[2013] KEHC 2752 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PETITION NO 466 OF 2012

(as consolidated with Petition No. 416 of 2012)

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BETWEEN

JWI…………………………….……............................….1ST PETITIONER

AND

STANDARD GROUP LIMITED..................................1ST RESPONDENT

NATION MEDIA GROUP LIMITED............................2ND RESPONDENT

RULING

Introduction

1. The Consolidated Petitions herein relate to publications run by the 1st Respondent, The Standard Media Group in its newspaper, “The Standard” and the Nation Media Group in its newspaper, “The Daily Nation”, on 21st February, 2007

2. The Petitioners have lodged the Petitions on behalf of six minors, claiming a violation of their constitutional rights; to be protected from inhuman and degrading treatment; to privacy and to human dignity as enshrined in Articles 29, 31 and 28 of the Constitution, 2010, respectively.

Factual Background

3. The Petitioner in Petition No. 466 of 2012,JWI is the sister to one, SM (deceased). She has filed this Petition on behalf of EWCW and Michael K, all minors and children of the said SM (deceased). This Petitionarises out of a publication by the Standard Media Group in “The Standard”, where it had run a story detailing the killing of the late SM, a man the police had described as a most wanted criminal under the headline; 'Chilling Reality'. Along the story, the 1st Respondent had allegedly published photos/images of RW who was the wife of the late SM together with images of six children namely DN, AM, EWM, CWM and MKM (all minors) who stood beside here.

4. The Petitioner in Petition No. 416 of 2012, TMK, is the sister of one FW (deceased) who was said to be the wife of SM. She has brought this Petition on behalf of RW, DN and AM, (all minors). The Petition arises out of a story published by the Nation Media Group, in its newspaper, “The Daily Nation” under the headline, 'Death of a Gangster; detailing the killing of the late SM. On page 3 of that newspaper, there appeared pictures of AM and DN aforesaid under a headline titled 'The agony of being the wife of a wanted man'. On Page 5 thereof, it depicted images of the child, AM, sitting close to a police officer holding a rifle and had the narration, 'Matheri's three years' old daughter examines a rifle barrel unaware that her father SMI had been shot dead...'In another edition of the said newspaper, dated 22nd February 2012, the 2nd Respondent published the photos of the minors, AM, DN and RW together with their mother, FW, and juxtaposed them with the images of M and under the headline 'Police: Matheri family to remain in custody'. Further, in its publication of 25th February 2007, the 2nd Respondent published a story entitled'...leaflets target Matheri's close relatives' alongside pictures of the minor, DN, reading the “Nation” newspaper with the narration '...one of Matheri's sons goes through a copy of the 'Nation' that reported his father's killings'.

5. The Petitioners take issue with those publications. They allege that the published stories, narrations and images were highly offensive and severely embarrassing to the minors as they prejudiced their innocence and psychological integrity. They further assert that the actions of the Respondents to publish the said stories, pictures and narrations were calculated, intentional, reckless and negligent since they failed to give due consideration to the general interests of the children and safeguard their constitutional rights to privacy and dignity, thus prejudicing their reputation, development and growth.

6. On 29th November 2012, when this matter came up for hearing before me, I directed that the Amended Petition dated 8th November 2012 and the further Amended Petition dated 21st November 2012 in respect of Petition No. 416 of 2012 and the Amended Petition dated 26th October 2012 in respect of Petition No. 466 of 2012 be struck off and be expunged from the record as they were filed without leave. It was at that point that Mr. Maingi, advocate for the Petitioners sought leave to amend the Petitions. However Mr. Abidha for the 1st Respondent sought to first argue the Preliminary Objection dated 20th December 2012 before any amendment to the Petitions could be undertaken. This Ruling is therefore in respect of that Preliminary Ojection.

The 1st Respondent's Submissions

7. In its Preliminary Objection dated 20th December 2012, the 1st Respondents argues that the Constitution, 2010 is not retrospective in its application and its provisions do not apply to matters that occurred before the effective date i.e. 27th August 2010. In that regard, Mr. Abidha for the Respondent referred the Court to the case of Samuel Kamau Macharia v Kenya Commercial BankLimited and 2 Others, Supreme Court Application No. 2 of2012. which I will make reference to later in the Ruling.

