 1948. Rule 3 of the Passport (Entry into India) Rules barred those without valid documentation from entering India while Rule 4 carried a list of exempted persons. The September 27 notification amended Rule 4 such that people belonging to the above-mentioned religions having entered before the specified date from Bangladesh and Pakistan were added to the exempted categories. The entry into India of the concerned category of persons was thus legalised.

Meanwhile, the Order amending the Foreigners Order laid down that the provisions of the Foreigners Act, 1946, would not be applicable to the above-mentioned category. Further, the amending Order mirrored the phrasing used to define illegal immigrants in the Citizenship Act; it referred to those who had entered without valid documents and those who had entered with valid documents but overstayed beyond the period of valid stay.

Read together, the measures on September 27, 2015 protected the concerned category from designation as illegal immigrants in two ways. First, their entry into the country was legalised. Second, the law which could be used to declare them to be illegal immigrants, namely the Foreigners Act, was made not applicable to them.

Yet, for the purposes of the Citizenship Act, there existed no explicit confirmation that the concerned individuals were not ‘illegal immigrants’. Based on the above notification and order, a strong argument undoubtedly existed in favour of the concerned category. By contrast, the CAA, by explicitly exempting the concerned category from designation as ‘illegal immigrants’, made clear what was hitherto ambiguous. Just as importantly, the CAA provided a statutory basis for what would otherwise be an exercise of executive discretion.

Reassessing the CAA’s significance

Upon its enactment, the CAA was criticised for discrimination on religious grounds. It was the first instance where India’s citizenship regime would explicitly favour the followers of certain religions over others. What the above discussion has revealed, however, is that even prior to the enactment of the CAA, the Central Government had, on at least two occasions, singled out people belonging to certain religions and expedited their path to citizenship acquisition.

The primary differentiator was that on the two previous occasions, this was done through notifications and not through an Act of Parliament. They were administrative acts, wherein an existing beneficial legislation was used to grant citizenship to an already eligible category of persons. The provisions dealing with naturalisation and registration are provisions of beneficial legislation in the sense that they allow non-citizen individuals to acquire citizenship and the bundle of rights that come with it. The notifications merely singled out the categories of people who would be immediately granted this bundle of rights. The measures were thus an exercise of executive discretion. The CAA, on the other hand, made certain substantive changes in the law that would be applicable only to the specified category of persons. Foremost of these changes were as follows:

First, it exempted the specified category of persons from being designated as “illegal immigrants” by adding a proviso to Section 2(1)(a) of the Citizenship Act. As citizenship acquisition through naturalisation and registration is barred for illegal immigrants, this appears to be a significant amendment. However, the CAA’s impact in this regard must not be overstated. As discussed above, certain measures had already existed to protect the specified category from designation as illegal immigrants. Therefore, the CAA merely confirmed and made unambiguous the legality of the specified categories’ stay in the country.

Second, the CAA amended the Third Schedule of the Citizenship Act so as to reduce the minimum period of stay required for a person to be eligible to apply for a naturalisation certificate. The cut-off date for entry being December 31, 2014, the reduced period of six years allowed the concerned category of persons to be eligible for citizenship acquisition shortly after the enactment of the CAA. This, it is argued, was the more substantial amendment effected by the CAA. As of June 2021, every individual belonging to the specified category laid down in the CAA is eligible to apply for a certificate of naturalisation. In the absence of the CAA, some belonging to the specified category would have to wait till up to 2025 to become eligible.

But the function of the CAA goes far beyond the specific legal changes listed above. I have attempted to emphasise one of these functions: the provision of an explicit statutory basis for what was hitherto achieved through delegated legislation (2018 and 2021 Notification) which, in turn, relied on other pieces of delegated legislation (September 27 Notification and Order).

Notes From a Foreign Field: Some Thoughts on the Kenyan Court of Appeal Proceedings in the BBI Case

On 13 May 2021, the High Court of Kenya handed down a landmark judgment striking down the “Building Bridges Initiative”, a set of proposed amendments to the Kenyan Constitution, on grounds – inter alia – of violating the Constitution’s basic structure [“the BBI Judgment”]. At the time, I had analysed the judgment in this blog post. The High Court’s judgment was appealed to the Court of Appeal, and argued before a seven-judge bench, over four days, between June 29 and July 2. Judgment has been scheduled for August 20.

The Kenyan constitutional courts are unique in that oral arguments are live-streamed, broadcast live by major television networks, and available on YouTube (with an open comments section!). I was thus able to watch the arguments, which raised a range of fascinating issues, from the distinction between direct and indirect democracy (drawn from the Kenyan Constitution’s very particular amendment provisions), the identity of “the People”, the distinction between top-down and bottom-up constitutionalism, the meaning and purpose of public participation, and so on. Perhaps what made the arguments even more interesting was that, having been enacted in 2010, the Kenyan Constitution is a relatively young document, and not yet bowed down by layers of encrusted precedential sediment. For this reason, counsel on both sides were able to make arguments on first principle, presenting the overlaps between concrete constitutional practice and the philosophy of democratic constitutionalism, in a distilled form that we don’t often get to see.

