Developing Workplace Constitutionalism: The Judgment of the Kenyan Employment and Labour Relations Court on “Interns” as “Employees”

On 17th April 2024, the Employment and Labour Relations Court of Kenya delivered an interesting judgment at the intersection of labour law and the Constitution (The Forum for Good Governance and Human Rights vs Teachers Service Commission and Ors.). At issue was the fact that the Teachers Service Commission (a statutory body) had engaged a number of instructors that it called “intern teachers.” “Intern teachers” were engaged on non-renewable eleven-month contracts (as opposed to permanent teachers, who were also entitled to pensions). Their status, therefore, was not that of employees, but that of contractual workers, and they were paid allowances instead of salaries. The State justified this by arguing that this was meant to “benefit young persons entering the job market.” (paragraph 4)

In a terse judgment, the ELRC held that the practice of recruiting “intern teachers” on a contractual basis was illegal and unconstitutional. The core of the Court’s argument was that the so-called “intern teachers” were duly qualified and trained; consequently, classifying them as interns was an attempt by the State to “escape the inescapable effect of the employment relationship and legal safeguards.” (paragraph 8(b)). Importantly, the Court drew upon Article 41 of the Kenyan Constitution (the guarantee of fair labour practices) to hold that the prerogative of the employer to “define the models of the terms and conditions” of work was subject to the requirements of Article 41. In this case, the evidence – which included both the nature of the work and the qualifications of the “intern teachers” – demonstrated that the objectives of classifying them as “intern teachers” was indeed the evasion of labour law obligations. The Court buttressed this finding by referring to the International Labour Organisation’s famous Recommendation 198, which warned against “disguised employment relationships”, which masked an employee’s “true legal status,” and had the effect of depriving them of the legal safeguards that they were otherwise entitled to.

On its own, this finding would be unremarkable: the issue of disguised employment status (or “misclassification”, as it is popularly known) is well-known, and courts across jurisdictions have devised ways to address it by going behind the labour contract, in order to examine the true nature of the relationship in question. This has been particularly stark in the context of gig and platform work (see, e.g., the discussion of the UK Supreme Court in Uber vs Aslam for an example). What is interesting, however, is the Court’s anchoring of its interpretation of labour law within Article 41 of the Constitution (and, relatedly, within Article 27 as well, which sets out the guarantee of non-discrimination). Recall that last year, the ELRC had done something similar when examining the obligations of Meta towards its content moderators, and holding that Meta could not outsource its obligations to local, third-party contractors (see here).

Let us call this “workplace constitutionalism.” We can understand workplace constitutionalism as an approach where the Constitution informs the interpretation and evolution of labour legislation, and where the latter is understood in light of constitutional norms (see e.g. Chapter Six of this author’s PhD Thesis; Horizontal Rights: An Institutional Approach). The merit of workplace constitutionalism is that it brings in autonomous constitutional concepts (such as equality and non-discrimination, structural differences in power, and so on) to bear upon the labour contract, and its construction under labour law. With the Meta case, and now this case, we can see the ELRC beginning to incrementally build a jurisprudence of workplace constitutionalism.

The other interesting feature of the judgment is that at the very beginning of its analysis, the ELRC holds that interns are “employees” for the purposes of labour law. It does so by citing its own precedent from 2021, and considering the definition of “employee” under section 2 of the Kenyan Employment Act, which defines “employee” as including “apprentice” and “indentured learner.” It holds that the definition is wide enough to include “learners” who learn by hands-on experience or technical training someone experienced in the field (the classical understanding of “intern”). While the Court does not go further with this, as its focus is on the holding that the teachers were misclassified as interns, nonetheless, a finding that interns are “employees” and therefore entitled to labour law safeguards is certainly revolutionary (and very much in line with the understanding of workplace constitutionalism, as discussed above). It will be important to see if this is taken forward further, in other cases involving “interns” in other professions.

Finally, the Court’s remedy is somewhat disappointing, as it refuses to order the regularisation of the “intern teachers” or the payment of back-wages, stopping only at holding the contracts to be illegal (presumably, the statutory authority will now have to re-hire individuals against existing vacancies, on the same terms as it engages permanent teachers). In my view, this was a fit case for regularisation and the payment of back-wages; however, that said, the reasoning of the Court is undoubtedly important, and adds another brick to the foundations of workplace constitutionalism in Kenya.

The High Court of Kenya Strikes Down Life Imprisonment

In July of last year, the Kenyan Court of Appeal had struck down mandatory life imprisonment as unconstitutional. As the analysis on this blog noted, the judgment was delivered in a context in which the death penalty in Kenya has not definitively been held unconstitutional (just last week, in fact, a Kenyan Court controversially handed down a death sentence). However, even as the debate around the death penalty continues, the High Court – in a judgment delivered on 19th March 2024 – held life imprisonment itself to be unconstitutional.

The judgment – Justus Ndung’u Ndung’u vs Republic, authored by Justice Nixon Sifuna, is remarkably short, coming in at six pages. It was an appeal from both a conviction and a sentence (for incest), and indeed, much of the judgment is concerned with re-appraising evidence. The Court finds that the conviction was justified, and upholds it. This then brings it to the question of sentence: the magistrate had imposed a life sentence. The Court finds it unjustified not specifically on the facts of this case, but rather, on the basis that the sentence of life imprisonment itself is unconstitutional. The heart of the analysis is in paragraph 10, where the Court notes:

A life sentence is a sentence sui generis. In that, whereas it is philosophically supposedly imprisonment for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime.

Variants of this analysis are repeated in the succeeding paragraphs, before Sifuna J concludes that the sentence is, therefore, archaic, unreasonable and absurd, and violates the right to human dignity under Article 28 of the Kenyan Constitution (paragraph 17). Reconstructing the reasoning, at its heart, the issue appears to be that unlike all other sentences, life imprisonment is not definite, but pegged to a contingent event (the end of the convict’s life), which could happen at any given time. Sifuna J. therefore compares it to the death penalty (paragraph 16), and also highlights the potential absurdity of a person who dies in prison soon after being sentenced for a heinous crime, as opposed to another person who spends years behind bars for a less serious crime (paragraph 12).

Neither of these two arguments are, however, entirely convincing. The analogy with the death penalty is striking and powerful, but it is unclear if it supports the argument for unconstitutionality, given that the death penalty itself has not been struck down yet (in fact, a situation where life imprisonment is unconstitutional but the death penalty is constitutional feels somewhat anomalous!) And the potential absurdity of someone dying an early death behind bars is not quite an absurdity if we consider that the primary penological goal of life imprisonment is prevention – i.e., to prevent a convict from committing a crime again. From that perspective, there is nothing particularly absurd about a convict dying soon after being sentenced, as there is no question of recidivism after death. It is, of course, another matter whether punishment based solely on prevention, and completely ignoring reformation or rehabilitation, can pass constitutional muster; that, however, is not considered in the judgment.

We therefore come back to the question of indefiniteness, and the violation of the right to dignity. I think that the argument – although it is not spelt out in the judgment itself – is essentially one of dehumanisation, or considering the convict purely in instrumental terms. In assuming that an individual can never be re-integrated into society, the life sentence entirely strips them of agency, or the ability to make different choices in the future. The locus of the violation of human dignity, I would suggest, lies in this assumption.

Two points then arise with respect to the judgment itself. The first – as noted above – is that the judgment does not, in its consideration of the dignity question, engage with penology, or the goals of criminal punishment. In my view, striking down a sentence provision as unconstitutional is difficult without at least considering what the stated goal of the punishment is, and how the punishment itself relates to that goal. Indeed, that is a vital element of the proportionality test, which is the overarching basis of constitutional challenges, especially of this nature. Indeed, the paragraph above – that attempts to excavate the normative basis for the indefiniteness argument – finds itself going back to the penological goals of the life sentence (as it must).

The second point is a point of procedure: notably, it does not appear that the constitutionality of the life sentence was challenged in this case (if it was, then the entirety of this paragraph can be ignored). I do not have access to the pleadings, but let us go by the Court’s own framing of the question of sentence: “Whether the imprisonment sentence imposed by the trial court was unreasonable, excessive, or too harsh.” This is not the language of a constitutional challenge, but a plea for sentence mitigation on the facts of the case. The question then arises: can the High Court strike down the life sentence without it being under challenge? Would not, for example, the State have to be put to specific notice, so that it can defend the constitutionality of the sentence in those specific terms?

While, therefore, I agree with the High Court’s decision to strike down the life sentence, and I find locating the analysis in how indefiniteness violates the right to dignity, the Court’s reluctance to engage in a full-blown analysis of the dignity question (including applying the proportionality test), as well as the possibility that there was no constitutional challenge made, might leave the judgment vulnerable upon appeal. It will be interesting to see what happens at the Court of Appeal!

