[2022] KEHC 17248 (KLR)

Community Animal Welfare and Development Organization & another v Attorney General (Constitutional Petition 12 of 2019) [2022] KEHC 17248 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17248 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition 12 of 2019

SN Mutuku, J

December 15, 2022

IN THE MATTER OF ARTICLES 19,20,21,22,23,43,46,48 and 259(1) OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS UNDER ARTICLES 43 AND 46 OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDERMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013

Between

Community Animal Welfare and Development Organization

1st Petitioner

Kiserian Donkey Transporters Group

2nd Petitioner

and

Attorney General

Respondent

Judgment

Introduction 1. The 1st Petitioner is a Community Based Organization that was duly registered under the Ministry of East Africa Community, Labour and Social Protection while the 2nd Petitioner is a self-help group that was registered under the Ministry of Labour, Social Security and Services. The Respondent is Attorney General, the Legal Advisor to the Government, established under the Provisions of Article 156 of the Constitution of Kenya 2010.

Petitioners Case 2. The Petitioners’ case is that on or about 16th July, 2010, through Legal Notice No. 110 of 2010, the Meat Control (Local Slaughterhouse) Regulations 2010 came into force. These Regulations amended section 2 of the Meat Control Act, Chapter 356 of the Laws of Kenya, thereby amending the description of “red meat” to include meat from horse and donkey as fit for human consumption.

3. That between the years 2014 and 2018 the Government of Kenya allowed 6 slaughterhouses to be issued with licenses permitting them to slaughter donkeys within the Republic of Kenya. The said slaughterhouses are Goldox (Kenya) Limited based in Mogotio, Baringo County; Star Brilliant Limited based in Naivasha, Nakuru County; Silzha Limited based in Lodwar, Turkana County and Fuhai Machakos Trading Company Limited based in Kithyoko in Machakos County.

4. The Petitioners argue that this legalization has increased the demand for donkey skin which is mainly exported to China and that this has consequently led to many cases of theft and slaughter of donkeys inside and outside the slaughterhouses and has resulted in many donkey owners losing their source of income.

5. They argue that the public participation ought to have been applied by the Government of Kenya especially among the stakeholders before the enactment of the Legal Notice No. 110 of 2010 and that this action by the Government of Kenya has violated the constitutionally enshrined rights of donkey owners and their dependants.

6. They contend that their economic, social and consumer rights under Article 22 of the Constitution have been grossly violated by the Government of Kenya through the legalization of donkey meat and skin which has had a negative impact on their livelihood.

7. The Petitioners seek the following orders:i.A declaration that the amendment to section 2 of the Meat Control Act vide Legal Notice No. 110 of 2010 that included the donkey as a “food animal” is invalid and unconstitutional and is a violation of Articles 43 and 46 of the Constitution of Kenya 2010. ii.A declaration that the trade in donkey meat and skin within the boarders of the Republic of Kenya is consequently therefore unconstitutional and should be banned with immediate effect.iii.A declaration that all the donkey abattoirs within the Republic of Kenya be shut down with immediate effect.iv.Any other suitable order that this Honourable Court may deem fit and just to give.v.Cost of this petition.

Respondent’s case 8. The Respondent opposed the Petition through grounds of opposition dated 12th September, 2019 on the grounds that:i.The petitioners have failed to demonstrate how the Respondent’s conduct constitutes a violation and/or contravention of their fundamental rights and freedoms.ii.That there is a general presumption that every Act of Parliament is constitutional.iii.That the circumstances of public involvement vary in each case. What matters at the end of the day is that a reasonable opportunity is offered to the members of the public and all interested parties to know about the issues and to have an adequate say.iv.That the Constitution assures Kenyans of the right to be free from hunger and to have adequate food of acceptable quality, protection for human health and attainment of the highest standards of health. It assures consumers of goods and services of reasonable quality and access to information necessary for them to gain full benefit for the necessary protection of their health, safety and economic interest.v.That in Kenya, Food animals include cattle, sheep, goats, pigs, poultry, rabbits, camels, donkeys, bees, fish, other aquatic animals and emerging livestock. They provide human-kind with animal derived proteins, carbohydrates, fats and minerals that are key requirements for nutrition and food security. Animal by-products provide dressing, manure fertilizers, feedstuffs, ornaments, musical instruments, adhesives, beddings, medicine, perfumes and polish among others. Animal products are also marketed thus earning income and contributing to the national economy.vi.That the Ministry of Agriculture, Livestock and fisheries has put in place a policy framework to facilitate enhanced and sustainable development of the animal resources industry.vii.That the Veterinary Public Health Division is charged with the responsibility of inspection and certification of food of animal origin namely meat and meat products, milk, honey and eggs as well as animal feeds. It approves establishments for meat and meat products and milk processing plants for purposes of local and international trade.viii.That the Ministry of Agriculture, Livestock and Fisheries and the Veterinary Public Health Division therefore have acted according to the Law.ix.That the Petition is frivolous, vexatious, incompetent and improperly before court and an abuse of the court process.

