[2022] KEHC 10206 (KLR)

Republic v National Cohesion and Integration Commission; Chama Cha Mawakili Limited (Exparte) (Judicial Review Application E057 of 2022) [2022] KEHC 10206 (KLR) (Judicial Review) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10206 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E057 of 2022

AK Ndung'u, J

July 14, 2022

Between

Republic

Applicant

and

National Cohesion and Integration Commission

Respondent

and

Chama Cha Mawakili Limited

Exparte

Court faults the National Cohesion and Integration Commission for the unprocedural classification and ban of the terms “hatupangwingwi” and “watajua hawajui” as hate terms.

The mandate of the National Cohesion and Integration Commission to classify and ban hate terms/speech was an administrative action that was amenable to judicial review.

Reported by John Ribia

Constitutional Law– fundamental rights and freedoms – right to fair administrative action – administrators – the National Cohesion and Integration Commission as administrators- whether the National Cohesion and Integration Commission was an administrator within the meaning of the Fair Administrative Action Act - whether the mandate of the National Cohesion and Integration Commission to classify and ban hate terms/speech was an administrative action that was amenable to judicial review - whether the National Cohesion and Integration Commission followed the proper procedure laid in its decision to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms - whether the decision of the National Cohesion and Integration Commission to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms violated the petitioner’s right to fair administrative action –Constitution of Kenya, 2010 articles 33 and 47;National Cohesion and Integration Act, No.12 of 2008, section 26;Fair Administrative Action Act, , sections 2, 4 and 5.

Brief facts The National Cohesion and Integration Commission (the respondent) was a body in charge of promoting national identity and values, mitigated ethno-political competition and ethnically motivated violence, as well as elimination of discrimination on ethnic, racial and religious basis and promoted national reconciliation and healing. Part of their mandate was classifying and banning terms that they considered to be hate speech. On April 11, 2022 the respondent classified the words “hatupangwingwi” and “watajua hawajui” as hate speech and banned the words.The petitioner challenged the decision of the respondent in the instant petition to ban the aforementioned terms. The petitioner faulted the respondent for unilaterally classifying the words as hate speech and contended that the ban on the words was irrational, unreasonable, made in bad faith, ultra vires and a breach of its right to fair administrative action.

Issues

Whether the mandate of the National Cohesion and Integration Commission to classify and ban hate terms/speech was an administrative action that was amenable to judicial review.

Whether the National Cohesion and Integration Commission followed the proper procedure laid in its decision to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms.

Whether the decision of the National Cohesion and Integration Commission to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms violated the petitioner’s right to fair administrative action.

Relevant provisions of the Law Fair Administrative Action Act, Act No. 4 of 2015Section 55. Administrative action affecting the public(1) In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall–(a) issue a public notice of the proposed administrative action inviting public views in that regard;(b) consider all views submitted in relation to the matter before taking the administrative action;(c) consider all relevant and materials facts; and(d) where the administrator proceeds to take the administrative action proposed in the notice–(i) give reasons for the decision of administrative action as taken;(ii) issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and(iii) specify the manner and period within the which such appeal shall be lodged.

Held

Article 47 of the Constitution granted every person the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Section 2 of the Fair Administrative Action Act (FAAA)defined an administrator as any person who took an administrative action or who made an administrative decision. The impugned action was an administrative action within the meaning of the FAAA as it affected the legal rights and interests of the applicant and other citizens who may be inclined to use the targeted words. The respondent was an administrator as defined in the FAAA in the context of the action taken.

The applicant’s freedom of speech was affected by the decision of the respondent. The impugned action being an administrative action within the meaning of the FAAA brought it directly within the purview of the court’s jurisdiction conferred by section 9(1) of the FAAA. It was an action amenable to judicial review.

Where an administrative action was likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, section 5(1) of the FAAA safeguarded the rights of such a group of persons or the general public by requiring an administrator to issue a public notice of the proposed administrative action inviting public vies or considering any views submitted relating to the action. There was no evidence that the respondent issued the notice or considered all material facts. Though the respondent appeared to have given reasons for the administrative action, giving the reasons at the tail end of the impugned action in the absence of hearing the affected parties could not in all possibility sanitize the action. The respondent had not issued a public notice specifying the internal mechanism available to the persons directly or indirectly affected by the action to appeal and the manner and period within the which such appeal was to be lodged.

The right to be heard was cardinal and could not be derogated. The respondent undertook a crucial and sensitive role in promotion of national cohesion in an environment of pronounced diversity. The statutory power donated to it, however, had to be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and the law. However well-meaning the respondent could not get away with unilateral decisions that affected the citizenly without regard to their constitutional and legal rights topmost of which was the right to heard.