Subversive Speech and the Freedom of Expression: The Judgment of the High Court of Kenya

This Monday, the High Court of Kenya at Nakuru delivered a landmark judgment on freedom of speech (Katiba Institute and Ors vs The Director of Public Prosecutions and Ors). At issue was Section 77 of the Penal Code, which criminalised acts done or words spoken with a “subversive intention.” “Subversion”, in turn, was defined as prejudicing public order or security, incitement to violence, promotion of enmity or hatred between different races, spreading disaffection, and other very similar phrases.

One Joshua Otieno Ayika was prosecuted under this section for a 2022 tweet that speculated that the army might be taking over the government. In this context, the Katiba Institute – and certain other parties – filed a challenge before the High Court, contending that Section 77 was unconstitutional. The High Court agreed, and struck it down.

The judgment of the High Court is a textbook application of some of the core doctrines of free speech. Justice Mohochi begins by noting that at the time of Independence, Kenya inherited a repressive colonial system; sedition prosecutions in the Independence era marked a continuation of this system (paras 105-106). In this context, the Mohochi J notes that the 2010 Constitution is transformative, and consciously designed to mark a break with the repressive past – including the post-colonial past, which retained colonial legal structures with “very minor and cosmetic variations that were intended for self-preservation and colonial repression.” (para 110) This requires pre-existing legislation and legislative structures to be levelled up in order to comply with the new Constitution’s standards (para 110).

The High Court’s analysis then proceeds within this historical and conceptual framework. In the present dispute, it was nobody’s case that Section 77 of the Penal Code infringed the right of free speech; the only question was whether it fell within the specific excluded categories of the free speech clause under Article 33 (propaganda for war, incitement to violence, hate speech, or advocacy of hatred based on discrimination), or whether it was protected by the general justification clause of the Bill of Rights (Article 24). The Court finds that although the State had invoked Section 77, it was unable to explain which exclusionary clause in the Constitution covered the offending tweet; this, the Court notes, is a chilling reminder of how a liberal and broad interpretation on making a decision to prosecute (something, we may add, specifically enabled by the section) makes possible the abuse of such a provision. (para 127)

Indeed, Mohochi J uses this to segue into the substantive challenge itself, noting that “the meaning of “Subversive” takes in quite a variety of activities, and that its contents are therefore broad and wide that it is vague or indefinite.” (para 128) This is, of course, a variant of the familiar free speech doctrine of “void for vagueness,” and the Court echoes the primary concern of this doctrine by noting the vast latitude that it gives to prosecutors and the police. The Court then folds the doctrine into the first limb of the proportionality standard by noting that Section 77 of the Penal Code – because of its vagueness – fails the test of being “prescribed by law.” (para 137) Strikingly, the Court finds that even the clarificatory sub-sections of Section 77 suffer from the vice of vagueness:

… there exists confusing definition of “subversion” especially about the meaning of “prejudicial to public order, security of Kenya and administration of justice”, “in defiance of or disobedience to the law and lawful authority; unlawful society” or “hatred or contempt or excite disaffection against any public officer or any class of public officer”. None of the terms used in the offence are defined or capable of precise or objective legal definition or understanding. (para 137)

One important thing to note here is that a lot of terms that the High Court singles our are staple features of repressive colonial legislation across the British commonwealth, which were then adopted into post-colonial penal codes. Too often, courts in these post-colonial countries have interpreted their Constitutions in light of these terms, rather than the other way round: that is, the scope of the free speech guarantee has been defined and limited by phrases such as “disaffection” or “prejudicial to public order,” rather than these phrases being considered on the touchstone of the Constitution. It is here that the High Court’s invocation of history (both colonial and post-colonial) becomes important, because it is that history that is the basis of the Court’s doctrinal approach towards interpreting the Constitution as responding to that history.

While Section 77 therefore failed on the first prong of the proportionality test, the Mohochi J also examines it on the third prong: necessity. In an interesting analysis, he notes that the stated goals of the provision – that is, combating hate speech, or preserving State security – are fulfilled through other existing laws, with lower penalties. This allows the Court to hold that Section 77 is not the “least restrictive measure” to serve the State’s goals, given that lesser restrictive measures exist. This is particularly interesting, as we don’t often see the “least restrictive measure” prong of the proportionality test being deployed to compare existing legislative measures.

On this basis, the Court therefore finds the relevant part of Section 77 to be unconstitutional. By way of conclusion, a final point: I have written above about the Court’s analysis, but what of the facts? It must be said, putting out a tweet stating that a military coup is imminent skirts a very fine line on the boundaries of free speech: given the potential panic that such communication might cause, one can easily see a court comparing it to the proverbial “fire in a crowded theatre” test. One must, therefore, commend the Mohochi J, in particular, for not allowing (potentially) bad facts to make bad law, and by completely separating the constitutional analysis from the individual behaviour that gave rise to the constitutional claim. Experience teaches us that while Courts always claim they do this, it is not as easy as it seems!

Making the Right to Reproductive Health Meaningful: The Judgment of the Kenyan Court of Appeal [Guest Post]

[This is a guest post by Josua Malidzo Nyawa.]

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 Introduction

The artificial cleavage separating civil and political rights and socio-economic rights was brought to an end in 2010, when Kenyans promulgated the Constitution, which expressly makes socio-economic rights justiciable. By doing so, Kenyans ensured that the most vulnerable, marginalised and disadvantaged people were protected, and that the state occupied the tiller to ensure the continual improvement of their conditions. However, despite the progressive measure of entrenching these rights in the Constitution, their enforcement and implementation have not been without challenges. While accepting that the debate on whether socioeconomic rights are justiciable is old and well-worn,  the state (like other governments) has consistently deployed the argument that socioeconomic rights are subject to progressive realisation, and to the availability of resources.

This was the case in a recent decision of the Court of Appeal in the County Government of Bungoma and others v Josephine Oundo Ongwen and others (2024) eKLR, where the state argued that since the right to maternal health is a socio-economic right, it is to be realised progressively and subject to the availability of funds. Had the Court accepted this argument, it was expected to, like Pilate, wash its hands and leave the rights to appear like ‘defected footballers who have lost a match’. However, the Court of Appeal did the precise opposite: in an innovative judgment, Justice Joel Ngugi employed the “minimum core obligation” concept to hold that notwithstanding socio-economic rights being subject to progressive realisation requirements, rights contain minimum obligations which are realisable immediately.

Setting the scene: Dereliction of duty and undignifying treatment by the state  

On 8 August 2013, Josephine, a woman from a marginalised socioeconomic setting, went to one of the district hospitals for childbirth. Upon arrival at the hospital, she was admitted, and she informed the doctors that she was overdue. The doctor informed her that she would have to undergo induced labour. Due to the space constraints at the hospital, she was forced to share a bed with another patient. As if this was not bad enough, the nurses informed her that once the labour pains started, she would have to walk to the delivery room. She was left unattended. When the labour pains started, she attempted to walk to the delivery room, but unfortunately, she had to deliver on the floor along the corridors of the hospital.

This, however, was not the end of the ordeal. When she was giving birth, she lost consciousness and was woken up by shouts and physical and verbal assaults from two nurses who were displeased with the fact that she delivered on the floor. Josephine was then forced to carry her placenta and walk to the delivery room to have it expelled. She approached the High Court and awarded her Kshs 2.5M for violation of her right to maternal health, among other rights. Dissatisfied with this judgment, the state moved to the  Court of Appeal.

The context for this case is, however, critical. In Kenya, three in four women report that they have been subjected to at least one form of obstetric violence during labour and delivery. Pregnant women have been mistreated at the hands of the healthcare workers. As a result of this background, one of the members of parliament has introduced a bill. While introducing the bill, the member of parliament stated that:

Across delivery rooms and maternity wards in Kenya, many women remain similarly unassisted and neglected as they struggle through childbirth; it is even worse if it involves women with disability. This is gender-based violence and needs to stop immediately.

The importance of this case is better expressed if it is understood with this context in mind.

A case for  minimum core obligations in Kenya

The Committee on Economic, Social and Cultural Rights (CESCR) articulated the concept of minimum core obligation in General Comment 3 in para 10. The committee formulated this requirement as follows;

The committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party……………….. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.

In simple terms, the concept seeks to provide the ’bare level ground’ for socioeconomic rights. In doing so, the concept sets ‘a quantitative and qualitative floor of socio-economic and cultural rights that must be immediately realised by the state as a matter of top priority’. The concept can further be broken down into three principles. The first is immediacy: the principle requires that the content identified must be realised immediately and not subject to progressive realisation; secondly, unique content: the identified content must be so peculiar and of high priority, without which the right loses its substantive significance as a human right; third, non-derogability: the principle requires that the identified content is non-derogable.