In this post, I will examine some of the major arguments made over the course of the four-day appeal hearing. Here are the YouTube links, in sequence: Day 1, Session 1 (starts at 58 mins); Day 1, Session 2 (start at 2hrs 17 mins); Day 1, Session 3; Day 2, Session 1; Day 2, Session 2; Day 2, Session 3; Day 3, Session 1 (Respondents open with Nelson Havi at 23 mins); Day 3, Session 2; Day 3, Session 3; Day 4, Session 1; Day 4, Session 2; Day 4, Session 4 (including Appellants’ rejoinder). The first two days of the hearing were occupied by the appellants who were challenging the High Court’s decisions. These included the Attorney-General’s Office, the BBI Secretariat, the Independent Electoral and Boundaries Commission (whose powers – and their alteration – were central to the High Court’s judgment), the Hon. Raila Odinga (the opposition leader), and HE Uhuru Kenyatta, President of Kenya. I will not here examine all the arguments raised; that would be an impossible task, apart from the fact that some of the issues are beyond the scope of a comparativist’s ability to engage with. I will, however, discuss three issues that, in my view, are at the heart of the appeal.

My usual caveat: I am an outsider, and I approach this post with an awareness of my limited knowledge. While I will write as honestly as I can, there is undoubtedly much context that I do not know, and much that I may get wrong; for those trespasses, an apology, in advance.

Issue 1: Who Are The People?

First, Appellants challenged the High Court’s finding that the Kenyan Constitution had a basic structure, which could only be amended through the exercise of a primary Constituent power that – in effect – lay outside the Constitution. Recall that in its judgment, the High Court had not held that the Kenyan Constitution’s basic structure was beyond the power of amendment altogether (thus making the Kenyan basic structure doctrine entirely different from its Indian variant, and indeed, unique in the annals of comparative constitutionalism). Rather – on an analysis of Kenyan constitutional history – the High Court held that in order to amend the basic structure, the conditions around the founding of the 2010 Constitution had to be recreated (primary constituent power). This meant, in concrete terms, a four-step procedure involving civic education, public participation, the convening of a Constituent Assembly, and a referendum.

It was therefore a little surprising to note the amount of time that Appellants spent distinguishing Kesavananda Bharati v State of Kerala, or arguing for its inapplicability to Kenya. As I have mentioned above, the basic structure doctrine of Kesavananda, and the basic structure doctrine of the BBI judgment, are chalk and cheese. In particular, Appellants spent considerable time arguing that Kesavananda was a response to Parliamentary abuse of amending power, while the Kenyan Constitution explicitly envisages a role for the people (via the Popular Initiative method under Article 257) in the amending process. This is correct. But it is also, with respect, irrelevant. The distinction would have made sense if the Kenyan High Court had placed the basic structure out of bounds altogether; however, as we have seen, it did not – arguing only for deeper public participation than is provided in the Kenyan Constitution via the popular initiative method. That argument, however, needs to be tackled on its own terms, and not with reference to Kesavananda and parliamentary supremacy.

That brings us to how Appellants did attempt to tackle it on its own terms. Now here is where things get interesting. Let us go back for a moment to the amendment provisions in Kenya’s Constitution (Articles 255 – 257). Recall that Article 256 prescribes the familiar parliamentary route for certain constitutional amendments. Article 257, however, provides an alternative route known as the “popular initiative”, which requires (a) signatures of one million registered voters to initiate; (b) approval by a majority of county assemblies; (c) passage by simple majority in both Houses of Parliament, and (d) if pertaining to one of ten critical categories spelt out in Article 255, a referendum. Interestingly, therefore, the method under Article 257 is a combination of direct and representative democracy: it has elements of direct democracy in its initiation and completion (in cases of a referendum), and also elements of representative democracy through the process (ratification by county assemblies and Parliament).

In this context, Appellants argued that the participation of the people is already provided for under the Constitution, when it comes to the question of amendments. Consequently, there was no need for a separate basic structure doctrine that was itself based on public participation, as that issue had already been resolved within the Constitution. To supplement this argument, counsel referred to Article 1(1) of the Kenyan Constitution, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Stressing upon the phrase “this Constitution”, Appellants argued, therefore, that popular sovereignty did not – and could not – exist outside the Constitution. It was the Constitution that – through Article 257 – facilitated the exercise of popular sovereignty through the popular initiative amendment process.

But underlying this textual point is a deeper normative claim, which goes to the heart of constitutionalism: who are the People? Effectively, Appellants argued that “the People” had no existence – or identity – outside of the Constitution; quite literally, the People are “constituted” by the Constitution. Consequently, in holding that the basic structure could only be amended by an – effectively – extra-Constitutional process initiated – and led – by the People, the High Court had misconstrued not only the text of the Constitution, but the basic premises of constitutionalism itself.

At first blush, the argument sounds powerful. I believe, however, that in the final analysis, it fails to persuade. I would submit, with respect, that in focusing on Article 1(1), Appellants inadvertently hoisted themselves on their own petards. This is because the phrase “this Constitution” begs the anterior question, which is at the heart of the basic structure doctrine: at what point does “this Constitution” cease to be “this Constitution”, and becomes something else? It is here that Kesavananda Bharati actually becomes relevant – because what many people (especially in its home country) tend to forget is that before it was anything else, Kesavananda Bharati was a textual judgment. The majority judges took great pains to parse the meaning of the word “amend”, and took equal pains to explain how it differed from “repeal” or “abrogate” or “destroy”. To put the point at its simplest: this Constitution – whose entire structure is based on the principle of (say) representative democracy, is no longer this Constitution if all those provisions are replaced with a clause turning the State into a monarchy. Indeed, the bench repeatedly put these hypotheticals to the Appellants’ counsel – without (in my view) a satisfactory answer.