Submissions 9. This Petition was canvassed through written submissions. The 1st and 2nd Petitioners filed their submissions dated 19th November, 2021 in which they have reiterated the contents of the Petition. They have emphasized that there was lack of public participation by the Government before the enactment of the Legal Notice No. 110 of 2010 which amended the Meat Control Act; that the legalization has violated the constitutionally- enshrined rights of the donkey owners and their dependants and that the Government of Kenya should go back to the drawing board and ban the trade in donkey meat and skin.

10. The Respondents filed their submissions dated 4th November, 2019 and submitted on two issues, firstly, whether there was public participation before enactment of the Legal Notice Number 110 of 2010 and secondly, whether the amendment of Section 2 of the Meat Control Act, Chapter 356 of the Laws of Kenya by Legal Notice No. 110 of 2010 is unconstitutional.

11. On the first issue, the Respondent argued that the issue of public participation is enshrined in the constitution as an essential constitutional obligation that has to be observed prior to enactment of any legislation. They relied on National Land Commission Supreme Court Advisory Opinion No. 2 of 2014 where Chief Justice Dr. Willy Mutunga, as he then was, stated that:“In the history of constitution-making in Kenya, the participation of the people was a fundamental pillar. That is why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, ad then defining a new social, economic, political and cultural order for themselves. It is, indeed a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the sovereign will of the Kenyan population. Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority is derived from the people of Kenya, is the indestructible fidelity to the value and principle of public participation.”

12. The Respondent argued that Articles 110 (2) and 232 (1) (d) of the Constitution provide for involvement of the people in policy making as one of the National values and principles of governance and that Article 95 (1) and (2) of the Constitution mandates the National Assembly and the Senate to represent the people ad to deliberate on and resolve issues of concern to the people; that the circumstances of public involvement in each case vary; that in the instant case members of the public are consuming donkey meat, which is fit for human consumption, without any problem and that the allegation that there was no public participation is unfounded. The Respondent relied on Nairobi Metropolitan PSV Sacco Union Limited & 25 Others-vs- County of Nairobi Government & 3 others [2013] eKLR where the Court observed that:“The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

13. The Respondent further cited Richard Dickson Ogeno & 2 others -vs- Attorney General & 5 others [2014] eKLR where the issue for determination was whether the provisions of the Statutory Instruments Act, 2013 were complied with in respect to public participation in enacting the Traffic Breathalyzer Rules, 2011. The court stated thus:“I decline to invalidate the Rules on account of lack of public participation on the ground that I am also required to give effect to other values of equal importance like good governance and the need to the human rights of others particularly those who are at risk of loss of life and property through road carnage arising from drunk driving.’’

14. On the second issue, the Respondent submitted that there is a general presumption that every Act of Parliament is constitutional. The Respondent cited Were Samwel & 14 others -vs- Attorney General & 2 others [2017] eKLR where the court stated as follows:“32. There is also a general but rebuttable presumption of constitutionality of a statute. The presumption is that courts should presume the statute or statutory provision to be constitutional unless the contrary is established, and that it is the duty of the person who alleges that a statute or statutory provision is unconstitutional to prove such unconstitutionality.”

15. It was submitted that the issues raised by the Petitioners that legalization of donkey meat has resulted in rampant theft of donkeys and illegal slaughters involving stolen donkeys are criminal acts and they should make complaints to the relevant authority and have the same investigated.

Analysis and Determination 16. For purposes of determination of this Petition I will adopt the two of the issues framed by the Respondent and add a third issue giving me the following issues for determination:i.Whether there was public participation before enactment of the Legal Notice No. 110 of 2010. ii.Whether the amendment of section 2 of the Meat Control Act, chapter 356 of the laws of Kenya by Legal Notice No. 110 of 2010 is unconstitutional.iii.Whether the enactment of the Legal Notice No. 110 of 2010, which amended the Meat Control Act declaring donkey meat fit for human consumptionviolated the rights of donkey owners.Whether there was public participation before enactment of the Legal Notice No. 110 of 2010.