Courts and judges are called upon to deploy human rights language in adjudicating human rights. While considering socio-economic rights, courts must look for a proper doctrine. My assessment of the jurisprudence emanating from the Kenyan courts is that judges have failed to correctly point us to the standard of review that Kenya has chosen. However, in most decisions, the courts seem to have adopted the reasonableness test, with the Supreme Court choosing to remain silent in Mitu-Bell.

In this case, however, Justice Joel Ngugi was not shy of finding that the case involved the right to maternal health. The next obstacle was to deal with the state’s case that the hospitals are overstretched and the right should be subject to progressive realisation. In dismissing this obstacle, the Ngugi J observed that the right to maternal health has a “minimum core” that is realisable immediately and not subject to progressive realisation. He held:

It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively.

Ngugi J further identified the minimum core of the right to maternal health to include:

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

 c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

He further underscored the point that whereas the state can argue the non-availability of resources with regards to the availability of drugs, hospital beds and even shortage of medical personnel, the ‘human rights-based maternity care commanded by a purposive reading of Article 43 of the Constitution’ includes the right of women to ‘dignified, respectful health care throughout pregnancy and childbirth as well as freedom from violence and discrimination’: and that this is realizable immediately. (see para 32).

The use of the minimum core concept to deliver a constitutionally-mandated good to women who have suffered at the hands of a non-caring government is commendable. By using the concept, the Court of Appeal ensured that the right to maternal health has teeth that can bite, and is not a toothless bulldog. In the broader scheme of other socio-economic rights, it is a reminder (as noted above) that ‘article 43 of the Constitution does not sit there like a defected football player who has lost a match. It is indeed alive and has started the run towards full realisation as opposed to a slow shuffle in the name of progressive realisation.’

Although the Judge did not spend much time on whether this minimum core obligation content test is applicable in Kenya, it is easy to answer. First, article 24 of the Constitution provides a general limitation clause asking judges to consider the proportionality standard. Secondly, the provision further requires that ‘[A] provision in legislation limiting a right or fundamental freedom shall not limit the right or fundamental freedom so far as to derogate from its core or essential content’. Article 20(5) also requires the state to prioritise delivering socio-economic rights. Therefore, even if it were to be argued that the position adopted by the committee is not binding (which is wrong), the concept of minimum core obligation has already been endorsed by the Constitution of Kenya (see Orago on this).

Consequently, the Court of Appeal, laid down a solid jurisprudential foundation of socio-economic rights in Kenya. The migration of the minimum core obligation standard of review of socio-economic rights is the most progressive decision on this issue, thus far, under the new Constitution: it lays down a proper test for the adjudication of socio-economic rights. More importantly, it reiterates the court’s role of ‘[p]rodding government to be more responsive to the needs of the poor to fulfil their constitutional rights and have access to economic and social resources and services.’

Developing the law to give effect to rights

Articles 259 and 20(3) of the Constitution lay down the canons of interpretation of rights. Apart from requiring that the Constitution be interpreted liberally and purposively while giving effect to values and principles, the Constitution demands that the idea is that of maximisation of rights, and not minimalism. Notably, the Constitution imposes an injunction on judges to adopt the interpretation that most favors the enforcement of a right or fundamental freedom.  Additionally, the Constitution requires judges to continuously develop the law to bring it in line with the Constitution. This rejects any dream of judicial timidity or rigidity but calls for an interpretation that enforces the letter of the Constitution and the aura of the Constitution. In accepting to use the test adopted by the committee on economic and social rights, Justice Joel Ngugi, it is submitted, correctly appreciated the injunction imposed on him as a judge by the Constitution. .

Conclusion

This decision is welcome for various reasons. First, the Constitution’s quest to alleviate the dire poverty, economic inequalities and marginalisation in Kenya can only be achieved if judges are willing to appreciate the language of the Constitution and properly mine an appropriate approach to adjudicating socio-economic rights. Second, the decision revitalises the right to maternal health in Kenya by reiterating the minimum obligations of the state. Third, the test adopted by the court of appeal leads to a more stringent scrutiny of the state’s arguments on the non-implementation of socioeconomic rights. Put differently, it leads to jurisprudence of exasperation, which the Constitution has been loudly crying out for.

Fourth and importantly, the decision by the Court of Appeal can be argued to be one of the very first progressive decisions of that specific court in Kenya’s history of adjudication of socio-economic rights. The Court of Appeal has had a rough start with judgments such as Mitu-Bell and Musembi, hence earning the term the “graveyard of jurisprudence, where jurisprudence dies.” For the first time, Justice Joel Ngugi promises Kenyans that the Court of Appeal might be the new Shiloh of jurisprudence, the sanctuary of jurisprudence, instead.

Addressing Boundary and Transplant Issues in Horizontality: The Judgment of the Kenyan High Court in Busia Sugar Industry vs Agriculture and Food Authority

Introduction

In a judgment delivered earlier this month (Busia Sugar Industry vs Agriculture and Food Authority), the High Court of Kenya at Busia (through Musyoka J) made an important contribution towards the evolution of horizontal rights jurisprudence. The facts of the case are complex, and can be traced back to ongoing commercial battles over control of sugar production in West Kenya (see, for example, this report of parallel proceedings elsewhere). However, for our purposes, the relevant context is this: the Petitioner – a private sugar milling company – filed a constitutional petition against Respondent No. 1 (the statutory authority) and Respondent No. 2 (a rival private sugar milling company). The allegation was that Respondent No. 1 had wrongly granted a registration license to Respondent No. 2; and because Respondent No. 2’s mill was was within the Petitioner’s catchment area, as a direct consequence of the granting of this license – which allowed Respondent No. 2 to commence operations – the Petitioner was suffering a grave and ongoing financial loss. Compensation was, therefore, prayed for.

Midway through the proceedings, Respondent No. 1 (the statutory authority) was dropped. Consequently, with respect to this claim, the Petitioner’s case was solely against Respondent No. 2: that is, it was now a constitutional case, at the instance of one private party against another private party. Naturally, Respondent No. 2 argued that the case was not maintainable: at best, the Petitioner could pursue its grievances through a civil suit, and not through a case founded on an alleged violation of constitutional rights. Thus, the issue of the horizontal application of the Constitution was squarely before the Court.

Courts that have grappled with the question of horizontality – that is, the application of constitutional rights to “private” relations – have faced two issues: let us call these the boundary question and the transplant question (see, e.g., Chapter Three of the present author’s PhD Thesis; and here). In brief, and at the risk of being reductive, the boundary question asks: what principles must we deploy to define and limit the terrain of horizontal application, in order to preserve the integrity of private law, and avoid the “constitutionalisation” of all legal disputes. The transplant question asks: given the very different characters of the State and private parties, when can a constitutional right that is designed with a view to being enforceable against the State, be “transplanted” to apply to a private relationship (for example, the right to vote obviously cannot be transplanted; the right to privacy arguably can, with a few tweaks).

Since the advent of the 2010 Constitution, which makes the bill of rights horizontally applicable, the Kenyan courts (like their counterparts around the world) have grappled with both the boundary question and the transplant question (see, e.g., Chapter Eight of the present author’s PhD Thesis). With respect to the boundary question, one line of decisions has held that the existence of an alternate legal remedy (say, under private law) will be a good reason for the Court not to apply the Constitution horizontally (for an analysis and critique of this in terms of the doctrine of constitutional avoidance, see Walter Khobe). This is somewhat similar to Ireland’s constitutional tort doctrine, where some Irish courts have indicated that horizontality (via constitutional tort) will apply where private law is “inadequate” to deal with the issue (see e.g. W v Ireland (No 2) [1997] 2 IR 141 (HC); Hanrahan v Merck Sharp and Dohme [1988] ILRM 629 (SC); see also, the critique of this position by O’Cinneade). With respect to the transplant question, the doctrine is less clear: at times, the Courts have held that not all (private) disputes are fit for constitutional resolution, but in elaborating why, Courts have sometimes fallen back upon the boundary question, by noting that the existence of alternative legal remedies indicates that a particular dispute is not to be adjudicated through the prism of horizontality.

The Transplant Question

In Busia Sugar Industry, the Court considered both questions. It began with a terse but exhaustive summary of the constitutional position (paragraphs 75 – 77), laying out some of the issues discussed in the paragraph above. It then considered the issue of constitutional tort, and noted that a constitutional tort need not be applicable only against the State, but applies equally against non-State parties. While there has been some back-and-forth on this issue in previous judgments, in the Kenyan context, this is self-evidently correct: in Ireland, the constitutional tort doctrine was a judicial innovation where the Constitution was silent on the question of horizontality. In Kenya, however, Article 20 explicitly makes the Bill of Rights applicable horizontally. An action in constitutional tort, therefore, is one specific form of horizontal rights litigation under the aegis of Article 20 (i.e., it seeks compensation for wrongful breach of a constitutional right). Or, to put it another way, not all Article 20 horizontal rights application is equivalent to an action in constitutional tort, but all constitutional tort claims will fall within Article 20.

