[2017] KEHC 8985 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 312 OF 2015

IN THE MATTER OF ARTICLES 2, 19, 20, 23, 24, 33 AND 34 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF ARTICLES 9 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS

AND

IN THE MATTER OF ARTICLE 19 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

AND

IN THE MATTER OF SECTIONS 194 AND 195 OF THE PENAL CODE, CHAPTER 63, LAWS OF KENYA

BETWEEN

KURGAT MARINDANY……………………….…. ................................PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS.........……..…..1SR RESPONDENT

HON. ATTORNEY GENERAL .........................................….…2ND RESPONDENT

HARSAMA KELLO................................................................3RD RESPONDENT

AND

ARTICLE 19 OF EAST AFRICA………………………..........…INTERESTED PARTY

JUDGEMENT

On 6th February 2017, this court pronounced itself in Petition Number 397 of 2016 and issued a declaration that section 194 of the Penal Code,[1] is unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33 (2) (a)- (d) of the Constitution of Kenya 2010; and also issue a declaration that the continued enforcement of Section 194 of the Penal Code,[2] by the First Respondent herein is unconstitutional and/or a violation of the accused persons' fundamental right to the freedom of expression guaranteed under article 33 (1) (a)-(c) of the Constitution of Kenya 2010.

To the best of my knowledge, the said decision has never been appealed against, varied or set aside, hence the decision still stands. Also, it is significant to point out that the Director of Public Prosecutions on or about 22nd February 2017 or thereabouts in a communication highly publicised in the local medial directed to all state prosecutors and copied to other relevant institutions involved in the administration of criminal justice in clear terms stated inter alia that had appointed a team of senior prosecutors to review the judgment and advise whether there are grounds to appeal and proceeded to state that:-[3]

“In the meantime, I direct that all criminal cases that are pending before court wherein accused persons are charged under Section 194 of the penal code (offence of criminal libel be withdrawn under Section 87(a) of the criminal procedure code (Cap 75) laws of Kenya,” said the DPP.

“Further, henceforth no charges shall be preferred against any person under the invalidated law, until and unless the said judgement has been reversed or set aside by an Appellate Court,” read the statement."

The above communication was publicised in the local media and the directions given are clear. No appeal has been preferred against the said decision and one wonders why criminal case number 501of 2015, Kajiado Principal Magistrates Court, Republic vs. Kurgat Marindanythe subject of this petition has not withdrawn as directed by the DPP. Even without being directed as aforesaid, it's sad to note that on the face of the clear court determination referred to above the prosecutor handling the said case insists on proceeding with the case, more than five months since the provisions of the law were declared unconstitutional.

I also strongly hole the view that even the trial court on its own motion, without waiting to be moved, could have, on the face of such a clear determination suo moto terminate the proceedings in question perfectly in exercise of its judicial authority.

By insisting on proceeding with a criminal trial premised on a provision of the law that has been declared to be unconstitutional renders the proceedings a nullity and raises fundamental questions as to the whether or not the entire proceedings are actuated by malice, bad faith or abuse of judicial powers. It also reflects badly on both the trial court and the office of the DPP whose functions are clearly stipulated in the constitution and raises serious constitutional questions on the constitutional mandate of the judiciary and the office of the DPP to respect and observe the doctrine of the Rule of Law and the manner in which the two institutions are required to perform their duties within the confines of the constitution and in a manner that promotes nd applies the purposes, value and principles of the constitution.

It must be remembered that court orders must be obeyed at all times in order to maintain the rule of law and good order. This of course means that the authority and dignity of our courts must be upheld at all times and this differentiates civilized societies from those applying the law of the jungle. It is the duty of the Court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with approved contemnors.[4]

The Court does not, and ought not to be seen to make orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.[5]

A Court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with. I shudder to think of the place of our judicial system if public officers are left to freely decide what court orders to obey and which ones to ignore. Public officers must realize that once they are brought to court they are subject to the jurisdiction of the Court.

Under Article 159(1) of the Constitution, Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. In exercising judicial authority the Courts and Tribunals are, inter alia, to be guided by the principle that the purpose and principles of the Constitution shall be protected and promoted. Under Article 10(1) of the Constitution the national values and principles of governance in the Article bind all State organs, State officers, public officers and all persons whenever any of them (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. Under clause (2)(a) of the same Article the national values and principles of governance include the rule of law.

The Constitution is not a mere collection of pious platitudes. It is thesupreme law of the land embodying basic concepts among them Fundamental Rights and Freedoms of the Individual which not even the power of the State may encroach.[6] The World Justice Project's definition of the rule of law is comprised of the following four universal principles:-[7]

1. The government and its officials and agents as well as individuals and private entities are accountable under the law.

2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.

3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

These four universal principles constitute a working definition of the rule of law. The rule of law is the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.[8]

John Locke defined freedom under the rule of law as follows:-

"Freedom is constrained by laws in both the state of nature and political society. Freedom of nature is to be under no other restraint but the law of nature. Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others.[9]

Justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristics or merit or excellence, but simply as human beings.[10]

I have carefully studied the documents filed in this petition. It is clear that the petitioner is facing a charge grounded on section 194of the Penal Code[11] as read with section 36 of the Penal Code.[12] I have no doubt that the offence the petitioner is charged with in the criminal case referred to above is grounded on a provision of the law that has already been declared to be unconstitutional.