Indeed, Respondents’ counsel made this point on multiple occasions. The clearest exposition of it is to be found from around 55 minutes to 1 hour during the first session of Day 3: counsel distinguished between the concepts of “amendment” and “repeal”, and then further distinguished between two kinds of repeal: express repeal (such as when Kenya’s Independence Constitution was “retired”, in advance of the 2010 Constitution coming into force); but also, repeal by irreconcilable differences, where although a Constitution is not formally repealed, it is nonetheless repealed in effect, by introducing into it principles or provisions that are fundamentally irreconcilable with its core identity.

To this, I would add two brief points. The first is that taking the argument to its logical conclusion, Article 1(1) of the Kenyan Constitution, far from supporting Appellants’ case, is fatal to it. Because if it is true that (a) Article 1(1) only authorises the exercise of popular sovereignty within this Constitution, and (b) that this Constitution is no longer this Constitution if its basic structure is altered, it must necessarily follow that (c) if the People wish to alter the basic structure, they must act outside the Constitution. Indeed, it cannot be otherwise. And if this is conceded, then the High Court’s judgment is not only arguably but correct, but indeed, the only correct outcome. Because not only did the High Court correctly rule that alteration of the basic structure must take place outside of the Constitution, it also set out the logical corollary: that the manner of doing so must resemble, as closely as possible, the manner of the writing of the Constitution. This is so because an alteration of the basic structure amounts, in effect, to re-writing the founding document, and for that, such an activity needs to be conducted within the procedural confines of the manner in which its writing took place.

The second point is that on multiple occasions, Appellants’ counsel expressly conceded that the Constitution does have a basic structure. Counsel attempted to make light of the point by arguing that every form of government – including theocracies and one-party totalitarian States – have basic structures. Counsel then argued that the existence of a basic structure doesn’t necessarily imply the existence of the basic structure doctrine. However, it is in precisely that disjunction where the problem lies: if you accept that the Constitution has a basic structure – i.e., a core set of principles that constitute its identity – then the burden falls upon you to show how an alteration of the basic structure, and thus an alteration of constitutional identity nevertheless implies that “this Constitution” at the beginning of the process is still “this Constitution” at the end of it. I believe that this was a burden Appellants did not discharge.

The Njoya Debate

I would suggest that the above argument is also relevant to answering a question that was hotly debated on both sides of the bar during the hearings: that is, the interpretation of the Kenyan High Court’s 2004 judgment in Njoya v Attorney-General. In Njoya – which involved a challenge to the then-ongoing constitutional review process – the High Court had accepted Kesavananda Bharati, and held that under the (now-retired) Constitution, the Kenyan Parliament had no power to abrogate or repeal the Constitution. Now naturally, the Respondents strongly argued that Njoya went in their favour. However, Appellants argued equally strongly that read closely, Njoya actually supported their case. The reason for this was that in Njoya, Ringera J categorically stated that (a) Parliament had no power to abrogate the Constitution, (b) that this power belonged to the People of Kenya, acting in their sovereign capacity, and (c) that the People of Kenya were entitled to a referendum on any new Constitution (paragraphs 32 & 33, Njoya). Now if you look at Articles 255 read with 257, an amendment by popular initiative – that seeks to alter one of the ten categories set out in Article 255 (such as the territory of Kenya or the functions of Parliament) must be put to a referendum. Appellants therefore argued that the dictum of Njoya had already been incorporated into the 2010 Constitution. Indeed, the bench’s question to Mr. Nelson Havi, Respondents’ lead counsel, at around 48 mins of the first session of Day 3, went to the heart to the issue: did not the 2010 Constitution enact the very requirements outlined in Njoya?

I believe that the answer is in Njoya itself, and it is the same answer as that set out above. In paragraph 29, Ringera J wrote that popular sovereignty is “the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution” – although, of course, it could be juridically recognised by it. These lines, I submit, answer the bench’s question about the referendum provisions under Article 257: regardless of what Article 257 says about a referendum, ex hypothesi, the power to create a Constitution cannot lie within it. Now when you combine this with Njoya’s holding in paragraph 61 accepting the correctness of Kesavananda and holding that “amendment” does not mean “abrogation” or “repeal”, you reach the inescapable conclusion that a Constitution’s amendment provisions – whether or not they contemplate referenda – do not extend to the repeal of this or the creation of a new Constitution, something that can only be done through an external exercise of popular sovereignty. And that was what the High Court recognised.