On the question of application to this case, however, the Court considered the nature of the claim: it was, essentially, a claim based on breach of legitimate expectations (i.e., the legitimate expectation that the statutory authority would act in accordance with legal procedures for registration and licensing). Musyoka J then noted that this legitimate expectation could not, by definition, be “transplanted” to the private sugar milling company (para 83). The “transplant question,” therefore, was decided autonomously, and by asking the question whether the right in question was capable of being transplanted into the private domain (it was not).

The Boundary Question

What of the boundary question? Respondent No. 2 argued that alternative remedies in private law existed for the Petitioner to pursue its claim. The Court began by framing this as an “exhaustion of remedies” issue, and noted that this would apply only where the alternative remedies existed outside the court system, and not within it (para 92). However, what the Respondent meant to argue, the Court noted, was a variant of the doctrine of avoidance: that is, the well-established principle that Courts should avoid deciding cases on constitutional grounds, where other grounds are available (para 93). Musyoka J then articulated the following response to the argument (paragraph 95):

I hold the view that this principle does not sit well with the application of the Bill of Rights horizontally. The horizontal application of the Bill of Rights enables the court, seized of a constitutional cause, to determine disputes that would have also been quite properly handled in ordinary suits. In John Atelu Omilia & another vs. Attorney-General & 4 others [2017] eKLR (Mativo, J), for example, the constitutional cause arose from a failed criminal prosecution, and the petitioners complained of violation of their rights, and sought compensation. There exist remedies in civil law for compensation for false imprisonment and malicious prosecution, and constitutional violations through botched criminal prosecutions, and related actions, can be redressed through the ordinary civil process. The petitioners, in that matter, had the option of seeking and obtaining equivalent relief through ordinary litigation, and the court had the option of avoiding determining the constitutional questions, and granting the reliefs sought, by referring the petitioners to the ordinary civil court. The principle of constitutional avoidance was not invoked, and the court proceeded to determine the constitutional questions, and to award compensation. Francis Mulomba Nguyo vs. Nation Media Group Limited vs. 2 others [2021] eKLR (W. Korir, J) is the other example. The cause was about breach of privacy, by a private entity, which could attract damages in tort for breach of privacy. That was also a constitutional violation or infringement. The court did not invoke the principle of constitutional avoidance, but entertained the claim, and awarded damages for violation of right to dignity and privacy. Perhaps, as a country, to avoid inconsistency, there could be a case to be made for embracing only one of these principles, and avoiding the other, for one negates the other.

This is extremely important, as it marks a clear, judicial departure from the position that the existence of an alternate remedy is a ground to defeat horizontal rights application. For various reasons, that proposition is unsatisfactory, and horizontal rights jurisprudence cannot evolve until it is abandoned.

Intersections with Private Law

With respect to the Court, however, its equation of the “alternate remedy” argument to the doctrine of constitutional avoidance might have been a little too quick. While the existence of an alternate remedy in private or non-constitutional ought not to defeat a horizontal rights claim, it certainly ought to inform the Court’s analysis. To take a reductive example, if A robs B, A is prosecuted under the penal code; it would sound faintly absurd if B filed a constitutional case against A on the ground of the deprivation of the right to property. This shows that the existence of non-constitutional law is not irrelevant to the question of horizontality: to reiterate the point made at the beginning of this essay, the boundary question is a question precisely because all jurisdictions realise the dangers of what Kumm refers to as “the total Constitution.”

In more conceptual terms, while a right is applicable horizontally, the details of its application often have to be worked out through legislation (for example, a Constitution that guarantees labour rights (such as, say, equal pay for equal work) does not obviate the need for a labour code that sets out the details of how those rights will be applied in the day-to-day context of industrial relations) – or, what Grigoire and Webber refer to as “legislated rights.” Now, one crucial advance that horizontality doctrine has made is to ensure that this legislation itself will be subjected to constitutional challenge if it does an insufficient job of protecting constitutional rights in the private context. This is why the Court was correct in discarding the position that the existence of a remedy in private law defeats a constitutional claim to horizontality. However, while correct, this does not completely answer the boundary question: for a complete answer, one must also examine whether the private law remedy is consistent with the rights framework established by the Constitution, as applicable to the private relationship (of course, with some necessary play in the joints for the legislature) (see, e.g., Chapter Five of the present author’s PhD Thesis). This, in turn, would – of course – require the Court to develop a theory of horizontality, or when – and to which – private relationships, the Constitution ought to apply as a threshold question (see the Rose Wangui Mwambo case for an attempt by the Kenyan Courts to do just that). Of course, that particular question was not before the Court in this case.

Conclusion

In his article on horizontal rights under the Kenyan Constitution, Brian Sang YK calls horizontality “a concept in search of content.” In its disaggregation and consideration of the boundary and the transplant questions, the High Court in Busia Sugar Industries takes one important step forward in infusing the concept with content. When we synthesise it with judgments such as Rose Wangui Mwambo – which set out an institutional approach to the threshold question of horizontal rights application – we may see the incremental emergence of a consistent and coherent doctrine of horizontality under the Kenyan Constitution. This would be a notable contribution to the ongoing, global conversation on the question of constitutional horizontal rights application.

Text and Transformation: The High Court of Kenya on the Extraterritorial Deployment of the Police

In October 2023, following a United Nations Security Council Resolution authorising the creation of a Multinational Security Support [“MSS”] for the purposes of deployment in Haiti, various high-level officials of the government of Kenya announced that Kenya would deploy police officers to Haiti under the aegis of the MSS, subject to parliamentary approval (in fact, the UNSC had recorded Kenya’s offer to lead the MSS). Naturally, this proved to be very controversial in the Kenyan public sphere; and soon afterwards, petitions were filed before the High Court, challenging this decision.

There were two questions before the High Court. First, was there an absolute bar on the extra-territorial deployment of police officers under the Kenyan Constitution? And secondly, if not, had the impugned decision followed the correct legal and constitutional procedures to do so? In a judgment delivered on the 26th of January (Ekuru Aukot and Ors vs National Security Council and Ors), the High Court answered both questions in the negative. That is, the Constitution did not prohibit the extra-territorial deployment of the Kenyan police; but the proposed deployment in the present case was illegal.

The High Court’s reasoning on both issues is straightforward – indeed, at first blush, it might appear almost deceptively straightforward. Underlying the judgment, however, are some interesting insights about the underlying purposes of the Constitution of Kenya, its approach towards public power, and issues of textual interpretation.

It was argued by the State that the source of the power to deploy police extra-territorially lay in Article 240(8) of the Constitution of Kenya. Article 240 of the Constitution establishes the National Security Council. Article 240(8) stipulates that “the Council may, with the approval of Parliament … deploy national forces outside Kenya for – (i) regional or international peace support operations; or (ii) otehr support operations.”

The key question was whether the word “forces” included “police.” The High Court held that it did not. It noted that Kenya had no “forces” “other than the Defence Forces, comprising Kenya Army, Kenya Air Force, and Kenya Navy, otherwise called the military.” (para 130) This was made clear by Article 239(1) of the Constitution, which – under the heading of “national security organs” – distinguished between “the Kenya Defence Forces” (Article 239(1)(a)) and “the National Police Service” (Article 239(1)(c)). Textually, therefore, the Constitution intended to draw a distinction between the Forces and the Service (para 131). Consequently, if the State’s argument was to be accepted, Article 240(8) should have read “national forces and services“, or “national security organs” (para 133). The specific usage of “forces”, however, implied that the police was excluded from the purview of Article 240(8). This was further buttressed by the fact that the provisions of Article 240(8) had been incorporated into the Kenya Defence Forces Act, but not in the National Police Services Act (paras 135-139).

Now, one may argue that this is a hyper-textual or mechanical reading of the Constitution. Not so. The High Court’s interpretation can be best understood as one that avoids a power creep by constraining the exercise of public power only to that which is specifically authorised by the Constitution. The importance of this lies in the fact that Kenya’s 1963 Independence Constitution saw a gradual (and then rapid) concentration of power within the office of the President, to the exclusion of other public organs or institutions. The President came to dominate all other institutions, from parliament, to the judiciary, to the commissions. One of the express goals of the movement for constitutional reform – which led to the enactment of the 2010 Constitution – was therefore to prevent a similar concentration of power, which was often achieved through incremental and gradual function creep. To this end, the 2010 Constitution articulates a clear philosophy: in the words of Yash Pal Ghai – one of the architects of the 2010 Constitution – under the document, “the powers of state institutions are prescribed with greater precision; the purposes for which powers may be exercised are specified; and rules are established to remove conflict of interests through codes of conduct and other mechanisms.” Christina Murray, another key figure behind the crafting of the 2010 Constitution, likewise notes that the bitter experience of history drove the drafters to attempt to set out the powers and functions of each body with as much clarity and specificity as possible.