8. Mr. Abidha, further submitted that Articles 28 and 31 of the Constitution specifically provide for the right to human dignity and privacy, respectively, but that they cannot apply retrospectively. He referred the court to the case of B. A & Another v Standard Group Ltd (2012)e KLRwhere it was held that the right to privacy in the Constitution cannot apply retrospectively.

9. It was his conclusion therefore that since the events forming the subject matter of the two Petitions took place prior to the promulgation of the Constitution, then the rights invoked by the Petitioners cannot be enforced. He urged me to strike out the Petitions as filed.

Petitioners' Submissions

10. Mr. Maingi for the Petitioners opposed the Preliminary Objection. He submitted that there are no hard or fast rules regarding retrospectivity and that each case must be determined on its own merits. Like Mr. Abidha, he also relied on the Supreme Court case of Samuel Kamau Macharia v Kenya Commercial Bank (Supra) to argue that retrospectivity in matters filed under the Constitution must be treated differently from the manner in which it is dealt with in statutes.

11. It was Mr. Maingi's position that the Petitions are not solely based on Article 31, (the right to privacy) but also on Article 28, on freedom from inhuman and degrading treatment. He argues that this latter right was provided for under the Repealed Constitution and as such it was saved by the Sixth Schedule of the Constitution. In that regard he relied on the case of John Harun Mwau & Others v The Attorney General & Others Petition No. 123 of 2011,to support that proposition.

12. Mr. Maingi further contended that the peculiar facts of the Petitions necessitated that the same be heard on their merits as they involve minors and their best interest should be paramount and also that the Children's Act, the African Charter on Human and Peoples Rights and the United Nations Convention on the Rights of the Child which propagate that principle, had all been domesticated before the offending publications. It was therefore his submission that these Petitions can be given life by amendments so that they can be determined on merit.

He urged that the Preliminary Objection be disallowed for the above reasons.

Determination

13. The events forming the facts relating to these Petitions took place in 2007, before the promulgation of the Constitution, 2010. It is therefore clear that the single issue for determination is whether a person can seek to enforce fundamental rights which may not have been provided for by the Repealed Constitution and whether the “new” rights in the Constitution, 2010 can be applied retrospectively.

14. The Constitution, 2010, was promulgated on 27th August 2010 and it brought with it a new legal order which was effective from that date. Article 263 thereof provides that the Constitution shall take effect on the date of promulgation by the President while Article 264 provides that on the date of promulgation, the former Constitution, subject to the Sixth Schedule, shall stand repealed.

15. Section 19 of the Sixth Schedule which is relevant thus provides as follows;

“Until the Chief Justice makes the rules contemplated by Article22, the Rules for the enforcement of the fundamental rights and freedoms under section 84 (6) of the former Constitution shall continue in force with the alterations, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with Article 22. ”

With the above legal and factual background, I am aware that the issue raised in the Preliminary Objection is not new to our Courts. For example, in Joseph Ihugo Mwaura v Attorney General Nairobi Petition No. 498 of 2009 it was held that the Constitution, 2010 can only validate what was otherwise legal and in place during the currency of the Repealed Constitution.

16. Further, in Duncan Otieno Waga v Attorney General Petition No. 94 of 2011 the Court stated as follows;

“I do not read the provisions of the Sixth Schedule as entitling the Court to retrospectively apply the Constitution. The rights and obligations referred to are preserved to the extent that they can be enforced but determination of the nature and extent of those rights and obligations are determined in accordance with the legal regime existing at the time the right or obligation accrued. The acts of the respondent in relation to the petitioner must therefore be construed by reference to the former Constitution particularly Section 82 which prohibits discrimination. Counsel for the petitioner has also referred to the provisions of Article 23(1) and 165 which read together entitle any person to apply to the court for redress where his or her fundamental rights and freedoms are threatened, violated or infringed. These provisions entitle this court to adjudicate violations of the Constitution but they do not empower the court to apply the Constitution retrospectively.”

