ADMINISTRATIVE LAW (FLB 207) CAT 2018
2. Kenyan courts are largely conservative in opening up judicial review for acts of private bodies. Tease out the position embraced by the Constitution and the Fair Administrative Actions Act on the question of the reviewability of ostensibly private body actions. This should be followed by a critique of the jurisprudence developed by Kenyan courts in the post-2010 dispensation to determine whether the courts have embraced the vision of the Constitution on the question of reviewability of administrative acts by private bodies.
The year 2010 ushered a new constitutional dispensation in Kenya with the promulgation of the Constitution of Kenya, 2010. This Constitution contained many progressive provisions, including a well-versed Chapter on Bill of Rights, devolution and an entire chapter on leadership and integrity. Further, the Constitution expanded the scope of locus standi and the grounds of judicial review.
Prior to its adoption and enactment, there appeared to be a clear divide sandwiched between public and private law. The grounds upon which one could base an application for judicial review were of common law origin as the practice of the courts exercising judicial review powers was largely borrowed from the United Kingdom and Order 53 of the Civil Procedure Rules. In Speaker of the Senate v Attorney General 2013 eKLR the Supreme Court held that “………The English tradition of Parliamentary supremacy does not commend itself to nascent democracies such as ours”……… kudos to the Supreme Court for pronouncing itself on the power of judicial review in Kenya as being obtained in the Constitution and not common law, for the reason that common law, in its procedure, basis, and idealistic fortifications, transmits with it nuts and bolts and propensities that do not resonate with the transformative vision mirrored in avant-garde bills of rights. Without fear of contradiction, the drawbacks in Kenyan courts, emanates from the rudimentary legal and jurisprudential standard on which English common law is assembled, that is to say Austinian positivism and Diceyian parliamentary sovereignty, concepts which are discordant with the transformative principles of Kenya’s 2010 Constitution.
Nevertheless, besides the Supreme Court, no other court has fully delved into and expounded on the notion of judicial review in Kenya as a constitutional regulation of power. The time is ripe for the Constitutional and Human Rights Division of the High Court to develop the law in this regard. All decisions of the Supreme Court, including that on the constitutional foundation of judicial review championed in CCK v Royal Media Services Ltd 2014 eKLR where the Supreme Court, ably citing Articles 23(3)(d) and 165(3)(d)), held that the power of judicial review in Kenya is unearthed in the Constitution, and is binding upon the High Court, Article 163 (7) “All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court”. The High Court must develop its judicial review jurisprudence in conjunction with the mainstreamed “theory of a wholistic interpretation of the Constitution”.
The above notwithstanding we must appreciate just how far Kenya, as a country that respects the rule of law, has progressed with regard to Judicial Review, so it would be inescapable to mention the case of Republic v Kenya Cricket Association ex parte Maurice Odumbe 2006 eKLR, where the High Court of Kenya declined Odumbe’s application, reasoning that in disciplining him, the ICC and KCA had not performed any duty of a public nature nor were the consequences of the performance of their duty of a public nature. To unpack the bad law in the Odumbe case, on the point that private bodies are not amenable to judicial review, Prof. Migai Aketch argues in “The Maurice Odumbe Investigation and Judicial Review of the Power of International Sports Organisations”, the High Court decision in the Odumbe case was at odds with the (then) emerging progressive view that the dispositive factor, in judicial review, should not be whether power is public but that irrespective of its source it (power) is capable of adversely affecting the rights of individuals. And if it is capable of doing so then it ought to be subject to the requirement of considerate decision making. That progressive view has since found its way to Kenyan courts with the passage of the Constitution on 27 August 2010, some 4yrs after the Odumbe case was decided’.
Article 165 (6) of the 2010 constitution reads: “The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” Essentially what this means is that the Constitution confers to the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function.
Without belaboring the verity, if private bodies employ quasi-judicial functions, they are acquiescent to judicial review, so one can unreservedly assert that “quasi-judicial” would most certainly refer to activities of private bodies like ICC and KCA, against whom Odumbe required judicial review. According to the Merriam Webster Dictionary, “quasi-judicial” is defined as:
Having a partly judicial character by possession of the right to hold hearings on and conduct investigations into disputed claims and alleged infractions of rules and regulations and to make decisions in the general manner of courts.
Essentially judicial in character but not within the judicial power or function especially as constitutionally defined”
The constitution has expressly granted the High Court jurisdiction over any person, body or authority exercising a quasi-judicial function. A purposive reading of the constitution clearly demonstrates that it is not about whether a purpose is public or private but if the purpose is judicial or quasi-judicial and whether it influences constitutional rights incorporating the right to fair administrative action as confined by Article 47, or the right to natural justice in Article 50. Under the Constitution of Kenya, 2010 judicial review orders, are applicable against any private person, body or authority who exercises a judicial or quasi-judicial functions by which a right or fundamental freedom of a person has been or is likely to be adversely affected.
Preceding the promulgation of the Constitution of Kenya, 2010 judicial review was conducted under the auspices of common law. Our judicial system, as aforementioned, has principally inherited immensely from the British legal system; Kenyan courts rationalize some of their actions by asserting, although erroneously that the Judicial Review merely enforces the will of the Legislature. In this post-2010 era, Kenya has been transformed from a parliamentary sovereignty into a constitutional egalitarian state where the Constitution is supreme as evidenced by Article 2 of Kenya’s transformative constitution. In Speaker of the Senate v Attorney General 2013 eKLR the Supreme Court held that “…Parliament must operate under the Constitution which is the supreme law of the land……………….”