Issue 2: The Discontents of the Presidential System

The second major issue was with respect to the identity of the initiator of the BBI Amendment(s). Articles 257(3) and (4) of the Kenyan Constitution contemplate the existence of the “promoters” of an amendment by popular initiative. Formally, the promoters of the BBI Amendment(s) were two parliamentarians named Dennis Waveru and Junet Mahomed. However, it was strongly urged before – and accepted by – the High Court that the actual moving force behind the Amendment(s) was the President of Kenya, Uhuru Kenyatta. The factual dispute continued before the Court of Appeal, and I do not intent to address it here. However, it was also argued by Appellants that even if it was the President who was behind the BBI Amendment(s), there was nothing wrong with it; in other words, just like any other registered voter, high State officials could also initiate amendments by popular initiative. In particular, Appellants argued that (a) there was no express bar under Article 257 that forbade the President from engaging in amendment(s) by popular initiative; (b) that explicitly, the President continued to retain political rights under the Constitution even on formal investiture, including, for example, the right to vote; (c) that as a matter of fact, even if the President had been acting in this case, he had been acting in his private capacity; and (d) that the entire purpose of Article 257 was to prevent legislative bottlenecks in a Presidential system. It was meant to deal with a situation where the political party with a majority in Parliament was opposed to the elected President’s agenda, and was stymying him. In such a situation of gridlock, Article 257 gave the President an avenue to to bypass Parliament and go directly to the People. At its deepest level, then, the argument was one about constitutional design. Appellants argued that the Kenyan Constitution did two things: it opted for the Presidential system, with its known problem of veto points and bottlenecks – and then also solved that problem through Article 257, by essentially saying “President + People > Parliament“.

Now there are a few points here. The first is that – as the bench acutely pointed out – Article 255(3)(b) of the Constitution states that the amendment procedure under Article 257 is by “the people and Parliament”. It therefore follows that the Constitution itself draws a distinction between “the People”, and constitutional bodies (such as the Parliament), even though – of course – those constitutional bodies are helmed by members of “the People”. It follows ipso facto, therefore, that much like “the people” and “Parliament” are distinct entities for the purposes of a constitutional amendment, “the people” and “the Presidency” must likewise be so.

Is this dispositive? No. However, what it does show is that textually, Articles 255 – 257 sustain the High Court’s interpretation. Whether it is the correct interpretation – given that the text is ambiguous – is of course a normative question, internal to the Kenyan Constitution. And it is here that the principles of representative and direct democracy come into tension with each other. As I have pointed out above, Article 256 provides the familiar amendment path via representative organs (Parliament), while 257 consciously combines elements of representative and direct democracy, and – specifically – envisages direct democracy at both the beginning and the end of the process.

I would submit, with respect, that this carefully balanced scheme of Article 257 would be nullified were representative organs allowed to initiate the process. Such an interpretation of Article 257 would undermine the fact the bottom-up character of direct democracy that the provision seeks to preserve. During the opening session of Day 3, at around 1 hour 6 minutes, Respondents’ counsel put the point perfectly when they argued that by definition, when the people delegate authority (as in representative democracy), the delegate no longer counts as part of ‘the people’ for the purposes of the exercise of popular sovereignty (as in direct democracy, envisioned by Article 257). The bench then asked – correctly – whether it would not be possible for the President to “wear two hats” – i.e., remain the President, while initiating a popular initiative process as a private citizen. The answer – which was provided a little later in the day – was that ‘yes, she can, but she needs to formally give up the trappings of office while doing so.’ This, to me, makes eminent sense: the entire point of Article 257 – and the carefully wrought distinction between direct and representative democracy – would be defeated if the President could say “I am President, but I ask for your signature on this popular initiative as a private citizen.” With respect, that distinction could be sustained only by denying reality.

As I have mentioned above, Appellants repeatedly argued that there was no express bar on the President’s powers under Article 257. That is true; but again, going back to Kesavananda – and much more recently, to the UK Supreme Court’s prorogation judgment in Miller v The Primer Minister, limitations upon powers exercised by constitutional authorities are not only express, but – in many cases – implied. In Miller, it was held that when you have two constitutional principles, the exercise of power under one is (impliedly) limited at the point at which the said exercise would frustrate or impede the operation of the other. That is exactly what is happening here: the President’s powers under the Constitution are limited by the operation of other constitutional principles; in the case of Article 257, that principle is the balance between direct and representative democracy in the popular initiative process.

Issue 3: The Nature of Referenda

The third issue also concerned the interpretation of Article 257. The BBI Amendment(s) had been pushed as a package deal, containing as many as seventy-four proposed amendments to the Kenyan Constitution. The High Court had nixed this in no uncertain terms, holding that in an amendment by way of popular initiative, every amendment had to be presented distinctly, and put through the process required by Article 257, separately. Appellants’ response to this holding was primarily textual, noting that Article 257 used the word “amendment”, and not “amendments.” Thus, an “amendment” could take the form of a proposed bill – that amended multiple provisions of the Constitution – but for the purposes of Article 257, the was to be treated as an amendment, in the singular.

Now it should be clear that once again, the text does not determine the issue. It could easily well be argued – and indeed, was argued – that the very use of the singular “amendment” actually means that you can only present one amendment at a time via the popular initiative. For interpretive support, Respondents’ counsel also pointed to Kenya’s Elections Act, Section 51(2) of which provides that “where there is more than one referendum question, persons intending to campaign for or against each referendum question shall, on application to the Commission, form one national referendum committee each and one committee each in every constituency for each referendum question.