It should therefore become clear that the High Court’s analysis is not simply a pedantic splitting of hairs, but entirely consistent with the Kenyan Constitution’s transformative philosophy regarding public power: in order to prevent (executive) power-creep the Kenyan Constitution requires the Court to rigorously police the boundaries of public power set up under the Constitution, and indeed, it can only do that by insisting that public power exists only where – and to the extent that – it is specifically contemplated and provided for under the text of the Constitution. This, in turn, requires the Court to closely work with the constitutional text and structure to determine where those boundaries lie – and once it has done that, to enforce those boundaries strictly. And this is exactly what the High Court did, as described above.

Did this mean that the the extra-territorial deployment of the police was prohibited? No, as the Court also found no warrant for some of the petitioners’ arguments that the Kenyan Constitution barred such deployment. The Court applied the same rigorous textual approach to find that, insofar as the National Police Service Act did provide for extra-territorial deployment, there was nothing in the text of the Constitution to suggest that this was beyond the law-making power of the Parliament. The petitioners arguments that the relevant provisions (107-110) of the National Police Service Act were unconstitutional were therefore rejected; however, these sections also made clear that extra-territorial deployment could happen only with a “reciprocating country” – a determination that the President had to publish in the Gazette. It was common cause that Haiti was not a reciprocating country under the meaning of the Act, and – consequently – the deployment was illegal.

The High Court’s analysis reveals a remarkable determination to ensure that even in cases involving potential international obligations and high policy, the route prescribed by the Constitution and the laws would have to be followed; as it noted, while the goal of the MSS mission was a noble one, the State could not act except “in accord with the Constitution and the law.” (para 146) This, the State had failed to do in the instant case.

For these reasons, the deployment was held to be unconstitutional. What is particularly interesting about the reasoning, as I have noted above, is the link between close textual reading and transformative constitutionalism: we often tend to associate transformative constitutionalism with expansive interpretation, and close textual reading with judicial conservatism. However, the High Court’s judgment gives us an excellent example of how, sometimes, there is nothing more transformative than utmost fidelity to the text.

The Social Health Insurance Act and the Housing Levy: On Stays and Irreversibility at the Kenyan Court of Appeal

We have, on this blog, recently discussed the issue of interim orders in constitutional challenges. Two recent interesting orders of the Kenyan Court of Appeal highlight the considerations that judges must balance in scenarios such as these.

In Cabinet Secretary, Ministry of Health vs Joseph Enock Aura and Ors (19th January 2024), the Court of Appeal was considering a set of constitutional challenges to the Social Health Insurance Act of 2023, the Primary Health Care Act of 2023, and the Digital Health Care Act of 2023. On 27th November 2023, at the High Court, Mwita J issued ex parte “conservatory orders” (i.e., the Kenyan equivalent of a stay), restraining the State and its agents from implementing any of the impugned laws. The State then entered appearance and contested the ex parte orders, but the High Court confirmed the stay. The State accordingly appealed.

Before the Court of Appeal, the primary argument of the State was that the conservatory orders were creating a regulatory vacuum, leaving millions of patients in the lurch (pg 10). In response, the Court noted that there was a three-pronged test to determine whether a judicial order ought to be stayed on appeal: first, the appeal ought to be “arguable” on at least one point; secondly, that failure to grant a stay would render it nugatory; and thirdly, the public interest (pg 16). While it was straightforward enough for the Court to find that the appeal was arguable, it appeared to conflate the second and third prongs, noting first that the argument from regulatory vacuum was a “public interest” argument, but also that the “disproportionate hardship” caused by the regulatory vacuum in effect rendered the appeal nugatory unless the High Court’s suspension order was stayed. While not much turned on this conflation one way or another in this case, one can imagine future cases in which it would be important to keep the second and third prongs cleanly separate.

Interestingly, however, the Court of Appeal upheld the High Court’s conservatory orders with respect to certain “arguably irreversible effect[s]” of some of the provisions of the Social Health Insurance Act. In particular, the Court of Appeal held that registration and contribution requirements to avail of healthcare services, as well as a “unique identification” requirement, would remain suspended pending a final hearing. This is important because – although the Court did not spell out its reasons – it is clear that these provisions were ones that made the access to health services conditional upon registration, and provision of personal data. What seemed to weigh with the Court, then, was the irreversibility of the State’s data gathering – especially in the context of “identifying” people for welfare benefits – and the potential of serious rights violations by making access to social services dependent upon such State action. To those familiar with the long battles around this issue, this will come as a welcome holding.

The second case was The National Assembly and Anr vs Okiya Omtatah Okoiti and Ors (26th January 2024). This was the latest salvo in the latest battle over the 2023 Finance Act, which has been covered extensively on this blog. Recall that in the last round – which was the merits hearing before the High Court – certain parts of the Finance Act had been upheld, while others – in particular, the housing levy – had been struck down (discussed here). As a result, both parties now appealed to the Court of Appeal, and asked that the specific parts of the judgment that had gone against them, be stayed pending the determination of the appeal (the added twist in this case was that the High Court had stayed its own judgment partially striking down the Finance Act for forty-five days, in order to give the State a chance to appeal – this stay lapsed on 10th January, 2024).

The Court declined all requests, thus essentially making the High Court’s judgment final (pending a substantive determination of the appeal). With respect to the original petitioners before the High Court, the Court of Appeal’s ruling was unremarkable: the High Court had already ruled that the relevant parts of the Finance Act were unconstitutional, and it would be a tall order for such a finding to be stayed in an interim order. What is more interesting, however, is the Court’s response on the question of the housing levy.

The State attempted to argue that failure to grant a stay would render the appeal nugatory: the State would not be able to collect the housing levy for this period, even if they were to subsequently succeed in the main appeal; and also, the government had entered into various contracts on the basis of the Finance Act, and would be forced to pay heavy damages in case of breach. Effectively, these were arguments based on the economic consequences of allowing the High Court’s finding of invalidity to come into effect (para 19).

The Court, however, gave short shrift to these arguments. On the question of contracts and job losses, it noted that the State had provided no evidence or documents to substantiate this claim, and that the Court could not infer the existence of such evidence in its absence (paras 62-63). On the issue of tax collection, the Court noted that the government was entirely capable of backdating taxes, and collecting them later (as indeed it had done when the High Court had first issued conservatory orders on the Finance Act) (para 61). Consequently, it could not be said, in any sense, that the failure to stay the High Court’s judgment on this point would render the appeal “nugatory.” Even more interesting was the Court’s finding on public interest: the State argued that stopping it from collecting tax and depriving it of revenue – pending final determination of the appeal – would not be in the public interest. In response, the Court held that “public interest is represented by constitutional values.” (para 81) Therefore, once the High Court had held that the housing levy was unconstitutional, public interest lay in immediate compliance with that finding. Thus:

The presumption of constitutional validity in respect of the impugned sections was extinguished the moment the trial Court issued the declaration. The question that begs an answer is whether in the circumstances of this case it would be in public interest to grant a stay whose effect is to allow a statute that has been found to be constitutionally infirm to continue being in the law books pending the hearing of an appeal. We do not think so. This is because should the Court hearing the appeal affirm the constitutional invalidity of the impugned laws, then all actions that will have been undertaken under the impugned sections of the law during the intervening period will be legally frail. (para 88)

And nor was this a case where (as in the Social Health Insurance Act), the strike down would result in a legislative vacuum, thus justifying a suspended declaration of invalidity. Consequently, the Court held that no case was made out for any further stay upon the finding that the housing levy was unconstitutional.

These two judgments, thus, mark an incremental refinement of the three-pronged test for a stay, and the infusion of concrete content into the “nugatory” and “public interest” requirements. They are also illustrations of how the judiciary can balance competing considerations, especially when it comes to time-sensitive laws, where the stakes are both high and immediate, and without being unduly deferential to the executive. It will be interesting to see how this jurisprudence evolves further.

Old Wine in New Bottles?: The Kenyan High Court’s Finance Act Judgment

On this blog, we have examined in some detail the ongoing constitutional challenge to the Kenyan Finance Act of 2023. Recall that the Finance Act was originally stayed by the High Court (see here and here), a much-talked about decision both because suspension of primary legislation does not happen too often, but also because the suspension of a Finance Act (in effect, the legal actualisation of the government budget) almost never happens; however, the High Court’s “conservatory order” was set aside by the Court of Appeal, allowing the implementation of the Finance Act to proceed (see here); the constitutional challenge was then argued in full before the High Court (see here), which handed down its judgment last week.

The petitioners were partially successful, in that the High Court struck down certain provisions of the Finance Act (in particular, the controversial and unpopular “Housing Levy”), while upholding others; however, the Court then granted a stay of forty-five days upon its judgment, to allow the government to work around some implementation problems. As that will get us through to the beginning of January – with the next Finance Act only a matter of months away – it is an open question whether the Court ended up defanging its own judgment.

