GUARDIANS OF CONSTITUTIONALISM: A COMPARATIVE ACCOUNT OF THE MECHANISMS AND INSTITUTIONS PART II
A. Internal devices to safeguard and encourage faithful implementation of the Constitution
1. Entrenchment & Restrictive Amendment Provisions[i]:
Entrenchment deals with the legal procedures for modification of a constitution. An entrenched constitution recognizes the constitution and its process of modification as different from other laws[ii]. Apart from ordering or commanding functions, one other feature of a constitution is its organic nature: which implies that as times, circumstances and experiences of nations transform, so too must a constitution adapt to the attendant situation.
These series of adjustments are referred to as constitutional amendments. An amendment may be occasioned by a grand constitutional crisis, on one extreme, or simply for the purpose of addressing the needs of the people at a certain time.
An argument can be made that some entrenchment provisions in constitutions are inserted as a pre-commitment strategy. The pre-commitment strategy permits the people to protect democratic processes against their own potential excesses and judgments[iii]. It may also be viewed from the perspective that entrenching institutional arrangements is desirable to create a settled framework under which people make decisions[iv]. In this way, constitutions are protected from hurried and potentially retrogressive amendments, and in so doing protecting constitutionalism.
Chapter 16 of the Constitution of Kenya provides for the procedure for amendment of the Constitution. The Chapter contemplated 3 possible scenarios:
a. By subjecting certain matters listed in article 255 (1) for the people’s approval by a referendum; or
b. By enacting an amendment on a matter not mentioned in article 255 (1) by Parliamentary Initiative as per article 256; or
c. By enacting an amendment on an issue not mentioned in article 255 (1) by Popular Initiative as per article 257.
a. The Referendum Process - A referendum is defined as “the process of referring a state legislative act, a state constitutional amendment, or an important public issue to the people for final approval by popular vote.” It also refers to the vote taken by this method. Article 255 isolates certain constitutional provisions that cannot be amended without a referendum. It is not unusual for there to be a more stringent threshold governing certain constitutional clauses or chapters.
The matters which must be subjected to a referendum include: the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance mentioned in Article 10; the Bill of Rights; the term of the office of the president; the independence of the Judiciary and the commissions and independent offices; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions on constitutional amendment.
b. Amendment by Parliamentary Initiative - An amendment to the Constitution that does not relate to fundamental issues as identified above can be enacted by Parliament, in accordance with Article 256. While its name suggests that an amendment process of this nature can only originate from within the Houses, it may also, arguably, be as a result of demands by citizens through a petition to Parliament.
c. Amendment by Popular Initiative - Article 257 provides that an amendment to the Constitution may be proposed by a popular initiative signed by at least one million registered voters. The initiative which is also known as citizens’ initiative, provides a means by which a minimum number of registered voters can force a plebiscite (or public vote) on a proposed statute, constitutional amendment, charter amendment or ordinance, or, in its simplest form, to simply oblige the executive or legislative bodies to consider the subject by submitting it to the order of the day.
Kenya’s 1963 independence constitution was amended numerous times[v] such as the Constitution of Kenya (Amendment) Act No. 18 of 1966 which removed the exercise of emergency powers from Parliament and vested the same in the President, enabling the President to order detention without trial at his own discretion. Another example is the Amendment Act No. 14 of 1975 which extended the prerogative of mercy (sole power of the President) to include the power to pardon a person found guilty of an elections offence.
· Country Comparison: United States of America
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. It provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention[vi].
2. Constraint of Emergency Powers:
If a constitutional democracy is under military attack, or some other crisis such as natural or environmental disaster or economic collapse, and its very survival is at stake, it stands to reason that its constitution’s limitations of power as well as its provisions protecting fundamental rights may be temporarily set aside or limited[vii]. Modern constitutions often aim to limit abuse of such powers by carefully defining the reasons for declaring emergencies; requiring prompt parliamentary approval of a declaration of emergency; providing parliamentary and judicial scrutiny of exercise of emergency powers; limiting the categories of rights that can be derogated during an emergency; and so on[viii]. In this manner, constitutionalism is guarded against the whims of a government through exercise of its emergency prerogative.