InSamuel Kamau Macharia case (supra) the Supreme Court stated that;

“If the words used in a particular provision are forward looking, and do not contain even a whiff of retrospectivity, the Court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution”.

17. In order to address my mind to the question at hand and with the above authorities as a guide, I should begin by stating that the best definition I have found on retrospectivity is in Shroud's JudicialDictionary of Words and Phrases Vol.3 where it is stated thus;

“Nova constitutio faturn forman imporere deber, non” i.e. unless there be clear words to the contrary, statutes do not apply to a past but to a future, state of circumstances”(emphasis mine)

18. Regarding particularly the retrospectively of rights contained in the Bill of Rights, the wide differences in approach and the debate on the issue is best exemplified in “Constitutional Law of SouthAfrica”, 2nd Edition by Stuart Woolman, where the author analysed the jurisprudence on the issue as enacted in Du Plessis vsDe Klerk & Anor CCT 8/95 [1996] ZACC 10 and Khumalo vsHolomisa [2002] (5) SA 401,(CC), 2002 (8) BCLR 77 CCC.Of interest to this Court is Du Plessis whose facts were as follows; Sometime in 1993, the“Pretoria News” a South African publication, ran a number of articles touching on alleged supply of arms by South Africa to UNITA, a guerilla freedom movement in Angola. It was suggested that Du Plessis which owned private airstrips and planes in South Africa was working in cahoots with the Government of South Africa, specifically the Department of Foreign Affairs, to fuel the Angolan War in which UNITA was an active participant.

19. Du Plessis instituted a civil suit claiming that the articles were defamatory and the Defendants in response denied the claim. In October 1994, after the Interim Constitution of South Africa had come into effect, the Defendants sought leave to amend their Statement of Defence to raise the claim under Section 15 of the Interim Constitution that the right of freedom of expression had afforded them a new defence.

20. The Constitutional Court of South Africa, by a majority decision, held that the substantive provisions of the Bill of Rights of the Interim Constitution were not in general, capable of application to any legal relationship other that that between legislative or executive organs of state at all levels of Government, and natural or juristic persons. In particular, that Section 15of the Interim Constitution regarding freedom of expression, could not be invoked to suggest that conduct that was unlawful before the Constitution came into effect, could be deemed to be lawful by reasons of the Bill of Rights having introduced such a right. But Kentridge J. in that case did not close the door to situations where an exception to the general rule could be invoked. He argued as follows;

“The consequences of that general rule, are however, not invariable … we leave open the possibility that there may be cases where the enforcement of previously acquired rights would; in the light of our present constitutional values, be so grossly unjust and abhorrent that it could not be possibly countenanced, whether as being contrary to public policy or some other basis upon. It is not necessary to give examples. It is sufficient to say that cases such as the one before us obviously do not fall into that category.”

Woolman, above then wrote as follows in that regard;

“The truly interesting developments with respect to retrospectivity have not involved a direct constitutional challenge to the rule of law in order to make unlawful conduct lawful or offensive laws unconstitutional. They have, rather, involved the use of the concept of indirect application of the Bill of Rights to develop common law in such a manner as to make unlawful conduct lawful or offensive always unconstitutional.”

21. Further that, “At the outset, it is important to note that a Constitution is not necessary subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object rendering political goods. In this way, a Constitution may and does embody retrospective provisions or provision with retrospective ingredients”

22. How are all the above authorities applied to the present case? As can be seen from the Petitions, it is Article 28 and 31 of the Constitution that are invoked to seek reliefs. I have perused the Repealed Constitution and Section 76 thereof provided as follows;

“(1)Except with his own consent, no person shall be subjected Protection against to the search of his person or his property or the entry by others on his arbitrary search or premises.