That apart, the Finance Act challenge raised a host of issues around taxation and the Constitution, the legislature-executive relationship, public participation, and so on. In this post, I shall consider some of these issues. My overall argument will be that there is something of an internal tension – or dissonance – between the Court’s reasoning, and the constitutional framework within which it deploys that reasoning. In other words, while the Court operates within the framework of a transformative Constitution (an uncontroversial proposition in the Kenyan context, since 2010), it continues to engage in forms and modes of constitutional reasoning that that hearken back to an old order, and sit somewhat uneasily with transformative constitutionalism. This raises interesting questions about what, precisely, transformative constitutionalism might mean in practice – questions that are unlikely to be settled any time soon.

Money Bill

A preliminary point of challenge was the nature of the Finance Act itself. The petitioners argued that the Bill had been improperly classified as a “money bill” by the Speaker of the National Assembly. Article 114 of the Constitution of Kenya deals with “money bills.” According to Article 114(3), a money bill is a bill that contains provisions dealing with taxes, the imposition of charges on a public fund, the appropriation of public money, the raising or guaranteeing of a loan or its repayment, and matters incidental to any of these matters. Article 114(1) stipulates that a money bill “may not deal with any matter other than those listed … in clause (3).” (emphasis supplied)

This definition is familiar to students of common law parliamentary systems. The consequences are also familiar, in the context of a bicameral legislature: under Article 109(5) of the Constitution, “a money Bill may be introduced only in the National Assembly in accordance with Article 114” (that is, it cannot be introduced in the Senate, which represents the interests of devolved governments/counties). Furthermore, under Article 96(2), the Senate has the right to “participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.” Notably, this right is not extended to money bills under Article 114; thus, the passing of a money bill is a uni-cameral act in a bi-cameral system.

Finally – and also consistent with common law precedent – the certification of a bill as a money bill is done by the Speaker of the House (Article 114(2)). While in many systems, this would be the end of the matter – as the Speaker is the final authority in all matters concerning the House – this has never been the accepted position after the 2010 Constitution: that is, it is established that the question of whether or not a bill is a money bill or not is subject to judicial review, notwithstanding the decision of the Speaker.

Following judicial precedent (paragraph 117), the High Court deployed a “pith and substance plus severability” approach to the question. That is, it first asked itself whether, on a survey of all the provisions of the Finance Act, it was “in pith and substance” a money bill within the meaning of Article 114. The Court answered this question in the affirmative. Secondly, the Court asked itself whether there were any individual provisions that did not fall within the scope of Article 114. Having found that there were several such provisions that did not do so, the Court proceeded to “sever” them from the Act, and strike them down as unconstitutional (paragraphs 122 – 132).

The Court’s approach, while practically defensible, sits somewhat uneasily with the text of Article 114(1), which categorically prohibits a bill from dealing with “any matter” other than those listed in Article 114(3); if a bill does so, it would appear to be flawed at the root, and unconstitutional to start with. This is buttressed by the fact that the test of “pith and substance” is essentially a test of legislative competence in a federal/devolved structure of government. “Pith and substance” is not the happiest of tests to use when one is considering compliance with a mandatory constitutional provision, and not a clash between levels of government (for an analysis of why “pith and substance” should not apply to judicial review of money bills, see the dissenting opinion of Chandrachud J in the Indian Supreme Court’s “Aadhaar” judgment).

However, the Court’s structure of reasoning – first deploying a “pith and substance” test to determine whether the Finance Act was correctly passed as a money bill, and then looking at individual provisions – also affected another important part of the judgment. A key argument of the petitioners was that the Finance Act affected county affairs, and therefore, Senate participation in accordance with Article 96(2) was mandatory. This had not been done, and its absence was fatal to the Act. The Court answered this by noting that it had already held that the Finance Act was a “money bill” within the meaning of Article 114. That being the case, as Article 96(2) explicitly excluded senate participation in cases of money bills, the challenge failed (see e.g. para 149).

The issue with this analysis, however, is that the Constitution does not necessarily prescribe this sequence. Articles 109 – 113 deal in some detail with “bills concerning county governments.” Would it not be equally defensible to argue that, given that Article 114(1) explicitly states that a bill may not deal with any matter that is not covered by the sub-clauses of Article 114(3), that it therefore follows that it must first be considered whether a particular bill is a “bill concerning county governments” under Articles 109-113, and – if it is – to ask whether it is nonetheless exempted from Senate scrutiny due to the specific carve-outs under Article 114(3). If it is found that the Bill contains provisions that do not fall within Article 114(3), the carve-out does not apply, and Senate participation is mandatory.

I suggest that the text itself does not determine between the two approaches, and that is where transformative constitutionalism comes in: in particular, the impulse of the 2010 Constitution to move away from the executive-dominated unicameralism that characterised the Independence Constitution, and towards a devolved (if not entirely “federal”) system. Transformative constitutionalism would thus be wary of attempts to diminish – or marginalise – the legislative role of the Senate, and would be particularly wary of attempts to do this via the money bill route. The pith and substance test, however, makes it somewhat easier for the National Assembly to do so, and that is why it sits somewhat uneasily with the transformative approach.

Public Participation

There were two core grounds of challenge, based on a lack of public participation in the passing of the Finance Act. The first was that the legislature had given no reasons for rejecting the comments and input that it had received through the public participation process. And secondly, that after process of public participation, multiple new amendments had been introduced into the Finance Act, which had not been put through public participation. The second argument, in particular, had weighed with the earlier judge of the High Court, in granting a stay.

The High Court bench rejected both arguments, and it is here that I suggest that the tension between transformative constitutionalism and old forms of constitutional reasoning is at its starkest. On the first point, the High Court held that legislation was a prerogative of the legislature, and that therefore it was up to the legislature to decide whether or not it would record its reasons for accepting and rejecting public comments and suggestions (although it would be “desirable” if it did so) (para 154). On the second, the Court held that legislation would become unworkable and inefficient if, every time a bill was amended, it had to go through another round of public participation (para 157).

In my opinion, both reasons are fundamentally at odds with why public participation is introduced into a Constitution. The purpose is to infuse an element of direct democracy into law-making, and for the People to serve as a check on representatives outside of the periodic cycle of elections. As Gargarella has noted, the public participation guarantee stems from an understanding that elections are too thin a democratic link between representatives and the People; something more – and more regular – is required. This being the case, public participation – if meaningfully done – will necessarily lead to a certain degree of “inefficiency” (strictly defined) in the legislative process: after all, you are introducing an entirely new participant in the process, and one that is – by definition – polyvocal.

The effect of the High Court’s approach would be to make this participant redundant: by not requiring actual engagement with the results of public participation, the exercise can be reduced to as simple checking of boxes: take the views of the People, and then go ahead and pass whatever law you wanted to anyway. And even as you do that, make sure to withhold some important parts of the law, which are then introduced as “amendments” to the original bill, this time without the “inefficiency” of public participation (the Court’s admonition that the amendments would have to be within the “Objects and Memorandum” of the Bill is, of course, a very weak constraint at best).

It is respectfully submitted that – especially given that meaningful and active public participation was at the core of the drafting of the 2010 Constitution – such an interpretation ought to be avoided. Notably, both the issues the Court flagged could be dealt with in more proportionate ways. One would not expect the Assembly to send in written responses to every public comment that it received; however, the Assembly is more than capable of grouping responses into themes (say, for example, a common set of objections to the Housing Levy), and then recording its response, and its reasons for accepting or rejecting that set of public comments; think of it as something similar to the concept of “meaningful engagement” in eviction cases. And secondly, it is not that every amendment necessitates a fresh round of public participation: it is nobody’s case that a draughtperson’s corrections would require it. Nor, arguably, would there be a need for a fresh round if the National Assembly was amending a bill in order to incorporate public comments or suggestions. However, surely, if a fresh set of provisions are tacked on to a bill that are solely the result of parliamentary debate, they do need to go through public participation: after all, that is the entire point of introducing direct democracy into the representative process.

I suggest, therefore, that the Court’s reasoning here is motivated by an intellectual framework that continues to see legislation as an exclusively representative function, with the element of direct democracy an afterthought at best; it is this intellectual framework that allows the Court, in effect, to relegate this element to an afterthought. This is, however, in tension with a transformative vision where the People are seen as active participants and agents in the legislative process – a vision where a certain degree of inefficiency – democratic sand in the machine, so to say – is accepted to be not only necessary, but even desirable.