“To my mind” Lori Fisler Damrosh writes, “the greatest challenge lies in ensuring that decisions concerning the use of force within an international system of collective security are made on a rational and responsible basis.” In order to achieve this, it seems best not to place the burden of such an important decision on one person or branch alone but to make use of checks and balances provided for in a democratic system. And for this, constitutional regulation on the use of force must be followed[ix].
In Kenya, emergency powers are vested in the President[x] as the Commander-In-Chief of the Kenya Defence Forces, yet are curtailed by the requirement that any extension beyond fourteen days must be sanctioned by the National Assembly by resolution adopted following a public debate and by a supporting vote of at least two-thirds of all the members and for not longer than two months at a time.
The Kenyan Constitution at article 58 provides that a state of emergency may be declared only by the President, and only when the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and where the declaration is necessary to meet the circumstances for which the emergency is declared.
Sub article 5 states that the Supreme Court may decide on the validity of such a declaration of a state of emergency, or any extension of a declaration of a state of emergency; and any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency. This could be lauded as a move by the drafters to vacate discretionary and absolute powers on such grave an issue that its exercise impacts on the fundamental rights and freedoms[xi], from the executive – one more rung on the ladder of separation of powers[xii].
· Country Comparison: Spain
The Spanish Constitution categorically differentiates between states of alarm, emergency and siege or martial law. Article 116 of the Constitution of 1978 provides:
A state of alarm shall be declared by the Government, by means of a decree decided upon by the Council of Ministers, for a maximum period of fifteen days. The Congress of Deputies must meet immediately and must give their authorisation for the said period my not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply.
A state of emergency shall be declared by the Government by means of a decree decided upon by the Council of Ministers, after prior authorisation by the Congress of Deputies. The authorisation for and declaration of a state of emergency must specifically state the effects thereof, the territorial area to which it is to apply and its duration, which may not exceed thirty days, subject to extension for a further thirty-day period, with the same requirements.
A state of siege (martial law) shall be declared by absolute majority of the Congress of Deputies, exclusively at the proposal of the Government. Congress shall determine its territorial extension, duration and terms.
Furthermore, Congress may not be dissolved while any of the states referred to in the present article remain in operation, and if the Houses are not in session, they must automatically be convened.
3. Scheduled time limits for setting up institutions and passing laws:
Constitutions, according to James Bryce, are “a frame of political society, organized through and by law; that is to say, one in which law has established permanent institutions with recognized functions and definite rights”[xiii]. Therefore for the proper ordering of a government and the setting out of their functions, a Constitution and its enabling laws must be drafted and implemented. The Constitution of Kenya spells out that the new Parliament shall enact certain required legislation(s) within the periods mentioned in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament[xiv]. It set the time specification of between one to five years for the enactment of over 48 laws, some of which were to establish independent constitutional commissions such as the Kenya National Human Rights Commission (KNCHR), and the National Gender and Equality Commission (NGEC). These are creatures of the constitution charged with oversight (and at times enforcement) and are thus referred to as the ‘Fourth Arm of Government’ due to the support roles that they offer to the conventional three arms. These will be examined in detail shortly.
Article 261 (5) contains a provision which permits any person to petition the High Court where Parliament fails to enact any particular legislation within the specified time. Scheduled timespans serve to ensure and concretize timely implementation of constitutional provisions and forestall any malicious omission on the part of the government.
· Country Comparison: Ghana
Part IV (Miscellaneous) of the 1992 Ghanaian constitution, expressly provides that the first appointments to specific offices shall be made within six months after the assumption of office of the President including, but not limited to the Commissioner for Human Rights and Administrative Justice and his Deputies; the Chairman, the Deputy Chairmen and Members of the Electoral Commission; the National Media Commission; and the National Commission for Civic Education[xv].
Similarly, Parliament was required to, within six months after the coming into force of the Constitution, prescribe by law the jurisdiction of Regional Tribunals as well as establish lower courts or tribunals[xvi].