Every administrator bestowed with statutory powers to make decisions or to take actions that adversely affected an individual or group of individuals was not to lose sight of the provisions of sections 4 and 5 of the FAAA and to specifically accord such person(s) notice of intended action, hear their views, consider all relevant matters, give reasons for the decision taken and inform them of the right and manner of appeal. The respondent did not follow due process before taking the impugned action. The applicant’s rights enshrined in article 47 of the Constitution and operationalized through the FAAA were trampled upon.

Petition allowed.

Orders

An order of certiorari was granted that quashed the respondent’s decision made on April 8, 2022 vide Hatelex: A lexicon of Hate Speech Terms in Kenya banning and/or classifying “Hatupangwingwi” and “watajua hawajui” as hate terms.

Each party was to bear its own costs.

Citations Cases Municipal Council of Mombasa v Republic & Umoja Consultants Ltd. (Civil Appeal 185 of 2001; [2002] KECA 8 (KLR)) — Explained

Republic v Nairobi City County Ex parte Registered Trustees of Sir Ali Muslim Club (Judicial Review Application 46 of 2017; [2017] KEHC 2864 (KLR)) — Followed

RICHARD NCHAPI LEIYAGU V INDEPENDENT ELECTORAL BOUNDARIES COMMISSION &2 OTHERS (Election Petition 4 of 2013; [2013] KEHC 3100 (KLR)) — Explained

Council of Civil Service Unions v Minister for the Civil Service ([1984] UKHL 9, [1985] AC 374, [1984] 3 WLR 1174, [1985] ICR 14, [1984] 3 All ER 935, [1985] IRLR 28) — Mentioned

In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001

Statutes Constitution of Kenya, 2010 — Article 33,47 — Interpreted

Fair Administrative Action Act, 2015 (Act No 4 of 2015) — Section 2, 4,5(1); 9(1) — Interpreted

National Cohesion And Integration Act, 2012 (Act No 12 of 2008) — Section 25,26 — Interpreted

Texts Fordham, M., QC (2008), Judicial Review Handbook by Michael Fordham, 3rd Edn (Hart Publishing; pp 249- 25)

Hogg, Q., Hailsham of Saint Marylebone (Ed) (1995), Halsbury’s Laws England (London: Butterworth 4th Edn Vol 44 (1))

AdvocatesNone mentioned

Judgment

1. The ex parte applicant is before this court vide a Notice of Motion Application dated April 14, 2022 which is verified by a verifying affidavit sworn by Georgiadis Majimbo on April 11, 2022. The Application seeks the following orders:a)An order of certiorari be granted by this honourable court to bring into this court and quash the respondent’s decision made on April 8, 2022 vide Hatelex: A lexicon of Hate Speech Terms in Kenya banning and/or classifying “Hatupangwingwi” and “watajua hawajui” as hate terms.b)Costs of and incidental to the application be in the cause.

2. The ex parte applicant’s case is that the respondent on April 8, 2022 made a decision to classify and/or ban words it considered as hate terms vide its Hatelex: A lexicon of Hate Speech Terms in Kenya. Some of the words classified as hate terms and/or banned by the respondent included “Hatupangwingwi” and “watajua hawajui”.

3. The ex parte applicant contends that the decision contained in the Hatelex does not adhere to the principles set out in article 33 and 47 of the Constitution. The decision is said to be irrational as it is irrational for the respondent to unilaterally classify words or terms as hate speech and ban them without any justification. It was also contended that the timing of the classification/ban is calculated to confer undue advantage to some political formations in the upcoming elections.

4. The respondent’s decision is faulted for being irrational, unreasonable, made in bad faith and ultra vires. It is argued that before the respondent made a decision to ban or classify the said words as hate terms or speech, it ought to have accorded Kenyans or political aspirants who would be affected by the said decision a fair hearing. The respondent in making the impugned decision is said to have exceeded its authority as conferred to it under section 26 of the National Cohesion and Integration Act,2008.

5. On whether the grant of judicial review reliefs is no doubt exercise of discretion the ex parte applicant cited the Halsbury’s Laws of England 4th Edn Vol 1(1) and Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410.

6. The respondent in rebuttal filed grounds of opposition dated May 26, 2022 in which it was contended that the application as drawn and taken out offends the provisions of section 25 & 26 of the National Cohesion and Integration Act No 12 of 2008 and that it seeks to curtail the statutory duties of the respondent which is not the purpose of this court. Further that the application is based on contradictory allegations which borders on mere belief, suspicion and speculations and hence incapable of any Judicial Review determination and that JR is only concerned with the decision-making processes.