Ochiel J. Dudley, in his illumined piece, “The constitution of Kenya 2010 and judicial review: Why the Odumbe case would be decided differently today” harangues that “…….the incompatibility of the common law with transformative constitutional-ism has also been the concern of Davis and Klare in Transformative Constitutionalism and the Common and Customary Law where they express the apprehension that, the inbred formalism of the legal culture and the absence of a well-developed tradition of critical jurisprudence may dampen efforts to renovate the legal infrastructure in the way envisaged by the Constitution. They express the basic assumption underlying transformative constitutions: that the nation cannot progress to social justice with a legal system that rigs a transformative constitutional superstructure onto a common law base inherited from the past.
Among the national values and principles of governance is the rule of law. The constitution of Kenya also provides the manner of its interpretation which includes advancement of the rule of law. As Elisha Ongoya, Advocate of the High Court of Kenya and Law Lecturer, reflects in his illuminating piece, “The changing character of judicial review jurisdiction under the constitutional and statutory order in Kenya”, and rightfully so, that ‘judicial review is the rule of law in motion’. The provisions of the Constitution provide for a circumlocutory affiliation between the supreme law and judicial review of administrative actions. Additionally, the preamble in the constitution 2010 points towards a constitution founded on the recognition of “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy social justice and the rule of law (emphasis added). To further elaborate on the far reaching tentacles of the constitution encompassing private entities; Article 47 of the constitution codifies every person’s right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Which means that any applicant who sufficiently believes an administrator’s actions, or the administrator, has acted in a prejudicial manner, has an avenue to challenge any administrative action or decision in accordance with the procedure set out under the Commission on Administrative Justice Act, through the jurisdiction to entertain applications for judicial review remedies as vested in the High Court……….all is not lost, in the case of Judicial Service Commission v Speaker of the National Assembly 2014 eKLR the High Court explained that “…We have entered a new constitutional era in which it is the Constitution which is supreme; in which none of the arms of government can claim supremacy; and which vests the High Court with the onerous responsibility of being the watchdog for the new Constitution…………………………………”
Having said that the Fair Administrative Action Act, 2015 brings private entities into the purview of Judicial Review vide:
(1) This Act applies to all state and non-state agencies, including any person
(a) Exercising administrative authority;
(b) Performing a judicial or quasi-judicial function under the Constitution or any written law; or
(c) Whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.
Professor Cora Hoexter speaking at the Article 47 Workshop at the Kenya School of Government about the situation in South Africa said there exists overlap and similarities between Section 33 of the South African Constitution and Article 47 of the Kenyan Constitution. To a considerable extent, the Promotion of Administrative Justice Act (PAJA)) inspired the drafting of the Fair Administrative Action (FAAA, for short), but the FAAA- Prof. Hoexter said –is better than PAJA. She went on to say that initially courts had difficulty understanding the idea of constitutionalisation of the common law. In 2000, the Constitutional Court in the Pharmaceutical Manufacturers Association of South Africa in re ex parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) at 33 dealt with the confusion: Common law principles are subsumed under the constitution, and it was affirmed that there are not two systems of law but only one system of law and everything and everyone answers to the constitution. At the same forum Prof. Migai Akech made a key observation with regard to Article 47 cases in Kenyan courts and the tendency by judges to confine themselves to the natural justice principle, hence the question on how well the judges see it beyond common law. He went on further to say that there is no need for judges to rely strictly on Article 47 when there is the FAAA. It was noted that the FAAA being fairly new, it may not be cited much. There was general consensus on the need to educate lawyers (litigants) and judges alike to the broader sense of the FAAA to cure the confinement to Article 47.
The High Court continues to agree to or disallow judicial review rigorously on the basis of precedents cultivated under the common law sanctioning judicial review on the basis of public-private power dichotomy. In CCK v Royal Media Services Ltd 2014 eKLR the Supreme Court warned that thoughtless reverence to the interpretation of common law rules, statutes, and far-off cases can undermine the notion of constitutional interpretation. This concern was reiterated in Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy 2014 eKLR that “…the Constitution should be interpreted in a holistic manner; that the country’s history has to be taken into consideration; and that a stereotyped recourse to the interpretive rules of the common law, statutes or far-off cases, can weaken prerequisite methodology to the interpretation of the Constitution”
As a result, the persistence of the High Court on the obsolete common law “public-private” notion of power in judicial review may threaten the theory of constitutional interpretation and blur the transformative principles of the Constitution. It is also appropriate to resound Prof Gathii’s warning at this point, “The Kenyan judiciary must guard against the development of a two-tracked system of judicial review. One that looks like the old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles of judicial review on the other. Those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution”, the judiciary must, to echo Professor Cora Hoexter, be wary of generating two paths to judicial review with one path seemingly decided under the common-law principles, while the other under the constitution of Kenya’s principle of judicial review.
It is indeed a disturbing thought that a categorization of purposes as either public or private will lead to complexities because bequeathing some cases with procedural safeguards, originated from Article 47, while repudiating others will constitute prejudice. The situation would be greatly aggravated when consequences of those decisions escalate similar grave consequences for those whose rights and freedoms are negatively affected, in spite of the categorization of the function in issue. It would be a preposterous proposition to contemplate a situation, for instance where Article 47 has been breached: by a public body against X and a private person against Y, where both circumstances entail the application of a quasi-judicial function, that X should obtain judicial review while Y should not.
All said and done, the Constitution, 2010 has given impetus to the growth of the concept of judicial review in Kenya. The Constitution codified an emerging trend under which Kenyan courts had steadily expanded locus standi to include all persons who have a legitimate cause to file suit. This expanded locus standi includes; the aggrieved person, representative standing, associational standing and public interest litigation. In addition, in a new wave of what may be interpreted as judicial activism, many bodies, including private bodies have been subjected to the judicial review process and the workings of Parliament and the Executive have not been exempt from this.