Textual ambiguity, once again, brings us into the domain of the normative – and the normative issue here goes once again to the purpose of referenda, and the provision of direct democracy in a Constitution. The core argument against referenda – as we well know – is that they boil down extremely complex and nuanced questions into a simple yes/no binary. In effect, therefore, they distort the expression of public opinion by simplifying an issue to a point where a yes/no vote doesn’t accurately reflect the range of views that people hold. Now, I would submit, with respect, that given that referenda already have this problem with respect to being accurate vessels for the expression of direct democracy, a package deal referendum exacerbates that precise problem even more (the reasons are easy to see). It therefore follows that if the Court is faced with two equally legitimate textual interpretations of the same provision, one of which advances the cause of direct democracy, and the other potentially impedes it, given that the purpose of the section is to facilitate direct democracy, it should choose the former interpretation. In this case, that would be to uphold the High Court’s ruling that a popular initiative can only be for one amendment at a time.

Concluding Remarks

The above analysis has only scratched the surface of the immensely complex and nuanced arguments that I heard. Some of the fascinating arguments I have not dealt with here include, for example, the question of which side bears the burden in a dispute over whether the popular initiative involved adequate public participation or not (I would suggest that if public participation is a fundamental premise of the Kenyan Constitution, the presumption must be that official acts do not acquire a constitutional seal of approval until it is affirmatively demonstrated that public participation has taken place; think of it as a precondition); the role of constituencies in distributing resources, power, and political patronage, and why, therefore, boundary alteration affects the basic structure; whether the popular initiative starts from the moment signatures are collected, or does the public participation requirement kick in before; and so on. Ultimately, what I found most striking is that for a lot of these questions, the Constitution does not provide a textual answer. For a lot of these questions, both sides presented an interpretation that, textually, was plausible; ultimately, therefore, this ruling will turn upon what principles the Court identifies as underlying these provisions, and which interpretation it believes better furthers those principles.

A few parting remarks on the oral arguments themselves. I loved watching them: there was wit, humour, seriousness, and a whole range of styles of advocacy, with consistently high quality throughout. The timekeeping was impressively strict: a big timer showed counsel their countdown, the bench cut them short when their time was up, and barring a few occasions where I thought that counsel genuinely needed more time to develop their argument, I felt that the quality of advocacy was raised by the fact that counsel had to put their point across in limited time. The questions from the bench were sharp, focused, and at times, almost frightening in how accurately they identified weak spots in the argument. And then, away from all this, I was struck by the freedom with which people were commenting and arguing with each other in the YouTube comments section, and openly poking fun at the lawyers, the President, and even the court. As far as I could tell, none of this had any perceivable impact on “justice”. Perhaps judges in other jurisdictions may take a leaf out of this YouTube book, and treat irreverence and critique with a smile.

Finally, as an outsider, I was struck by the civility with which the arguments were conducted. By all accounts, this is amongst the most – if not the most – important constitutional case under Kenya’s new Constitution, and the High Court’s judgment was a massive setback for both President Uhuru Kenyatta, and the Hon. Raila Odinga. However – barring a few good-natured jabs back and forth, I did not see personal invective. Imagine watching the State’s lawyers argue over two days, and not once insinuate that the other side is a hotbed of anti-nationals, publicity-seekers, “lobbyists”, and a threat to sovereignty and national security?

Whew, what a thought!

Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary (Reprise)

Consider the following sequence of events.

  • A woman accuses the Chief Justice of India of sexual harassment and victimisation.
  • The next morning (a Saturday), the Chief Justice constitutes a bench for a case titled Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, presides on it, proclaims his innocence, talks about a conspiracy to destabilise the Supreme Court, berates the complainant, and then takes his name off the record of proceedings.
  • On the Monday after, a fresh bench – ostensibly set up to deal with the issue – indulges a random PIL petitioner who claims that mysterious forces are trying to “fix” the Chief Justice, and then passes an order asking a retired Supreme Court judge to “look into” these allegations.
  • An ad-hoc in-house Committee – headed by the future Chief Justice – is set up to examine the complainant’s allegations.
  • The complainant withdraws from the proceedings, stating that she does not believe she will get a fair hearing. Her objections include the fact that her lawyer is not allowed to be present while she is questioned, and that written copies of her testimony are not made available to her.
  • The In-House committee proceeds ex parte and issues a “clean chit” to the Chief Justice.
  • The In-House Committee’s report is never made public.
  • After a long period, the retired judge submits his report about the conspiracy allegations. This report is never made public.
  • Two months after the retirement of the Chief Justice, the complainant – whose position at the Supreme Court had been terminated earlier – is reinstated, with reports that it was done so on the condition that she wouldn’t pursue the case further.
  • One and a half year later, the Pegasus Revelations show that no fewer than eleven family members of the complainant were likely among the targets of a highly sophisticated surveillance program, that – formally – is only made available to governments.

On this blog, we have written frequently about these events (see here, here, here, here, here, and here). I do not intend to rehearse these points yet again. The Pegasus Revelations do not tell us anything that we did not already know about this incident, although they cast institutional conduct in an even worse light than it already was. However, given that the Revelations have brought to light yet another possible violation of the fundamental rights of the complainant as a direct consequence of her complaint, I think it important to repeat two points.