7. It is contended that the applicant has not proven irrationality, illegality, procedural impropriety, abuse of power, unfairness and/or ultra vires. It is trite law that he who alleges must prove. The respondent further contended that issuance of the order of certiorari is against public interest and this being an election period national cohesion and unity is an integral point.

Determination 8. I have considered the application, the supporting grounds, the grounds of opposition and learned submissions by counsel. Of determination is whether the applicant has established sufficient grounds for the grant of judicial review orders sought.

9. In a nutshell the ex parte applicant herein faults the respondent for classifying and/ or banning the terms “Hatupangwingwi” and “watajua hawajui” as hate speech vide its Hatelex on April 8, 2022. It is contended that the said action contravenes the provisions of article 33 on Freedom of Expression and article 47 on Fair Administrative Action. The respondent is also said to have contravened the provisions of section 26 of the National Cohesion and Integration Act,2008 which outlines the powers of the Commission.

10. The respondent in disagreement with the said assertions contends that the ex parte applicant’s application as filed contravenes section 25 & 26 of the Act. The applicant is accused of wanting to curtail the statutory duties of the respondent herein.

11. The respondent before this court is a statutory body established under the National Cohesion and Integration Act No 12 of 2008 to promote national identity and values, mitigate ethno-political competition and ethnically motivated violence, eliminate discrimination on ethnic, racial and religious basis and promote national reconciliation and healing. The Commission was created by the National Cohesion and Integration Act,2008 following the 2007- 2008 post-election crisis during which several local radio stations are believed to have facilitated the spread of inciteful political rhetoric, often in vernacular.

12. The Commission’s object and functions are found under section 25 of the Act which states as follows;“25. (1)The object and purpose for which the Commission is established is to facilitate and promote equality of opportunity, good relations, harmony and peaceful co-existence between persons of the different ethnic and racial communities of Kenya, and to advise the Government on all aspects thereof.(2)Without prejudice to the generality of subsection (1), the Commission shall—(a)promote the elimination of all forms of discrimination on the basis of ethnicity or race;(b)discourage persons, institutions, political parties and associations from advocating or promoting discrimination or discriminatory practices on the ground of ethnicity or race;(c)promote tolerance, understanding and acceptance of diversity in all aspects of national life and encourage full participation by all ethnic communities in the social, economic, cultural and political life of other communities;(d)plan, supervise, co-ordinate and promote educational and training programmes to create public awareness, support and advancement of peace and harmony among ethnic communities and racial groups;(e)promote respect for religious, cultural, linguistic and other forms of diversity in a plural society;(f)promote equal access and enjoyment by persons of all ethnic communities and racial groups to public or other services and facilities provided by the Government;(g)promote arbitration, conciliation, mediation and similar forms of dispute resolution mechanisms in order to secure and enhance ethnic and racial harmony and peace;(h)investigate complaints of ethnic or racial discrimination and make recommendations to the Attorney General, the Human Rights Commission or any other relevant authority on the remedial measures to be taken where such complaints are valid;(i)investigate on its own accord or on request from any institution, office, or person any issue affecting ethnic and racial relations;(j)identify and analyze factors inhibiting the attainment of harmonious relations between ethnic communities, particularly barriers to the participation of any ethnic community in social, economic, commercial, financial, cultural and political endeavours, and recommend to the Government and any other relevant public or private body how these factors should be overcome;(k)determine strategic priorities in all the socio-economic political and development policies of the Government impacting on ethnic relations and advise on their implementation;(l)recommend to the Government criteria for deciding whether any public office or officer has committed acts of discrimination on the ground of ethnicity or race;(m)monitor and review all legislation and all administrative acts relating to or having implications for ethnic or race relations and equal opportunities and, from time to time, prepare and submit to the Government proposals for revision of such legislation and administrative acts;(n)initiate, lobby for and advocate for policy, legal or administrative reforms on issues affecting ethnic relations;(o)monitor and make recommendations to the Government and other relevant public and private sector bodies on factors inhibiting the development of harmonious relations between ethnic groups and on barriers to the participation of all ethnic groups in the social, economic, commercial, financial, cultural and political life of the people;(p)undertake research and studies and make recommendations to the Government on any issue relating to ethnic affairs including whether ethnic relations are improving;(q)make recommendations on penalties to be imposed on any person for any breach of the provisions of the Constitutionor of any law dealing with ethnicity;(r)monitor and report to the National Assembly the status and success of implementation of its recommendations;(s)issue notices directing persons or institutions involved in actions or conduct amounting to violations of human rights on the basis of ethnicity or race to stop such actions or conduct within a given period; and(t)do all other acts and things as may be necessary to facilitate the efficient discharge of its functions.