4. Judicial Review of Administrative Actions[xvii]
Yet another way to guarantee that constitutionalism is preserved is through the use of judicial review of administrative actions or decisions by agencies exercising administrative authority or performing judicial or quasi-judicial functions, among others. The Fair Administrative Action Act, 2015 provides that a person who is aggrieved by an administrative action may, without unreasonable delay[xviii], apply for judicial review of any administrative action to the High Court of Kenya. As far as standing is concerned, section 5 of the Act states that one need only show membership of a group of persons or the general public whose legal rights or interests are materially and adversely affected. The Act requires applicants to first exhaust internal mechanisms for review or appeal and all remedies available under any other written law before making an application to court, however, in exceptional circumstances the court may on application exempt applicants from the obligation to exhaust any remedy in the interest of justice.[xix]
The Constitution confers the High Court with jurisdiction inter alia, to hear any question respecting the interpretation of the Constitution such as the determination of the question of whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.[xx]
It also has the power to hear and determine applications arising from the Bill of Rights and in doing so, grant appropriate relief, including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights (and which is not justified under law), an order for compensation; and an order for judicial review.[xxi]
Three matters arise from these constitutional provisions. First, a plain reading of this would suggest that judicial review is ordered, not as of right, but is discretionary. Indeed, the Law Reform Act,[xxii] and the Civil Procedure Rules[xxiii] require that leave be obtained before an application is made for any such order. Grant of leave to apply for orders operates as a stay of the proceedings in question until the determination of the application, or until the judge otherwise orders (Order 53 Rule 1 (4)). The second issue is that of relief. Under the defunct constitution, the scope of remedies available were limited to orders of mandamus, prohibition and/or certiorari. Now, “the new Constitution gives the court wide and unrestricted powers which are inclusive rather than exclusive and therefore allows the court to make appropriate orders and grant remedies as the situation demands and as the need arises”[xxiv] to ensure the fair administration of justice.[xxv]
The third matter concerns the ‘constitutionalization of judicial review’. The Fair Administrative Action Act was enacted pursuant to Article 47 of the Constitution which guarantees the entitlement of every Kenyan to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This places the right to administrative justice at par with other fundamental rights, and obliges the Court to protect it as it would any other. The Act also gives statutory recognition to rules of natural justice.[xxvi]
The effect of this is to entrench and subsume tenets of administrative justice which were hitherto the sole preserve of common law. One court pronounced that it was “keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law”[xxvii]. This does not exclude the application of common law and principles of natural justice from judicial review. Common law standards for measuring the validity of actions are still utilized under the current constitutional dispensation[xxviii], such as whether decisions are irregular, unprocedural, unreasonable, invalid, contrary to the law and to one’s legitimate expectation[xxix], irrational, illegal, amounting to procedural impropriety, in violation of rules of natural justice[xxx], or proportional[xxxi].
The former Chief Justice cautioned that the Kenyan judiciary must guard against the development of a two-tracked system of judicial review – with cases influenced by the common law, on the one hand, and cases decided under the 2010 Constitution’s principles of judicial review on the other – as those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.[xxxii]
In Kenya, the High Court had expressed reluctance to issue orders of mandamus or certiorari where an authority is seized with discretion[xxxiii]. On the other hand, where it is clear that a public body or official has acted outside of the authority delegated to them by statute, the court will readily reverse administrative actions[xxxiv] or where they have infringed constitutional rights[xxxv]. It has been recently pronounced that “care should be taken not to think that the traditional grounds of judicial review have been discarded, or that its scope has left the airspace of process review to merit review”.[xxxvi] In evaluating the process, the Constitution empowers the High Court to call for the record of any proceedings before any subordinate court or person, body or authority.[xxxvii] Finally, a person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.[xxxviii]
· Country Comparison: Germany
In Germany, the general clause (§ 40 of the VwGO[xxxix]) grants citizens a right of access to administrative courts to challenge decisions taken by public bodies[xl] which are prejudicial to, and adversely affect their rights. A few stipulations exist however. The act opposed must not be constitutional in nature, must be a public dispute for which no special court is competent; and must be filed in the correct territorial and jurisdictional jurisdiction[xli]. The person seeking redress must a legal or natural person, and must have right of audience before a court.
Generally, three types of suits exist: a suit for modification of rights or legal relationship; a suit for affirmative relief; and a declaratory suit. Right of action depends on the kind of suit. Under the first category, only the person whose rights have personally been violated may bring a suit.[xlii]In the second category, the plaintiff must have a “legitimate interest in a prompt declaration”. This interest need not be necessarily legal, but must be justified on rational considerations such as economics, politics, culture et cetera[xliii]. Generally, proceedings in German administrative courts have a suspensory effect which prevents execution of the administrative act before a decision is rendered[xliv].