17. Issues Nos.1 and 2 are tied together. It is because of alleged lack of public participation that the petitioners are claiming that the amendment of section 2 of the Meat Control Act is said to be unconstitutional.

18. Public participation is one of the national values and principles in the Constitution of Kenya 2010, under Article 10 (2) (a). The Constitution commands all persons, state organs and public officers to observe National Values while exercising their responsibilities.

19. Article 10(1) and (2) (a) of the Constitution states: -The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—(a)applies or interprets this Constitution;(b)enacts, applies or interprets any law; or(c)makes or implements public policy decisions

20. Public participation is defined under the Statutory Instruments Act No. 23 of 2013 under section 2 in the following terms:“public participation" means involvement by the regulation-making authority of persons or stakeholders that the statutory instrument may directly or indirectly apply to.

21. The same Act, under section 5 (1) states as follows in respect of public participation:(1)Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—(a)have a direct, or a substantial indirect effect on business; or(b)restrict competition; the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.

22. A “Regulation” is one of the categories of statutory instruments specified under section 2 of the Act.

23. It is therefore clear to me, and I agree with the petitioners, that public participation or participation of the people, is an integral part of policy or decision making and implementation. But it is not enough to cite the law beautiful as the law may be. A party approaching the court on claims that State organs, State officers and public officers failed to comply with the law in allowing public participation must demonstrate, through cogent and credible evidence, that this is the case.

24. Indeed, the law commands that he who alleges must prove. The onus lies on the petitioners to demonstrate that there was no public participation; that their rights have been violated as a result of the amendments resulting from the impugned Regulations and that section 2 of the Meat Control Act, chapter 356 of the laws of Kenya by Legal Notice No. 110 of 2010 is unconstitutional.

25. Section107 of the evidence Act provides that:i.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.ii.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

26. The Court of Appeal in the case Mbuthia Macharia v Annah Mutua & Another [2017] eKLR discussed the burden of proof and stated thus:“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant.”

27. I have read the Petition. In paragraphs 10 and 11 of the Petition, the petitioners state as follows:10. The doctrine of public participation ought to have been applied by the Government of Kenya especially amongst stakeholders (such as the donkey farmers such as the petitioners), animal rights activists, animal welfare organizations before the enactment of the Legal Notice Number 110 of 2010, which amended the Meat Control Act, thereby declaring the meat from a donkey as fit for human consumption.

11. It is evident therefore that the Government of Kenya did not engage the stakeholders before it amended Cap 356 aforementioned and much as the Government of Kenya could be earning some sizeable revenue from China for the export of meat and skin it is evident that the legalization of the trade in donkey meat and skin has violated the constitutionally enshrined rights of the donkey owners and their dependants.

28. It is upon the Petitioners to adduce evidence in support of their case as stated above to pave the way for the Respondent to adduce evidence in rebuttal in the ever-shifting evidential burden.

29. This Petition was canvassed through written submissions. I have read the submissions of the petitioners. It is evident that the submissions touching on the allegation of lack of public participation is copied word for word from paragraphs 10 and 11 quoted above. There is evidence adduced to demonstrate that there was no public participation.

30. The petitioners had a duty to demonstrate what the Respondent, through the State organ or State officers or Public officers concerned, ought to have done but failed to do to bring their claim within the Petition; what steps or actions were those concerned supposed to do to allow for public participation by stakeholders? This question has not been answered. It is also not clear whether the petitioners come to court as donkey farmers as stated in paragraph 10 of the Petition or as self-help group as they described themselves.

31. The petitioners were expected to demonstrate, further, that they were “persons or stakeholders that the statutory instrument may directly or indirectly apply to. Its not enough to say that they are donkey farmers or a self-help group. They must demonstrate how they fit in the ambit of person or stakeholders that that the regulations directly or indirectly apply.

32. Courts of law work with the materials presented to them by the parties. It is the parties that appear before the courts that must adduce sufficient evidence in support of their case to persuade the court to rule in their favour. It would be a travesty of justice for the court to step in and fill the gaps left out in the parties’ pleadings. Courts of law must not descend to the arena lest they be accused of aiding one party at the expense of the other party or taking sides instead of remaining as the impartial arbiter.

33. The Respondent on the other hand did not help much. The Respondent did not adduce evidence in rebuttal although there was nothing to rebut given that the petitioners have failed to adduce evidence to support the allegation of public participation other than citing the law on public participation.