13. The Commission’s power can be found under section 26 which also states as follows;26. (1)The Commission shall have all the powers necessary or expedient for the proper performance of its functions under this Act.(2)In the discharge of its functions under this Act, the Commission—(a)shall not be subject to the direction or control of any other person or authority;(b)shall publish the names of persons or institutions whose words or conduct may undermine or have undermined or contributed towards undermining good ethnic relations, or who are involved in ethnic discrimination or the propagation of ethnic hate;(c)may enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purpose for which the Commission is established;(d)control, supervise and administer the assets of the Commission in such manner and for such purposes as best promote the purpose for which the Commission is established;(e)receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom; and(f)open a banking account or banking accounts for the funds of the Commission.

14. The commission exercising its mandate under the said provisions undertook a study to identify a lexicon employed by influential people to incite violence on one part of the population (some ethnic groups) against another (other ethnic groups). This study culminated into the said Hatelex which identifies the common stereotypes(words), translates the said words, identifies the target community of the said words and the persons who use the said words. The report also gives a meaning of the said common stereotypes.

15. The respondent in its report annexed to the ex parte applicant’s verifying affidavit dated April 11, 2022 describes the two terms that is “Hatupangwingwi” and “watajua hawajui as follows;Common stereotypes Translation Target Community User Community Meaning

Watajua hawajui They will know that they do not know Political aspirants and supporters of the less dominantpolitical party in an area Political aspirants and supporters ofthe dominant political party in an area This statement is perceived that the opponents daring a party on an issue will be surprised by the vicious nature of responses they will meet in return.

Hatupangwingwiwi No one can arrange us Specific families & communities that have been in power for long particularly the Luo, andKikuyu. Political aspirants from families/ communities that have not been at the center of power in the past. This statement is used to underscore the fact that some families/ communities have been at the periphery of national leadership and influence for so long and they no longer want to remain out.

16. According to the report by the respondent, the study identified terms and heavily coded messages that can be used to incite hatred and deliberately exclude other communities in various languages including English, Kiswahili, Sheng’, Kikuyu, Kalenjin and Non-Verbal gestures.

17. The respondent is faulted in these proceedings for being in breach of article 33 and 47 of the Constitution. The decision is said to be irrational, as, it is irrational for the respondent to unilaterally classify words or terms as hate speech and ban them without any justification. It was also contended that the timing of the classification/ban is calculated to confer undue advantage to some political formations in the upcoming elections.

18. The respondent’s decision is faulted for being irrational, unreasonable, made in bad faith and ultra vires. It is argued that before the Respondent made a decision to ban or classify the said words as hate terms or speech, it ought to have accorded Kenyans or political aspirants who would be affected by the said decision a fair hearing. The respondent in making the impugned decision is said to have exceeded its authority as conferred to it under section 26 of the National Cohesion and Integration Act,2008.

19. A good point to start from is to acknowledge the underpinning of the right to fair administrative action in the Constitutionat article 47 thereof. The article provides;“47(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.’’

20. Parliament enacted the Fair Administrative Action Act (hereinafter the FAAA) to give effect to the constitutional right to fair administrative action. It is opportune at this stage to consider the impugned action taken by the respondent with a view to making a determination whether the same is an administrative action within the meaning of the FAAA. Section 2 of the FAAA provides;“2. In this Act unless the context otherwise requires ‘’administrative Action’’ includes –(i)the powers, functions and duties exercised by authorities or quasi- judicial tribunals; or(ii)any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;”The section defines an administrator as any person who takes an administrative action or who makes an administrative decision.

21. A cursory look at the impugned action readily reveals that the action is an administrative action within the meaning of the Act as it affects the legal rights and interests of the applicant and other citizens who may be inclined to use the targeted words. The respondent is an administrator as defined in the Act in the context of the action taken.

22. It merits a quick mention that the legal rights of the applicants that are affected are the constitutional guarantees to freedom of speech enshrined in article 33 of the Constitution. The article provides;“33. Freedom of expression1. Every person has the right to freedom of expression, which includes;a.freedom to seek, receive or impart information or ideas;b.freedom of artistic creativity; andc.academic freedom and freedom of scientific research.

