[2022] KEHC 17217 (KLR)

Mohammed v Ministry of Agriculture, Livestock and Fisheries & 4 others (Constitutional Petition 13B of 2021) [2022] KEHC 17217 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17217 (KLR)

Republic of Kenya

In the High Court at Malindi

Constitutional Petition 13B of 2021

SM Githinji, J

November 15, 2022

Between

Mahmoud Shalima Mohammed

Petitioner

and

Ministry of Agriculture, Livestock and Fisheries

1st Respondent

Attorney General

2nd Respondent

The National Assembly

3rd Respondent

The Senate

4th Respondent

Kenya Fisheries Service

5th Respondent

Judgment

1The Petitioner instituted this suit vide the Petition dated November 24, 2021 seeking the following reliefs; -a.A declaration do issue that the legislative process leading up to and including the enactment of the provisions of sections 42 (1) (a), (b), (e), (i), (j), (m) of theFisheries Management and Development Act, 2016 was fundamentally flawed and inconsistent with the mandatory requirements of Public participation under the Constitution and the various procedural and substantive safeguards provided thereunder, including the Statutory Instruments Act 2013 in relation to the antecedent Fisheries Management Development Bill, and are therefore void ab initio;-b.A declaration do issue that any bill or subsidiary legislation submitted to either house of parliament for consideration and approval that seeks to curtail or limit socio-economic rights under Article 43 of the Constitution without an accompanying Memorandum of competent Legislative Impact Statement denies, violates, infringes or threatens a right or fundamental freedom in the Bill of Rights and is presumably void under Articles 24 and 43 of theConstitution.c.The Court be at liberty to make such further or alternative declarations and Orders in accordance with each of its findings in relation to the allegations set forth in the Petition.d.Pending the hearing and determination of this Petition, this Honourable Court do grant appropriate interim relief.e.Costs of and/or incidental to this Petition be provided for.

The Petitioner’s Case 2The Petitioner is a resident of and with firm ties to Faza ward, Lamu East Constituency in Lamu County sufficiently versed with the facts and issues faced by indigenous artisanal/small scale fishermen and fisheries bordering the Indian Ocean within Lamu County and who are especially affected by the enactment and implementation of section 42 of the Fisheries Management and Development Act 2016; and brings the Petition on his own behalf and wider public interests.

3The Petitioner averred that in the wake of the Constitution 2010, there was a compulsory constitutional requirement for the state department of fisheries to justify it’s designation of each and every artisanal fishing gear it wanted to ban or render illegal in the context of Economic and Social Rights under Article 43 of theConstitution. Further that under Article 24 (1) of theConstitution, it was no longer open to the state to continue with the ban on fishing gear traditionally used by artisanal fishers without proper verifiable and accountable basis in light of Article 43 of the Constitution.

4The Petitioner further averred that the enactment of the Fisheries Management and Development Act 2016 sidelined him together with the Marine artisanal fishermen of Lamu, specifically section 42 of the Act. His claim is that Article 43 of theConstitution as read together with Article 24 (1) were disregarded to the extent that there was no public participation and there was lack of compliance with the constitutional safeguards framework provided under the Statutory Instruments Act 2013 prior to enactment of sections 42 (1), (a), (b), (e), (i), (j), (m) of the Fisheries Management and Development Act 2016.

5It was his averment that the enactment and implementation/enforcement of the aforestated impugned sections has denied marine artisanal fishermen of Lamu the use of their fishing gear necessary to sustain their livelihoods and on the basis of a ban without any prior disclosure of any probative scientific evidence. That the said ban is simply the continuation of previously existing ban since 2001 yet the Regulation 43 of the Fisheries (General) Regulations as read together with the imposition Management Measures, 2001 easily demonstrate that the fishing gear ban was effectively for inland fisheries in Lake Naivasha, Lake Victoria, Lake Baringo, Lake Turkana, Challa, Jipe and the dams of Tana and Tarkwell Rivers and not artisanal marine fishing.

6The Petitioner contends that artisanal fishing is the economic mainstay for Lamu County supporting incomes for 80% of the populations but the continued arrests of fishermen is not only inhumane but infringes on their rights.