34. On this issue I find that the petitioners have failed to adduce evidence in support of their case. The petitioners have failed to prove, on a balance of probabilities that there was no public participation or that they are stakeholders that the regulations directly or indirectly apply.Whether the amendment of section 2 of the Meat Control Act, chapter 356 of the laws of Kenya by Legal Notice No. 110 of 2010 is unconstitutional.

35. As I stated above in this judgment, this issue is tied together with the first one. Having found that evidence is lacking to prove on a balance of probabilities that there was no public participation, the amendment of section 2 of the Meat Control Act cannot be said to be unconstitutional. This is because according to the arguments by the petitioners, the unconstitutionally of section 2 of the Meat Control Act was pegged on failure to conduct public participation.

36. In Commission for the Implementation of the Constitution vs Parliament of Kenya & 2 others, the Court stated that:“Declaring a statute as unconstitutional, needless to say, is a serious issue with deep-seated ramifications and the court should not be overly enthusiastic in pronouncing so unless clear grounds known in law have been clearly established."Whether the enactment of the Legal Notice No. 110 of 2010, which amended the Meat Control Act declaring donkey meat fit for human consumption violated the rights of donkey owners.

37. The Petitioners argued that their economic, social and consumer rights have been greatly violated through the legalization of the trade in donkey meat and skin because it led to increased theft and killings of the donkeys leading to loss of the petitioners’ primary source of livelihood. They argued that this was in violation of Article 21(2), 43 and 46 of the Constitution.

38. Article 21(2) provides that:The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43.

39. Article 43 provides that:(1)Every person has the right—(a)to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;(b)to accessible and adequate housing, and to reasonable standards of sanitation;(c)to be free from hunger, and to have adequate food of acceptable quality;(d)to clean and safe water in adequate quantities;(e)to social security; and(f)to education.(2)A person shall not be denied emergency medical treatment.(3)The State shall provide appropriate social security to persons who are unable to support themselves and their dependants39. Article 46 provides that:(1)Consumers have the right—(a)to goods and services of reasonable quality;(b)to the information necessary for them to gain full benefit from goods and services;(c)to the protection of their health, safety, and economic interests; and(d)to compensation for loss or injury arising from defects in goods or services.(2)Parliament shall enact legislation to provide for consumer protection and for fair, honest and decent advertising.(3)This Article applies to goods and services offered by public entities or private persons.

40. I am unable to follow the petitioners’ argument on the breach of economic and social rights under Article 43. This is because their main argument is that the enactment of the Legal Notice No. 110 of 2010 has led to theft and killings of donkeys and that this has affected their primary source of livelihood. They have not specifically proved how their source of livelihood has been affected. The Respondent on this issue argued that the theft and killing of donkeys is a criminal act and the same should be reported to the relevant authorities for action.

41. In my considered view I do not see how the enactment of the said notice breached the petitioners’ rights under Article 43 and 46 especially with regards to the theft and killings of donkeys. The petitioners have not demonstrated the relationship between the enactment of the Legal Notice and the theft and killing of the donkeys. They just made statements on the same and no proof was adduced to this effect.

42. Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR the learned Judge stated that:“Courts have over the years established that for a party to prove violation of their rights under the various provisions of the Bill of Rights they must not only state the provisions of the Constitution allegedly infringed in relation to them, but also the manner of infringement and the nature and extent of that infringement and the nature and extent of the injury suffered (if any.”………………..“Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd:-“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”

43. Further, in Christian Juma Wabwire v Attorney General [2019] eKLR, the Judge relied on the decision in Lt. Col Peter Ngari Kagume and 7 others v AG, Constitutional Application No. 128 of 2006 where it was held that:“It is incumbent upon the Petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The Petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… the court is deaf to speculation and imaginations and must be guided by evidence of probative value. When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the Petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened….."

44. I am persuaded by the above authorities. The petitioners herein have the onus of proving their case. They have not demonstrated they own donkeys and that those donkeys were stolen as a consequence of legalizing donkey meat. If theft of donkeys increased after this legalization, there is no evidence to support that allegation. No evidence of report to the police and the investigations into the matter. There is no evidence to show that the petitioners’ owned donkeys and that these were stolen and that the stealing was a consequence of the amendment of section 2 of Meat Control Act. They have not provided tangible and credible evidence to support allegations of violations of their constitutional rights.

45. I therefore find the Petition lacking in merit. The petitioners have failed to prove their case to the required standard. Consequently, the Petition is hereby dismissed with costs.

46. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 15THDAY OF DECEMBER, 2022. S. N. MUTUKUJUDGE7| Judgment in Kajiado Constitutional Petition No. 12 of 2019