The first is that the failure in this case was not the failure of any particular judge; it was institutional failure. At various points, no fewer than eight judges (many of them now retired) were involved in this case, whether in the Saturday-Monday hearings, or in the in-house Committee. In the course of those proceedings, every conceivable stereotype – from alleging that sexual harassment allegations were a conspiracy, to the allegation that the complainant had no agency of her own and was backed by vested interests, to the accusation that the Chief Justice was being “got back” at because he was clearing up the Registry – all were taken out and given an airing from the judicial pulpit. Taken together, what happened falls well within the classic MacPherson definition of an “institutional” violation of rights:

“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.”

While the MacPherson Report was delivered in the context of institutional racism, the definition applies equally to institutional sexism. It follows then, that if the failure is institutional, then the response – or amends – must be institutional as well. The Court had an opportunity to do this in November 2019, when the ex-Chief Justice retired, and a new administration came in. History records that it did nothing. More on this below.

The second point I want to repeat is from the time of the reinstatement (January 2020). Quoting from the post at the time:

Justice is not a divisible concept. There cannot be one standard in dealing with sexual harassment complaints and another standard in dealing with constitutional challenges. You cannot separate the Court’s institutional response to sexual harassment allegations from its role as the final arbiter of law and justice in the country. You cannot acknowledge institutional failure in one domain while pretending that it is “business as usual” in another. The two will inevitably bleed into each other, and some serious questions need to be asked about what manner of justice can be expected from an institution that has, since April 2019, and up until today, responded with opacity, secrecy, ‘ad-hoc’ processes, and – finally – an outcome that is so riddled with internal inconsistencies – that it raises more questions than it answers.

The Pegasus Revelations cast both these issues in an even starker light. But while on the one hand they make the institutional failures more pronounced, at the same time, they also present an opportunity – an opportunity for the institutional response that has been so long awaited, but has never been forthcoming. What might such a response look like? I have written before that it must be collaborative, taking into account the views of the stakeholders most affected, especially women staff and women lawyers at the bar. But in light of the Pegasus Revelations, it seems to me that at the threshold, there are four things that the Court – as an institution, speaking in a collective voice – can do, that can begin the process:

  1. Issuing a mea culpa conceding to flaws in how the matter was handled, and apologising to the complainant for the manner in which she was treated, as well as for the potential surveillance that her family has been subjected to.
  2. Making public the In-House Committee Report that gave a “clean chit” to the ex-Chief Justice.
  3. Making public the Justice Patnaik Report on the potential “conspiracy” against the Supreme Court.
  4. Putting into place a structural process for handling any future such complaints (the last one, of course, must especially be based on collaborative participation).

At a very basic level, these four things should be done quite simply because it is the right thing to do (and better late than never).

But at another level, these things need to be done for the reason, noted above, that justice is not a divisible concept. Think of the next time that the Supreme Court is asked to decide a case involving sexual harassment or gender discrimination. At that time, how can the Court make a legitimate claim to be taken seriously on the issue, if even now, even now, its institutional response is an ostrich-like burying of heads in the sand, if its only reply is silence? If the Supreme Court closes ranks in the belief that this is necessary to protect the image of the institution, future perpetrators in the dock will only ask why the same indulgence is not extended to them – and what answer can be given that does not smack of the deepest hypocrisy? If the Court thinks that taking these actions now would cast it in a bad light, wouldn’t silence and inaction cast it in an even worse light, and undermine its own moral authority to fairly adjudicate these cases when they inevitably come before it? With what face can the Court affirm the anti-stereotyping principle while leaving unaddressed, unaccounted, and unspoken for, the stereotyping that its own officers engaged in when a case came home?

The Pegasus Revelations have raised some serious questions about judicial independence, which will no doubt be at the centre of the discussion in the days to come. But they have also – as pointed out above – brought a window of opportunity for the institution to adequately respond, at last, to the events of the past, while also beginning to craft a better future.

Notes from a Foreign Field: The Kenyan Supreme Court on Land, Evictions, and Horizontal Rights

In January of this year, I had written about the Supreme Court of Kenya’s judgment in Mitu Bell, dealing with questions around evictions and the right to housing. Recall that the judgment in Mitu Bell was delivered in the context of public land, but its reasoning indicated the possibility of something more. In noting that under the 2010 Constitution, “all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals”, the Supreme Court created a conceptual distinction between a legal right to land (which would be determined by property law, in the normal course of things), and a constitutional interest in land, which was available to all. In using the phrase “all land”, the Supreme Court indicated that when it came to the question of constitutional interest, there was no difference between public land and private land. As I wrote at the time, “the constitutional interest in land would not always translate into a property right, but it would vest in the occupant a range of enforceable legal rights (for example, against eviction/to alternate accommodation/to reasonable engagement etc.), that the Court would articulate and vindicate, on a case to case basis.” And it would follow from the Court’s reasoning that this range of remedies would need to be available in cases of both public and private land.

Today’s judgment of the Supreme Court of Kenya in William Musembi vs The Moi Educational Centre Co. Ltd. takes the logic of Mitu Bell one step further. Petitioners were residents of two informal settlements within the county of Nairobi. It was their case that they had been occupying the land since 1968, when it had been public land. The cause of action arose out of a forced eviction at the instance of the Respondent in 2013; the Respondent claimed private ownership of the land, and was assisted by officers of the State in carrying out the forced eviction and demolition.