Response to the Petition 7The 1st, 2nd and 5th Respondents filed a replying affidavit dated January 21, 2022 sworn by Daniel Mungai the Director General of the Kenya Fisheries Service under the State Department for Fisheries, Aquaculture and Blue Economy, the Ministry of Agriculture, Livestock, Fisheries and Co-operatives.

8He deponed that the need for conservation and preservation of the environment is of utmost concern and a constitutional obligation as set out under Articles 42 and 69 of theConstitution and it therefore outweighs the prayers and the claim presented by the petitioner.

9It was also stated that the fourth schedule of the Constitution of Kenya 2010 provides for the distribution of functions between the National Government and the County Governments and part 1 provides for the functions of the National Government. Further, paragraph 22 provides that the National Government shall be tasked with the role of protection of the environment and Natural Resources with a view to establishing a durable and sustainable system of development, including in particular; -a.Fishing, hunting and gathering;b.Protection of animals and wildlifec.Water protection, securing sufficient residual water; hydraulic engineering and the safety of dams; andd.Energy Policy

10Further, the County Governments have been tasked with the agricultural function which includes; -a.Crop and animal husbandryb.Livestock sale yards;c.County abattoirsd.Plant and animal disease control; ande.Fisheries

11Mr Daniel Mungai further stated that every person has a duty under Article 69 (2) to Cooperate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.

12It was also argued that in the year 2016, in compliance with Article 72 of theConstitution, parliament passed The Fisheries Management and Development Act No 35 of 2016 whose objectives as set out under section 5 (1) is to protect, manage, use and develop the aquatic resources in a manner which is consistent with ecologically sustainable development to uplift the living standards of the fishing communities and to introduce fishing to traditionally non-fishing communities to enhance food security.

13Further, it was stated the 1st, 2nd and 5th Respondents conducted public participation and stakeholder engagement in compliance with the provisions of Article 10 as well as Article 69 (1) (d) of theConstitution 2010 and as well, the 3rd and 4th Respondents conducted Public Participation before The Fisheries Management and Development Act No 35 of 2016 was passed five years ago. Further, that the Act is a National Law and has been enforced in the entire Republic and the Petitioner cannot therefore claim that the same has been enforced selectively to Lamu County.

14The 3rd Respondent filed a replying affidavit dated January 17, 2022 sworn by Michael Sialai OBS the Clerk of the National Assembly stating that the 3rd Respondent holds a constitutional mandate under Article 94 and 109 of theConstitution to take legislative and policy measurer to enact legislation on matters of interest to the public.

15He stated that the petition offends the doctrine of presumption of constitutionality of a statute passed which states that statutes passed should be presumed to be constitutional until the contrary is proved and the petitioner has failed to demonstrate the unconstitutionality alleged and has not reached the threshold to declare the statutes unconstitutional.

16It was deponed that The Fisheries Management and Development Bill was read a first time on June 3, 2014 and pursuant to Article 118 of the National Assembly standing order 127 which requires Public Participation, an advertisement was placed in the mainstream print media on June 9, 2014 inviting the public to submit any Memorandum and comments on the draft bill. The committee however, did not receive any memoranda bill. Further the committee undertook public participation and compiled its report having extensively considered the Bill and the report was laid before the National Assembly on April 28, 2015 and approved thereafter. It was then transmitted to the House of Senate for consideration where the senate proposed several amendments. On August 11, 2016, the senate amendments were considered in the National Assembly Committee and approved. The Bill was then read a third time and passed.

17It was averred that the Petitioner seeks to illegally undermine the parameters for consideration and processing of statutes, alleging inadequacies, yet the National Assembly conducted adequate participation before passing of the Act. Further, the Petitioner has failed to explain with clarity and precision the manner in which the alleged infringement of their rights have been occasioned through the enactment, enforcement and implementation of the impugned provisions.

18The 4th Respondent filed a replying affidavit dated January 19, 2022 sworn by Jeremiah Nyengenye the Clerk of the Senate, stating that the Act was enacted by the National Assembly in accordance with theConstitution and tabled before the Senate for consideration. He added that the Senate Committee subjected the Bill to public participation pursuant to Article 118 of theConstitution and Standing Order No 130 (4) of the Senate Standing Orders No 130 (4) of the Senate Standing Orders by inviting submissions from the members of the public through advertisement on newspapers.