In all fairness, I find no reason to utilise valuable judicial time to determine a matter premised on a provision of the law which a court of competent jurisdiction has already made a determination on and expressly declared it as unconstitutional and the DPP himself directed his officers to withdraw such cases. It is a shame and unacceptable, arbitrary, oppressive and clear abuse of powers for the prosecution to continue persecuting the petitioner on a charge premised on a law that has been nullified by a court of competent jurisdiction.

This should not happen, ought not to happen and cannot be permitted to happen under any circumstances nor can it be permitted to happen in a modern democratic society like Kenya which is governed by a modern transformative constitution.

The starting point is that Human rights enjoy a prima facie, presumptive inviolability, and can only be limited as provided under the constitution. Period. Louis Henkin wrote in The Age of Rights:-[13]

"Government may not do some things, and must do others, even though the authorities are persuaded that it is in the society’s interest (and perhaps even in the individual’s own interest) to do otherwise; individual human rights cannot be sacrificed even for the good of the greater number, even for the general good of all. But if human rights do not bow lightly to public concerns, they may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary."

Every act of the state and its organs must pass through the test of constitutionality which is stated to be nothing but a formal test of rationality. In cases of violation of fundamental rights, the Court has to examine as to what factors the court should weigh while determining the constitutionality of the actions complained of. The court should examine the case in light of the provisions of the Constitution. When the constitutionality of an act of state agents is challenged on grounds that it infringes a fundamental right, what the court has to consider is the “direct and inevitable effect” of such actions. In my view, actions that infringe on fundamental rights unless they can be demonstrated to fall within exceptions under article 24 of the constitution are out rightly unconstitutional.

On the It is my conclusion that the purported continued prosecution of the petitioner in Kajiado Criminal Case Number 501 of 2016 on charges founded on a provision of the law that has been prima facie declared unconstitutional by the High Court is out rightly unconstitutional. On this, I find and hold that this petition succeeds. Consequently, I allow this petition and enter judgement as prayed in the petition in terms of the following declarations:-

1. A declaration be and is hereby issued that section 194 of the Penal Code, cap 63, Laws of Kenya is unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33 (2) (a)- (d) of the Constitution of Kenya 2010; as was held in Petition No. 397 of 2016.

2. Thata certified copy of the judgement rendered in Petition NO. 397 of 2016 be supplied to the trial Magistrate in Kajiado Criminal case No. 501of 2015.

3. A declarationbe and is hereby issued that the continued enforcement of Section 194 of the Penal Code, Cap 63, Laws of Kenya by the DPP against the petitioner herein is unconstitutional, and/or a violation of the petitioner's fundamental right to the freedom of expression guaranteed under article 33 (1) (a)-(c) of the constitution of Kenya 2010.

4. Thatthe continued prosecution of the petitioner in criminal case number 501 of 2015 grounded on alleged offences created under section 194 of the Penal Code which provision was declared unconstitutional by the High Court amounts to abuse of prosecutorial powers by the DPP, hence the said proceedings are unfair, oppressive, and amount to harassment and a violation of the petitioners constitutional right.

5. An order of certioraribe and is hereby issued to quash the proceedings in Kajiado Principal Magistrates Court Criminal Case Number 501 of 2015, R. Kurgat Marindany.

6. An order of prohibitionbe and is hereby issued prohibiting the Respondents from charging or pursuing any charges premised on the facts relied upon in instituting the charges in Kajiado Principal Magistrates Court Criminal Case Number 501 of 2015, R. Kurgat Marindany.

7. Thata copy of this judgement be served upon the Director of Public Prosecutions.

8. Thatthe first and third Respondents shall bear the costs of this petition

Orders accordingly

Dated, Signed and Delivered at Nairobi this 12thday of July,2017

John M. Mativo

Judge

[1] Cap 63, Laws of Kenya

[2] Ibid

[3] http://sokodirectory.com/2017/02/prosecution-orders-withdrawal-of-all-criminal-libel-cases/

[4] See Awadh vs. Marumbu (No 2) No. 53 of 2004 [2004] KLR 458,

[5] See Ojwang, J (as he then was) in B vs. Attorney General [2004] 1 KLR 431

[6] In the case Lob Kooi Choon v Government of Malaysia, {1977}2 MLJ 187 Raja Azlan Shah FJ (as His Highness then was) held that the Constitution embodied three basic concepts; namely; the Rule of Law; Federalism; and Separation of powers

[7] https://worldjusticeproject.org/about-us/overview/what-rule-law

[8] The Oxford English Dictionary has defined "rule of law" this way:The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.

[9] Locke, John. Two Treatises on Government: A Translation into Modern English. ISR/Google Books, 2013, p. 117. Ebook ISBN9780906321690[1]

[10] Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1979)

[11] Supra

[12] Supra

[13] Louis Henkin, The Age of Rights (Columbia University Press, 1990) 4.