The Courts would first need to flesh out any indefinite legal term, after which it would decide on whether or not the body exceeded its authority, made a mistake, and/or duly considered all material circumstances.
5. Establishment of Independent Commissions to Oversee Constitutional Implementation
The Commission for the Implementation of the Constitution (hereinafter the CIC) was established under section 5 of the Sixth Schedule to the Constitution. Its functions included monitoring, facilitating, and oversight of the development of legislation and administrative procedures required to implement the Constitution; co-ordination with the Attorney-General (AG) and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution. It was also charged with the task of working with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected. It was required to report quarterly to the Parliamentary Select Committee on the progress in the implementation of the Constitution; and on any impediments to the implementation of the constitution[xlv].
The CIC was meant to be a temporary institution with a five-year lifespan. Its tenure came to an end in 2015, and the Chairman of the Commission has lamented that “important provisions have yet to be touched” and added that “the framers of the Constitution were right in their thinking that neither the Executive nor the Legislature could be relied on to protect the Constitution.”[xlvi]
*Its functions have been taken over by the Kenya Law Reform Commission, as discussed below.
· Country Comparison: Afghanistan
Article 157 of the Constitution of the Islamic Republic of Afghanistan provides for the establishment of an Independent Commission for supervision of the implementation of the Constitution shall be established in accordance with the provisions of the law. This Independent Commission for overseeing the Implementation of the Constitution. In 2015, the authority provided for the Commission, according to article 8 of the law establishing the Commission, is now to supervise the observance and application of the Constitution by the President, Government, National Assembly and other state and non-state organizations; provide legal advice on Constitutional matters to the President and National Assembly; make suggestions to the President and legislator on laws that, according to the Constitution, would be needed; and to report to the President any violations of the Constitution[xlvii].
This raises serious challenges in that two different articles in the constitution call for two different oversight mechanisms – the Supreme Court and the Commission. It is my hope that this conflict has since been resolved.
5.1 Establishment of other Independent Bodies and Offices:
Constitutional commissions[xlviii] act as a ‘support system for the three arms of government so as to achieve certain stated objectives. To guarantee that commissions and independent offices exercise their powers and perform their vital functions without fear, favour, prejudice or interference, the 2010 Constitution affords them maximum protection. It dedicates a chapter to secure and entrench their functions, roles and independence’[xlix]. Critiques of the strategic use of commissions by governments allude to their creation when they are confronted by situations that cannot, for whatever reason, be effectively dealt with directly or immediately through the use of traditional methods such as legislation, codes or judicial processes. The crux of the criticism is the narrative that establishment of such commission is actually indicative of its inability and intention to do nothing about the problem[l]. This may have been true of the past, but their existence in the new constitutional dispensation is supposed to signal a turning point; from a record of ‘complacency, grand corruption and poor performance’ to an independent fourth arm which is ‘efficient, objective and fair’.
“It has been argued that the Constitution has created a fourth arm of government …. [to make] up for the past failures of the three arms of government. In effect, the framers of the Constitution acknowledged that certain functions should remain outside the government for the sake of objectivity, fairness and transparency.”[li]
Indeed they are bound to operate by the principles of clear demarcation of their powers and functions, independence, accessibility and accountability[lii]. Chapter 15 establishes the following commissions and independent offices: the Kenya National Human Rights and Equality Commission which consists of KNCHR, NGEC and the Commission for Administration of Justice (the Office of the Ombudsman); the National Land Commission; the Independent Electoral and Boundaries Commission; the Parliamentary Service Commission; the Judicial Service Commission; the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; the Teachers Service Commission; the National Police Service Commission. The independent offices are: the Auditor-General; and the Controller of Budget. Other important commissions listed elsewhere are the Ethics and Anti-Corruption Commission Act and Commission for the Implementation of the Constitution.