19It was stated that the committee received written submissions on the Bill and held a public hearing on March 8, 2016 at Shimba Hills Hall in Kenyatta International Convention Centre, Nairobi where oral submissions were received and the proposals were included in the amendments.

20It was further stated that there is no evidence of alleged unconstitutionality of section 42 (1) (a), (b), (e), (i), (j), (i) (m) of the Act and the Petitioner has not reached the threshold to declare the statutes unconstitutional.

Analysis and Determination 21I have considered the pleadings by the parties. I have also read and weighed the extensive submissions by the parties as well as the authorities relied on. The issues for determination are; - 1. Whether the Court has the power to grant the Orders sought herein?

2. Whether there was public participation in enacting the Fisheries Management and development Act?

Whether the Court has the power to grant the Orders sought herein? 22Article 1 (3) of theConstitution provides that sovereign power which is pursuant to Article 1 (1) of theConstitution 'belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.''………..is delegated to the following state organs which shall perform their functions in accordance with this Constitution-a.Parliament and the legislative assemblies in the County Governments;b.The National Executive and the Executive structures in the County Government; andc.The Judiciary and independent tribunals.'

23The effect of the above Article is to reasonate with the doctrine of separation of powers to both the National Government as well as devolved government. The doctrine of separation of powers was well enunciated in the case of Trusted Society of Human Rights V The Attorney General and Others, High Court Petition No 229 of 2012 [2012] eKLRwhere the Court held; -'Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieu influence is palpable throughout the foundational document, theConstitution, regarding the necessity of separating the Government functions. TheConstitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to without interference form the other two.'

24Article 2 (4) of theConstitution provides that; -'Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.'

25Article 165 (3) (d) (ii) and (iii) confers jurisdiction to the High Court to hear any question in regard to interpretation of theConstitution including the determination of whether any law is inconsistent with or in contravention of theConstitution. On that account, while the legislative authority vests in the National Assembly and County legislative assemblies, where a question arises on the Constitutionality of an enactment, it is the duty of the High Court to determine that question. The upshot of the above is that this Court has the jurisdiction to hear and determine the issue before it.

Whether there was public participation in enacting the Fisheries Management and development Act and whether the impugned sections should be declared unconstitutional. 26Article 10 of theConstitution concerns itself with National Values and principles of governance. Article 10 (2) provides; -'The National values and principles of governance include; -a.Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people:b.–c.Good governance, integrity, transparency and accountability andd.–

27The above principles were well discussed in the case of Nairobi Civil Appeal No 224 of 2017 Independent Electoral and Boundaries Commission & Others V the National Super Alliance & Others where the Court of Appeal stated; -'In our view, analysis of jurisprudence from the Supreme Court leads us to the clear conclusion that Article 10 (2) of theConstitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles. Kenyans did not promulgate the 2010 Constitution in order to have devolution, good governance, democracy, rule of law and participation of the people to be realized in a progressive manner in some time for future; - it could never have been the intention of Kenyans to have good governance, transparency and accountability to be realized and enforceable gradually……'

28The question I am faced with is on the constitutionality of the impugned sections of the Act. The burden of prove lies with the Petitioners to demonstrate the unconstitutionality of the said sections. This position was well settled in the case of Ndyanabo V Attorney General [2001] 2 EA485 where the Court of Appeal in Tanzania stated that;'Until the contrary is proved a legislation is presumed to be Constitutional. It is a sound principle of Constitutional construction, that, if possible, a legislation should receive such a construction as will make it operative and not inoperative.'

29The result of the foregoing is that Courts should be guided by the general principles that there is a rebuttable presumption that legislation is constitutional hence the burden of rebuttal rests on the one challenging the constitutionality of a legislation.

30The Petitioner herein contends that the enactment of the Act was unconstitutional as it did not meet the various constitutional and statutory provisions that there be public participation in enactment of a legislation. It is the duty of this Court therefore, to determine whether the Act was in fact and in substance enacted as per the provisions of theConstitution.