Taxation and Substantive Review

Previously, I had highlighted some interesting arguments made in this case about the relationship between taxation and the bill of rights (especially substantive equality and non-discrimination). It is respectfully submitted that on this point, the High Court’s analysis was somewhat sketchy. It cited precedent – and, in particular, a 2012 Indian Supreme Court case (Rakesh Kohli) – to argue that judicial review of tax legislation would have to be deferential in nature (para 163). It then dismissed a set of substantive challenges by noting simply that “we hold that these are matters within the competence of the legislature and reflect the policy choices of the national government. The Petitioners have not shown how these provisions violate the Constitution.” (para 175)

It is true that there is a hoary constitutional tradition – across jurisdictions – of judicial deference to taxation statutes. However, when you think about it, there is a deep irony here: taxation is one of the most powerful State tools to shape and modulate behaviour, facilitate, incentivise, and even severely limit individual choices. While there is no doubt that Courts should not be substituting their choices for those of the elected legislature, it is difficult to see why – when there is a bill of rights challenge being brought – a tax statute should elicit extraordinary deference. As we have discussed previously, taxes can and often are discriminatory, specifically with respect to the behaviour and consumption choices of the economically marginalised and vulnerable: this was the basis on which the Colombian Constitutional Court struck down an infamous “tampon tax”, for example. In this case, the Petitioners had specifically argued that regressive taxes “shift the tax burden to … low income earners”, thus trying to bring in economic class as a ground for discrimination, as well as other interesting challenges (based on the climate crisis and a right to a clean environment, for example). It is respectfully submitted that these challenges deserved substantive consideration by the Court, and not (what was effectively) interpretive avoidance through doctrines of deference.

Indeed, this was evident in the part of the Act that the Court did strike down – the Housing Levy – where again, the reasoning was somewhat sketchy: the Court simply held that the distinction drawn by the Levy was not supported by rational considerations, and that it was impermissibly vague: the Court did not, however, subject the Levy to an analysis under the bill of rights standards, thus making it a difficult act to follow in the future – and leaving such questions substantially to judicial discretion.

Conclusion

If transformative constitutionalism is to be more than a slogan or – worse – a shibboleth, it requires an interrogation of established modes of constitutional interpretation, from the perspective of what, precisely, a particular Constitution seeks to transform. The High Court’s Finance Act judgment – while being closely reasoned and well-argued in its own right – nonetheless appears to replicate some older forms of constitutional interpretation that are in tension with transformative constitutionalism. I have highlighted three of these: the relationship between money bills and devolution, public participation and direct democracy, and taxes and fundamental rights. Going forward, it will be interesting to see if future cases will interrogate some of these forms of reasoning in greater detail – developing the concept of transformative constitutionalism as they do – or whether the High Court’s judgment is an indicator of the interpretive limits of transformative constitutionalism, at least for the moment. Time will tell!

The Kenyan Finance Act Challenge: On Taxes and Equality

On this blog, we have discussed previously the ongoing constitutional challenges to the much-debated Kenyan Finance Act of 2023 (see here and here for analysis of the High Court’s conservatory orders, and here for the Court of Appeal’s order). After a see-saw battle up and down the courts that ultimately saw the Supreme Court reject an appeal to reinstate a stay on the Finance Act, the case was heard on merits yesterday before the High Court.

The importance of this case from a comparative perspective lies in the fact that it launches a frontal challenge to that has long been a pillar of “established wisdom”: that taxes cannot, in general, be struck down on grounds of fundamental rights violations (there are, of course, exceptions for punitive or confiscatory taxation, but they do not concern us here). The reasons for this are twofold: first, that taxation is one of the core incidents of sovereignty, and should therefore brook minimal interference from courts; and secondly, that as part of the annual financial budget, questions of tax require the kind of poly-centric decision-making that courts have neither the competence, nor the legitimacy, to review.

As has been discussed previously, the established wisdom is somewhat at odds with the fact that taxation is one of the most potent tools in the hands of the government when it comes to shaping public behaviour, incentivising or disincentivising (or even eliminating) certain choices, and so on. Taxation, therefore, would seem to merit more searching scrutiny on grounds of constitutional violations, rather than less. And in some cases, the Courts have indeed hewed to this logic: for example, during Covid, the Delhi High Court invalidated a tax on oxygen concentrators on substantive, constitutional grounds (the Supreme Court later stayed this in an unreasoned order); earlier this year, the Kenyan High Court itself, in Matindi, subjected an income tax exemption to scrutiny under the Constitution’s non-discrimination clause; and perhaps most famously, the Constitutional Court of Colombia struck down a tax on sanitary pads on the basis that it was, in effect, discriminatory against women (see also a similar discussion in the context of India).

What is, however, particularly interesting – and potentially radical – about the Finance Act challenge is that it invites the court to take one important step further. This is spelt out with clarity in the Written Submissions of the Petitioners, led by the Kenya Human Rights Commission: from paragraphs 10 to 27 of their written submissions, the Petitioners challenge a set of taxes imposed under the Finance Act on the basis that they are, in effect, regressive in character, and thereby unconstitutionally “shift the tax burden to … low income earners.” (paragraph 10, Written Submissions) They key thing here is that while this remains, in effect, a discrimination argument (on the lines of Matindi and the Colombian Constitutional Court), what it alleges is class discrimination: the category of people being discriminated against are “low income earners”, or – as stated elsewhere in the written submissions – “marginalised groups.”

This is a crucial argument, because – for obvious reasons – Constitutions (even the most progressive among them) have always had a blind spot when it comes to treating class as a ground of discrimination (because the moment you concede that class – or poverty – impacts constitutional equality, you will have to ask some very uncomfortable questions about the economic system as a whole); indeed, Article 27 of the Kenyan Constitution itself does not list “class” as a prohibited ground (this is why the Petitioners rely on other provisions – such as Articles 10 and 21(3), and expressly guaranteed principles of constitutional equity and fairness, especially in the context of taxation). But furthermore, the argument is particularly crucial in the Kenyan context, because recent Kenyan jurisprudence has gestured towards recognising class as an aspect of discrimination: in July, the Court of Appeal, in Nairobi Bottlers Ltd, held that providing differential nutritional information to consumers on the basis of differential “purchasing power” violated the Constitution.

Thus, the significance of the Petitioners’ arguments is twofold: not only do they invite the Court to further evolve the (globally nascent) jurisprudence on the relationship between tax and the Constitution, but they also invite the Court to further evolve the (nascent Kenyan) jurisprudence on the relationship between class, poverty, and the guarantee of constitutional equality and non-discrimination. It will be fascinating to see if – and if so, how – the Court accepts and engages with this invitation, especially in light of the transformative promise of the Kenyan Constitution.

There are a few other ground of challenge that are fascinating in their own right: Part (IV) (para 44 onwards) invites the Court to examine certain taxes on the touchstone of the climate crisis, again contributing to a globally nascent jurisprudence of the relationship between judicial review and the climate crisis; there is a submission on illegal certification of money bills, which will be extremely familiar to Indian readers (para 54 onwards); and there is a very interesting submission on effective public participation in fiscal policy (para 58 onwards), which calls for substantive public participation – and evidence that public submissions are engaged with by Parliament, before it dismisses them and passes the law regardless. Each of these submissions have the potential for significantly developing the law in their respective domains, and once again, it is worth following closely how the Court engages with them.

But for me, the most interesting aspect of these submissions remains the clear acknowledgment of the fact that at their core, taxes are (by definition) about redistribution, and the nature of that redistribution (in this case, upwards redistribution through a regressive tax) is something that should be subjected to scrutiny on the touchstone of constitutional equality and non-discrimination.

Guest Post: Sleeping Sentinel? – The Kenyan Court of Appeal’s Ruling on the Finance Act

[This is a guest post by Joshua Malidzo Nyawa.]

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Introduction

In previous posts on this blog, Gautam and I considered the ruling of the High Court of Kenya, where Justice Thande suspended the operation of the newly enacted Finance Act through conservatory orders pending the hearing and determination of the petition challenging the Act both on procedural and substantive grounds. In the previous post, I commended the High Court for acting as the People’s Court by blowing the whistle in the 10^th minute of a 90-minute football match, in order to preclude threats of constitutional violations from continuing through the game. Unfortunately, on 28 July 2023, the Court of Appeal in a retrogressive ruling lifted the conservatory orders pending the hearing and determination of an appeal challenging the High Court Ruling.  

In this post, I will argue that the Court of Appeal erred in its orders, and that its ruling betrays an underlying deference to the executive that is inconsistent with the principles and premises of the Constitution.

New wine into old wineskins: Considering the test for Rule 5(2)(b) applications

Reading the ruling reminded me of the parable in Luke 5:37 that one should not put new wine into old wineskins. Unfortunately, the Court of Appeal went against this biblical caution. Rule 5(2)(b) of the Court of Appeal Rules grants the Court of Appeal the power to stay the execution of a judgment or ruling or issue an injunction pending the hearing of an appeal. This power is granted in subsidiary legislation under the Appellate Jurisdiction Act enacted in 1977. Although the Court of Appeal Rules 2010 were revoked by the Court of Appeal Rules 2022, the content remained the same. Rule 5(2)(b) provides as follows:

(b)in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.