23. Notably, the said freedom is not absolute as section 33(2) provides as follows;“2. The right to freedom of expression does not extend toa.propaganda for war;b.incitement to violence;c.hate speech; ord.advocacy of hatred thati.constitutes ethnic incitement, vilification of others or incitement to cause harm; orii.is based on any ground of discrimination specified or contemplated in article 27(4). 3. In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

24. The impugned action being an administrative action within the meaning of the FAAA brings it directly within the purview of this court’s jurisdiction conferred by section 9(1) of the FAAA. It is therefore an action amenable to judicial review.

25. The The court’s role in its supervisory jurisdiction of public bodies was explained in Judicial Review Handbook by Michael Fordham (Third Edition) p.249- 256 as follows:“Every public body has its own role and has matters which it is to be trusted to decide for itself. The courts are careful to avoid usurping that role and interfering whenever it might disagree as regards those matters. ‘

26. The scope of judicial review is well established in case law. In Municipal Council of Mombasa v Republic & Umoja Consultants Ltd Civil Appeal No 185 of 2001 it was held that:“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision…It is the duty of the decision maker to comply with the law in coming to its decision, and common sense and fairness demands that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorised by the statute creating it and in the manner authorised by statute.”

27. The respondent is faulted for unilaterally classifying the words “Hatupangwingwi” and “watajua hawajui” as hate speech and the ban on the words is challenged on the basis of being irrational, unreasonable, made in bad faith and ultra vires. Where an administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, section 5(1) of the FAAA safeguards the rights of such a group of persons or the general public by providing as follows;5. Administrative action affecting the public(1)In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall–(a)issue a public notice of the proposed administrative action inviting public views in that regard;(b)consider all views submitted in relation to the matter before taking the administrative action;(c)consider all relevant and materials facts; and(d)where the administrator proceeds to take the administrative action proposed in the notice–(i)give reasons for the decision of administrative action as taken;(ii)issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and(iii)specify the manner and period within the which such appeal shall be lodged.

28. I have perused the record herein. There is no evidence that the respondent issued a public notice of the proposed administrative action inviting public views in that regard or considered any views submitted in relation to the matter before taking the administrative action. There is no evidence that the respondent considered all relevant and materials facts. Though the respondent appears to have given reasons for the administrative action, giving the reasons at the tail end of the impugned action in the absence of hearing the affected parties cannot in all possibility sanitize the action. Moreover, the respondent has not issued a public notice specifying the internal mechanism available to the persons directly or indirectly affected by the action to appeal and the manner and period within the which such appeal shall be lodged.

29. The right to be heard is cardinal and cannot be derogated. This court appreciates the crucial and sensitive role that the respondent undertakes in promotion of national cohesion in an environment of pronounced diversity. The statutory power donated to it, however, must be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and our laws. However well meaning, the respondent cannot get away with unilateral decisions that affect the citizenly without regard to their constitutional and legal rights topmost of which is the right to heard. This was emphasized in the case of Leiyagu v IEBC & 2 others where the court stated;“The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law.”

30. Every administrator bestowed with statutory powers to make decisions or take actions that adversely affect an individual or group of individuals must not lose sight of the provisions of section 4 and 5 of the FAAA and to specifically accord such person or persons notice of intended action, hear his/her/their views, consider all relevant matters, give reasons for the decision taken and inform them of the right and manner of Appeal. I agree with the sentiments of Odunga J in Republic v Nairobi City County ex parte Registered Trustees of Sir Ali Muslim Club [2017] eKLR where he stated:“56. In a nutshell, the rule of law also allows for predictability of actions by public bodies and the fact that law would be uniformly and objectively applied. Part of our Constitution(article 10) asserts that transparency and accountability are some of the hallmarks that define the rules that bind a state organ. Since the rule of law enforces minimum standards of fairness, both substantive and procedural it follows that before a decision adverse to the interest of a person is made, that person must be accorded a hearing as stipulated in article 47 of the Constitutionas read with sections 4 and 7 of theFair Administrative Actions Act.’’

31. From the foregoing and for reasons above stated, am satisfied that the respondent did not follow due process in taking the impugned action. The applicant’s rights enshrined in article 47 and operationalised through the Fair Administrative Action Act were trampled upon. The application before court is meritable. I allow the same and make the following orders;1)An order of certiorari be, and is hereby granted, to bring into this court and quash the respondent’s decision made on April 8, 2022 vide Hatelex: A lexicon of Hate Speech Terms in Kenya banning and/or classifying “Hatupangwingwi” and “watajua hawajui” as hate terms.2)Each party to bear their own costs

DATED SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY 2022………………………A.K. NDUNGUJUDGE