In the High Court, Ngugi J found a violation of the petitioners’ rights under to dignity, security, adequate housing, and a violation of the rights of children and elderly persons under the Constitution. She awarded damages. However, this judgment was partially set aside by the Court of Appeal. The Court of Appeal found that there had only been a violation of the rights to dignity and security, and set aside the order of damages. Petitioners appealed to the Supreme Court.

The arguments before the Supreme Court turned upon whether – and to what extent – the right to accessible and adequate housing could be applied inter se between private parties, as well as the State’s obligations in cases of eviction. These intertwined questions were summed up in paragraph 54 of the Supreme Court’s judgment:

“… we are tasked with the making of a determination on the rights of the Petitioners against those of the 1st Respondent; to determine whether the State took an active positive role in ensuring that the fundamental rights and freedoms of all the parties concerned in this instant matter were protected and that in so doing, there was no abuse of the rights of the parties and thus, that the State’s negative obligation not to abuse or violate these rights and fundamental freedoms was carried out.”

Relying upon Mitu Bell, the Supreme Court noted that even where landless people did not have title to land, they nonetheless acquired a “protective right to housing” through occupation (paragraph 56). The Court therefore held that as far as the State was concerned, the principles governing evictions that were set out in Mitu Bell applied to this case as well. And here, the facts that the eviction was violent, that it was done without a Court order, and that no notice was provided, were so evident that “even the man on the street” could tell that the Petitioners’ rights had been violated (paragraph 59).

The question then arose: to what extent was the First Respondent – the private party – also responsible for the violation of constitutional rights. In paragraph 64, the Court held:

… the mandate to ensure the realization and protection of social and economic rights does not extend to the 1st Respondent, a private entity. Even though the 1st Respondent has a negative obligation to ensure that it does not violate the rights of the Petitioners, it is not under any obligation to ensure that those rights are realized, either progressively or immediately.

The Court, thus, drew a distinction between a negative obligation not to interfere with socio-economic rights (such as the right to housing), and the positive obligation to (progressively) realise those rights. The former applied to both public and private parties, whereas the latter only applied to the State.

It is clear that the distinction between negative and positive obligations is doing a lot of work here. Without going into the voluminous literature on the normative and conceptual character of the distinction, a few remarks may be made. The first is that evictions certainly constitute interference with the right to housing. Thus, both the logic of Mitu Bell, and the reasoning in this case, indicate that private parties are bound by the principles governing eviction in the same manner as the State: that is, the requirement of notice, opportunity to salvage, prioritising the rights of the elderly and of children, and so on. However, there are two further questions: what of the rights to public participation and the right not to be evicted without the provision of alternative accommodation?

I would argue that both these rights are also applicable against private parties. Article 10 of the Kenyan Constitution states that “the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them … applies or interprets this Constitution.” According to Article 10(2)(a), participation of the people is one of the “national values and principles of governance” underpinning the Kenyan Constitution. Consequently, given that: (a) Article 10 applies to all persons, including private parties; (b) that evictions from public and private land involve constitutional rights, as held by the Supreme Court – and therefore involves “application and interpretation” of the Constitution; it therefore follows, (c) that principles of public participation – which, in the eviction context, translate into the concept of “meaningful engagement” – are applicable to private parties as well.

On the question of alternative accommodation, it may be pointed out that this is a classic example of a positive obligation, and therefore – in terms of the Supreme Court judgment – not binding upon private parties. In my view, however, a distinction must be drawn between the obligation to provide alternative accommodation, and the obligation not to evict until alternative accommodation is available. The former is indeed a positive obligation and – in terms of the Supreme Court judgment – not binding on private parties. The latter, however, is a classic non-interference obligation, as it is just another pre-condition for when you can evict (like notice, participation, a court order etc.). Indeed, as this case shows, evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land. It is thus not far-fetched to argue that it must follow from this judgment that if a private party proposes to evict people from private land, then it is for the State to take on the positive obligation of securing alternative accommodation before that eviction can take place: the relationship is, of necessity, a tripartite one.

My second point is that a blanket rejection of the application of horizontality to positive obligations may not, with respect, be correct. In Juma Musjid, the South African Constitutional Court initially adopted the same position, but then walked back from it in Daniels v Scribante, perhaps recognising that the distinction between negative and positive obligations is, at the end of the day, an artificial one. Indeed, in his concurring opinion in Daniels v Scribante, Froneman J. turned his attention to the existing property distribution regime, noting how property law was a tool to entrench a certain distribution of private property which, in itself, was the source of violations of rights. In Mitu Bell, the Supreme Court had gestured towards such an understanding as well, in noting that the 2010 Constitution guaranteed to all Kenyans an interest in all land, and thus – in a way – aimed at upending traditional legal regimes that depended on a sacralisation of property regimes. It is therefore my submission that in limiting horizontal socio-economic obligations only to the State, the Supreme Court did not take forward the logic of Mitu Bell to the extent that it was possible to do so.

Finally – and crucially – the Supreme Court upheld the High Court’s judgment on damages, noting that the discretion in awarding damages had not been improperly exercised. This issue is particularly important – if less discussed – as the only way in which constitutional rights can have teeth (especially in cases of this kind) is if their breach is met by effective remedies such as compensation. This is, of course, part of the long-standing tradition of “constitutional tort” in Irish Jurisprudence, and the Kenyan courts’ own jurisprudence since 2010.