(2)Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a)that is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources, or the development or utilization of any other property in such a manner as to promote the public benefit;

(b)that is reasonably required for the purpose of promoting the rights or freedoms of other persons;

(c)that authorizes an officer or agent of the Government of

Kenya, or of a local government authority, or of a body

corporate established by law for public purposes, to enter on the premises of a person in order to inspect those premises or anything thereon for the purpose of a tax, rate or due or in order to carry out work connected with property that is lawfully on those premises and that belongs to that Government, authority or body corporate, as the case may be; or

(d)that authorizes, for the purpose of enforcing the judgment or order of a court in civil proceedings, the entry upon premises by order of a court.

And except so far as that provision or, as the case may be anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

Article 31of the Constitution, 2010 on the other hand provides as follows;

“Every person has the right to privacy, which includes the

right not to have—

(a) their person, home or property searched;

(b) their possessions seized;

(c) information relating to their family or private affairs

unnecessarily required or revealed; or

(d) the privacy of their communications infringed. ”

23. It is obvious to me that Article 31 is wider in language, tenor and import then Section 76 aforesaid but the rights conferred by both are borne of Article 12 of the Universal Declaration of Human Rights which provides as follows;

“No one shall be subjected to arbitrary interference with his privacy family home, or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”

24. I have no doubt in mind that looking at the law as set out above, the right conferred by Article 31 has been properly invoked by the Petitioner and the same is not retroactive as it existed prior to the Constitution, 2010 and was certainly saved by Section 19 of Schedule 6 of the Constitution. I will say something about the UDHR shortly in buttressing that point, shortly.

25. Regarding the right to human dignity under Article 28 of the Constitution 2010, Section 74of the Repealed Constitution provided that;

“No person shall be subject to torture or to inhuman or degrading punishment or other treatment”

26. It is the argument by the Petitioners that the said provision covers the same right as Article 28 but that is not so. In fact Section 74 of the Repealed Constitution is partly reproduced in Article 29 which provides for freedom from slavery, servitude and forced labour.

27. The above fact notwithstanding, the right to human dignity has been recognised as the basis of fundamental rights and the Universal Declaration of Human Rights in its Preamble states that;

“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

28. In the context of the issue under consideration, human dignity need not be pleaded as a right for it to be enforced because it is inherent and together with the right to life, they form the basis for all other rights to be enjoyed by a human being qua human being. I need not say more.

29. In the Petition before me, the issue of the rights of children has also been raised but that issue is too narrow to be addressed and this point and in the manner it was argued. Human dignity is a more fundamental issue and that is why in Article 20of the Constitution, 2010 it is one of the values that must be promoted in the interpretation of the Constitution.

30. In addition, Samuel Macharia, (supra) the Supreme Court set the parameters for applying the restrospectivity principle and from my analysis above, there is no doubt that the issues raised in the Petitions are not barred by the doctrine of retrospectivity as I understand it and as I have applied it above.

31. One other issue that I must address in passing is that our Courts are yet to fully inteprete Articles 2(5) and (6) of the Constitution which provide as follows;

“1) ...

(2)...

(3)...

(4)...

(5)The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. ”

32. Because parties did not fully address me on the issue, at this stage, all I can say is that these are not idle provisions and my deliberate linkage of our Bill of Rights with the Universal Declaration of Human Rights 1948 is a pointer to where my mind is drifting to and I am sure sometime in the future, a wholesome interpretation shall be rendered.

33. In the instant, I have answered the sole question whether the Petitioners can now enforce the fundamental rights and obligations that may not have been provided for under the Repealed Constitution.

Conclusion

34. Having perused the intended Amended Petitions and for the above reasons, i do not think that they are moot. I agree with Mr. Maingi that the Petitions can be given life by an amendment. In the circumstances, and in the the interests of justice and bearing in mind that in cases involving children, the law is clear that their best welfare must override all other interests, I will allow the Petitioners to amend their respective Petitions as they deem fit within fourteen (14) days of today. I do not see how the Respondents will be prejudiced by such an amendment as they wil have an opportunity to respond to the amendments.

35. The Preliminary Objection is therefore overruled but costs shall abide the hearing and determination of the Petitions upon amendment.

36. Orders Accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2013

ISAAC LENAOLA

JUDGE

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