31Public participation is not mere consultation. It is not a public relations exercise either. Public views ought to be taken into account in the decision making process all the way to the enactment. This was a position well appreciated in the authority of Doctors for Life International V Speaker of the National Assembly and Others (CCT 12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006 (6) SA 416 (cc)where the Court held; -'If legislation is infused with a degree of openness and participation, this will minimize dangers of arbitrariness and irrationality in the formulation of legislation. The objective in involving the public in the law making process is to ensure that the legislators are aware of the concerns of the public. And if the legislators are aware of those concerns, this will promote the legitimacy, and thus the acceptance of the legislation. This not only improves the quality of the law-making process, but it also serves an important principle that government should be open, accessible, accountable and responsive. And this enhances democracy.'

32Through the replying affidavit sworn by Mr Daniel Mungai, the 1st, 2nd and 5th Respondents maintain that they conducted public participation and stakeholder engagement in accordance with the provisions of theConstitution. Similarly, the 4th Respondent contends that an advertisement was placed in the mainstream print media on June 9, 2014 inviting the public to give their views on the Bill.

33Articles 124 of theConstitution gives the powers to the Houses of Parliament to put in place standing orders to guide their operations. Section 127 of the National Assembly standing orders informs the process of law making. This section provides inter-alia that the Departmental Committee should facilitate public participation through inviting submissions of memoranda, public hearing, consultation with relevant stakeholders and consultation with experts.

34The question then is, was there public participation? Public participation as per the standing orders hereinabove discussed was supposed to be initiated by the National Assembly in view of the fact that the legislation emanated from the said House. The 3rd Respondent (the National Assembly) avers that there was an advertisement on print media on June 9, 2014. This is captured in it’s report dated April 27, 2015. Apart from simply asserting this was done, there is no evidence that public participation was initiated let alone considered. I concur with Mwita J in Kenya Human Rights Commission V Attorney General & Another [2018] eKLR where he held that;'Once a Petitioner attacks the legislative process on grounds that the law making process did not meet the constitutional standard of public participation, the Respondent is under a legal obligation to demonstrate that the legislative process did meet the Constitutional Standards of public participation……there was no attempt on part of the Respondent to show that there was any semblance of public participation in the legislative process leading to the enactment of the impugned Contempt Of Court Act. That being the State of affairs, the Court has no option but to agree with the Petitioner that there was violation of an important Constitutional step in the form of public participation and the Act fails this Constitutional step.'

35The 4th Respondent however, did adduce evidence to show that indeed there was public participation. However, it is paramount at this stage to point out that the actions undertaken by the 3rd Respondent are precursory to activities carried out by the 4th Respondent in the law making process especially when a bill originates from the National Assembly. This cannot be a process where the end justifies the means. Every step is important and counts in the ultimate. It was upon the 3rd Respondent to ensure that the process was flawless and in line with the provisions of theConstitution and the Standing Orders. Public participation must include and be seen to include the dissemination of information, invitation to participate in the process and consultation on the legislation and this is a fact to be proved by the party that was required to comply with this requirement, that indeed there was this objective public participation.

36The Court of Appeal in Kiambu County Government & 3 Others V Robert N Gakuru & Others [2018] eKLR held that; -'………………the issue of public participation is of immense significance considering the primacy it has been given in the Supreme law of this Country and in relevant statutes relating to institutions that touch on the lives of the people. Theconstitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation…………'

37That said, it is my finding that the 3rd Respondent did not demonstrate that there was public inclusion and/or participation in the law making process. The compliance by the 4th Respondent does not absolve the failure of the 3rd Respondent. I am persuaded that the impugned sections in the Act do not meet the Constitutional test of validity for want of public participation as well as the entire Fisheries Management Development Act 2016.

38My findings are guided by the holding in Macfoy V United Africa Co Ltd [1961]3 All ER 1169 where Lord Denning at page 1172 (1) stated;-'If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'

39Accordingly, I make the following orders; - 1. A declaration is hereby issued that section 42 (1) (a), (b), (e), (i) (j), (m) of the Fisheries Management and Development Act, 2016 are inconsistent with theConstitution and therefore null and void.

2. A declaration is hereby issued that the entire Fisheries Management and Development Act 2016 is invalid for want of Public Participation.

3. No orders as to costs.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 15TH DAY OF NOVEMBER, 2022S.M. GITHINJIJUDGE15/11/2022In the absence of; -Mr Waigwa for the PetitionerMr Lutta for the 1st, 2nd and 5th RespondentMr Mwendwa for the 3rd RespondentMr Wamburwa for the 4th RespondentParties be notified.