The Court of Appeal reiterated the usual test set out by the court as follows:

30. Turning to the nucleus of the application, it is common ground amongst all the parties that the applicants must satisfy the twin principles – the appeal should be arguable and not frivolous and that if the stay is not granted, the appeal will be rendered nugatory.

However, the wording of rule 5(2)(b), and the test developed by the Court of Appeal over the years has been in the context of purely private disputes (private remedies) in civil matters. Therefore, an applicant is only required to show that the intended appeal is arguable and the same would be rendered nugatory if the stay is not granted. However, when transplanted into the public law context, the test adopted by the Court of Appeal is a weak test that ignores the nature and purpose of public law remedies. Public law remedies go beyond the parties and are meant to vindicate the Constitution and safeguard the values in the Constitution. In an application to lift public law remedies, this aspect should feature in the Court’s analysis. To consider if an appeal is arguable and whether it will be rendered nugatory without more defeats the purpose of public law remedies and back-peddles the evolution of conservatory orders in particular.

Put differently, the traditional two-tier test adopted by the Court of Appeal is a test caught up in a time warp: its hands-off character is inconsistent with the Constitution, as it stultifies the transformative potential of Article 23 (which provides for public remedies).

Judicial precedent supports this reading. In the previous post, I pointed out that conservatory orders are public remedies with the supreme court noting that they have a  ‘more decided public-law connotation’ meant to secure the enforcement of the Constitution. Due to this public connotation, the supreme court created a test that is different from the test to grant normal injunctions. The Supreme Court in Gitirau Peter Munya vs. Dickson Mwenda Kithinji expressed itself thus

Conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the “prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success’ in the applicant’s case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes… However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely…That it is in the public interest that the order of stay be granted. This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.

Therefore, if the grant of conservatory orders is based on the preservation or enhancement of constitutional values, the Bill of Rights etc., how can an application meant to suspend the conservatory orders issued ignore such a criterion? A proper test in my view is the test proposed by the Supreme Court (for the most recent reiteration – albeit with problematic application – see Kenya Brewers Association). The Court of Appeal while considering the lifting of conservatory orders, should also centre its decision on the enhancement of constitutional values and the bill of rights.

This position is supported by various provisions of Kenyan law. First, the Constitution demands that statutes conform to the Constitution. An interpretation or application of a statute must reflect the values that run through the Constitution. Article 10 provides that the national values bind state organs and all persons whenever any of them applies or enacts any law. This provision alone imposes an obligation on the Court of Appeal to promote the values when it applies a statute. Consideration of a 5(2)(b) application involves the application of statutes to a dispute and they cannot be divorced from the reach of Article 10.

Second, article 20(4) obligates courts to promote the values that underlie an open and democratic society and also the spirit, purport and objects of the Bill of Rights.  Again this is a fundamental obligation imposed on the courts. Had the Court of Appeal considered the spirit, purport and objects of the Bill of Rights and in particular article 23, they would have realised that the normal test for a stay of execution is not in line with the constitutional language.

Third, Article 20(3) obligates courts to develop any law to the extent that it does not give effect to a right. The reliance on precedents on the test for a stay of execution by the court of appeal without considering whether the test gives effect to the Bill of Rights is unjustifiable. The court of appeal was required to ‘step over the trip-wires of previous cases and to bring the law into accord with the needs of today’. It is no longer justifiable for the Court of Appeal to rely on previous precedent, especially when such precedent has been overtaken by the Constitution.

Whose public interest?

The most problematic part of the decision however is its consideration of what it termed the public interest criterion. Firstly, the court of appeal considers the aspect of whether the appeal will be rendered nugatory as it considers the public interest (See para 41).  Second, the court proceeds to state that the finance act is a unique statute and it is instrumental in defining the government policy as it is used to raise revenue (see para 42). Third, the court proceeds to state that tax is a continuous process and the public can get a rebate for overpaid taxes and finally ‘had the trial Judge considered the substantial and irreversible public interest in this matter, the court would have been hesitant to suspend the whole Act’ (see para 43). The Court of Appeal, therefore, found that the public interest tilted in favour of setting aside the conservatory orders (before anything more, to set the record straight, the court of appeal was factually incorrect. As it will be shown below, it is not true that the high court did not consider the public interest).

It is by virtue of such language that the Court of Appeal’s order sounded more executive-minded than the executive, or engaging in the vocabulary of the executive (“an executive court.”) To consider the collection of taxes as carrying more public interest than adhering to the dictates of the constitution is, in essence, executive’s language: as  the High Court noted, public interest lies in ensuring that all laws enacted by parliament conform to the constitution. Thus, as Justice Thande had held in the High Court:

50. … even where as in the present case, the prejudice complained about is the loss of taxes, this has to be balanced with the legal requirement that all taxes must grounded on the law. The Petitioners have raised several grounds upon which they claim that the Finance Act in respect of which conservatory orders were issued, is unconstitutional. My view is that were the Court to set aside the conservatory orders, the Petition would be rendered a mere academic exercise. The further public interest requires that this Court must discharge its constitutional mandate of protecting the supremacy of the Constitution by ensuring that all laws conform to the Constitution.

As I pointed out in the previous blog and I would reiterate the point, the High Court has been straightforward with this argument. Although the High Court has noted in Okiya, the mandatory minimum tax ruling and the ruling suspending the Tax Laws (Amendment) Act, 2020, that the executive is allowed to collect taxes, it has also held that the mere loss of taxes cannot justify the setting aside of the conservatory orders on the simple basis that taxes must be grounded on the law. Secondly, there is no greater public interest other than the ’….the court playing its constitutional mandate of ensuring that all laws and actions of public bodies including imposing taxes conform with the law’.

Even if one were to agree with the Court of Appeal that there is an aspect of public interest in collecting taxes, there is something else that should not be lost: the point is that with such a ruling, the Court of Appeal allows the executive to create a scenario where the executive commits a potential illegality and when taken to court, it responds by stating that its actions should not be suspended because the consequences of suspension are irreversible. As noted in the previous post, the Court of Appeal’s ruling incentivizes constitutional hardball.

Finally, the Court of Appeal is of the view that the public is capable of getting a rebate on overpaid taxes. The Court of Appeal ignores two things: both substantive and practical. First, the Court of Appeal suggests that the public should be compelled to pay taxes based on a law which is capable of being found unconstitutional in future. This ignores the wording of articles 22 and 258 where courts can be approached to prevent threats to the constitution. Second, on practicality: how, precisely, will the citizens who have paid VAT be reimbursed? Is the court suggesting that if the Act is declared unconstitutional, the government will be forced to return the taxes paid to the individuals? This is impractical: for example, if the new taxes cause fuel price rise, on what basis will the refund be calculated?

Ignoring its past precedent

This was not the first time that the Court of Appeal was considering the lifting of conservatory orders. The court in Attorney General & another v Coalition for Reform and Democracy held that constitutional supremacy has a higher place than public interest. While rejecting to lift the conservatory orders, the court noted thus:

When weighty challenges against a statute have been raised and placed before the High Court, if, upon exercise of its discretion, the Court is of the view that implementation of various sections of the impugned statute ought to be suspended pending final determination as to their constitutionality, a very strong case has to be made out before this Court can lift the conservatory order. The State would have to demonstrate, for example, that suspension of the statute or any part thereof has occasioned a lacuna in its operations or governance structure which, if left unfilled, even for a short while, is likely to cause very grave consequences to the general populace.

Taking this precedent into account, the court was supposed to pose the question whether the suspension had created a lacuna in the operations of the government and whether, if left unfilled, there would be very grave consequences to the general populace. This was not demonstrated by the state. This is for the simple reason that the government was able to collect taxes and was able to remain afloat. Further, newspapers have just reported that the government has backdated the taxes upon the suspension of the conservatory orders. In simple terms, there was no lacuna at all.

Conclusion

The Court of Appeal’s strategic plan for 2020-2024 provides for the mission of the court to uphold the constitution of Kenya, the rule of law, advance indigenous and robust jurisprudence that can be benchmarked regionally and globally and provide access to appellate justice to all. Unfortunately, its jurisprudence won’t be benchmarked if it is this kind of jurisprudence: that is, a jurisprudence that answers the question of whether a court of law can be called upon to aid the furtherance of a constitutional breach in the positive, or a jurisprudence that ignores the intestinal fluid that nourishes the Constitution but embraces the executive’s story without question. This jurisprudence is one that is dwarfed by the progressive jurisprudence of the High Court.

It is therefore respectfully submitted that should consider returning to basics: that is, it must be a watchful guardian of the constitution and refrain from judicial deference when threats of constitutional violations are demonstrated at the threshold.