William Musembi vs Moi Educational Centre is thus landmark discussion on the issue of evictions from private land, which involve the actions of both State and private parties. In many ways, it takes forward the important logic in Mitu Bell, and continues the welcome trend of judicial skepticism towards entrenched property rights (which are themselves, invariably, the outcomes of violence and dispossession). It will be important to see, however, how the Kenyan courts take forward its prescriptions in other concrete eviction cases, where other rights – such as meaningful engagement/participation have been violated.

Notes From a Foreign Field: Unanimous Jury Trials and Retrospective Criminal Law in the United States [Guest Post]

[This is a guest post by Anant Prakash Mishra.]


The Sixth Amendment of the United States Constitution gives a criminal defendant the right to be tried by an impartial jury. In the year 2020, the American Supreme Court expanded the scope of this right in the case of Ramos v. Louisiana. In a 6-3 fashion the Supreme Court took the view that in a criminal trial, the jury ruling has to be unanimous in order to convict the defendant. Up until this judgement, the position was that 48 states of the United States required unanimous verdicts in criminal jury trials with an exception of two states, Oregon and Louisiana. Non-unanimous convictions were upheld by the American Supreme Court in the case of Apodaca v. Oregon decided in 1972. Therefore, in these two states the practice of unanimous jury convictions was never incorporated.

Relying on the history of English common law practice, the majority in Ramos v. Louisiana pointed out that unanimity in jury verdicts is an indispensable right. The same has been practiced in England since 14th century. Thus Apodaca v. Oregon was overruled and was held as not having precedential value. However, on the question of a retroactive application of the said judgement, there was no explicit clarification and this bit was left open for future. Hence, the question of ‘retroactivity’ arose in the case of ‘Edward v. Vannoy which was decided by the American Supreme Court on May 17, 2021. The question arose from the plea of Thedrick Edwards, who was convicted on a non-unanimous jury verdict in the state of Louisiana prior to the Ramos ruling. The American Supreme Court, while deciding on the plea of Edwards, held that the right of a unanimous jury conviction as recognized in the Ramos case does not apply retroactively. In a 6-3 verdict the Court clarified that there is no retroactive application and the change will be effected for cases decided after the Ramos judgement.

In my view, the majority in Edward v. Vannoy failed to look at the picture with the perspective of an individual’s right as enshrined in the constitution as well as criminal procedure. Hence, I find myself in agreement with the dissenting opinion of Justice Elena Kagan, joined by Breyer J. and Sotomayor J.

Before delving into constitutional modalities, it is important to understand why two states (Oregon & Louisiana) had a law that allowed for non-unanimous jury convictions. According to the US Supreme Court in Ramos, the law was enacted in the shadow of Jim Crow era and clearly had racial underpinnings. Justice Gorsuch went on record to state that these laws were enacted to “establish the supremacy of the white race”. He also traced the influence of organizations like the Ku Klux Klan in the enactment of these laws, which permitted a non-unanimous conviction. The intent was clearly to render the vote of African American members of the jury inconsequential, thus ensuring the conviction of the accused regardless. Therefore, on looking at the legislative history and the objective of the law, it can be concluded that the said enactment was never a ‘fair procedure’ to begin with.

While the constitution of the United States does not explicitly mention that a conviction has to be unanimous, it does say that the jury has to be impartial. So, when a 10-2 conviction is allowed to stand as valid as per the state law, it violates the sixth amendment right as guaranteed by the Constitution. It is because the law which permitted it was based on an idea of racial exclusion and that in itself undermines the constitutional guarantee of fairness in criminal procedure. Consequently, when Ramos judgement deliberated over the importance of unanimous convictions, it should have been understood as a right which has an embedded essence in the Sixth Amendment of the US Constitution.

In Edward, the majority (led by Kavanaugh J.) did not give the due regard to the Ramos judgement, thereby failing to understand the gravity of the said right. Standard of conviction is a substantial aspect of criminal procedure which demands unanimity. At this juncture, it is important to look at ‘watershed’ doctrine which came into inception with the American Supreme Court decision in the case of Teague vs. Lane (1989). According to this, changes in the rules of criminal procedure can have a retroactive application if there is a question of fundamental fairness and accuracy of the proceedings involved. However, it is interesting to note that not a single case in the US has availed such a benefit. Similarly, the majority in this case seems eager to dismiss and disregard the application of watershed theory, thereby not giving the benefit to Edward. I completely agree with Justice Kagan when she writes that if such an essential rule which forms the bedrock of a criminal trial does not classify as “watershed”, then nothing does!

It should also be kept in mind that the Supreme Court was not engaging with a newly founded rule of criminal procedure. This right had its roots in the English common law traditions and was always implicit in constitutional understanding. The laws which enabled a non-unanimous conviction in the states of Oregon and Louisiana contradicted the due process of law and were unconstitutional. Therefore, if a person is convicted of a serious crime by a non-unanimous jury and the benefit of Ramos is not extended to them, it indeed goes against the very idea of natural justice. Hence, I conclude that Edward v. Vannoy should have been looked with a rights-based approach which has its legitimacy in the sixth amendment of the Constitution, rather than taking a restrictive view concerning the criminal procedure. Unfortunately, the US Supreme Court gave no respite to Mr. Edwards and consequently he will do his life term with a 10-2, non-unanimous verdict.