[i] This section is an excerpt from a document prepared by the author, and is available on request
[ii] http://www.constitutionnet.org/what-entrenchment
[iii] Comparative Constitutional Law, 3rd Ed. Jackson & Tushnet, P.232
[iv] Ibid, P. 235
[v] http://www.4cmr.group.cam.ac.uk/filecab/redd-law-project/20140821%20BP%20Kenyas%20Constitutional%20History.pdf
[vi] https://www.archives.gov/federal-register/constitution/
[vii] Comparative Constitutionalism, Cases and Materials, 2nd Ed, Dorsen, Rosenfeld, Sajo, and Baer, P. 1511
[viii] http://www.constitutionmakingforpeace.org/?q=part-2-tasks-constitution-making-process/27-adopting-and-implementing-constitution/272
[ix] The Constitution of Kenya, 2010, An Introductory Commentary, PLO Lumumba, Dr. Luis Franceschi P.257
[x] Article 131 (4) (d) of the Constitution of Kenya, 2010
[xi] Article 58 (6), the Constitution of Kenya, 2010. In addition, article 29 states that “Every person has the right to freedom and security of the person, which includes the right not to be— (a) deprived of freedom arbitrarily or without just cause; (b) detained without trial, except during a state of emergency”
[xii] The Constitution of Kenya, 2010, An Introductory Commentary, PLO Lumumba, Dr. Luis Franceschi P.257
[xiii] James Bryce cited by Foley M, The Silence of the Constitution, Routledge, 1989
[xiv] Article 261 (8), the Constitution of Kenya, 2010
[xv] Part IV (9), the Constitution of Ghana, 1992
[xvi] Ibid, Part IV (6)
[xvii] This section is an excerpt from a paper previously submitted by the author, and is available on request
[xviii] Leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding as per Section 9 (3) of The Law Reform Act, Cap 26
[xix] Section 9, Fair Administrative Action Act
[xx] Article 165 (3) (d) (ii). See also, the Civil Procedure Rules, under Order 53 Rule 2
[xxi] Article 23 (1), (3), The Constitution of Kenya, 2010
[xxii] At Section 9 (1) (b)
[xxiii] Order 53 Rule 1 (1)
[xxiv] http://kenyalaw.org/caselaw/cases/view/78437/
[xxv] Article 154 (7), The Constitution of Kenya, 2010
[xxvi] This includes prior and adequate notice of the nature and reasons for the proposed administrative action, an opportunity to be heard and to make representations in that regard, notice of a right to a review or internal appeal against an administrative decision, and to be given a statement of reasons.
[xxvii] Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR
[xxviii] If only that now they are measured against Article 47.
[xxix] Republic v Kenya National ExaminationsCouncil Ex parte Ian Mwamuli
[xxx] Republic v Attorney-General ExparteSamuel Kamau Macharia & 2 Others
[xxxi] Nancy Makokha Baraza v Judicial Service Commission & 9 others
[xxxii] Speech by Chief Justice Willy Mutunga titled ‘The 2010 Constitution of Kenya and Its Interpretation: Reflections from the Supreme Court Decisions’, University of Fort Hare Inaugural Distinguished Lecture Series, October 16, 2014
[xxxiii] http://kenyalaw.org/caselaw/cases/view/96841/
[xxxiv] http://kenyalaw.org/caselaw/cases/view/43488
[xxxv] http://kenyalaw.org/caselaw/cases/view/106083/
[xxxvi] http://kenyalaw.org/kenyalawblog/grounds-for-judicial-review-in-kenya/#sthash.NpRJIZC0.dpuf
[xxxvii] Article 47 (7), The Constitution of Kenya, 2010
[xxxviii] Section 9 (5), the Fair Administrative Actions Act
[xxxix] The German Code of Administrative Court Procedure
[xl] The public/private/constitutional/administrative law distinction depends on whether the act challenged concerns rights and obligations under public law.
[xli] Administrative Law of the European Union, its member states and the United States by R. Seerden, P.81
[xlii] However, where third parties are affected, they must prove that even though the administrative action or omission was not directed to them, it has nonetheless affected their rights.
[xliii] Administrative Law of the European Union, its member states and the United States by R. Seerden, Pp..81-84
[xliv] Ibid P. 85 The decision referred to here is the decision on the objection filed before the actual suit.
[xlv] Section 4 of the enabling Act
[xlvi] http://www.standardmedia.co.ke/article/2000185697/nyachae-warns-of-oversight-vacuum-as-commission-for-implementation-of-the-constitution-tenure-nears-end
[xlvii] https://www.afghanistan-analysts.org/six-years-late-the-constitutional-commission-is-formed-but-will-it-take-on-president-and-parliament/
[xlviii] “Commissions are basically established to assist in delivery of government services. Some commissions are constitutional while some are created by ordinary law. Other than commissions, there are also independent offices, which are created to ensure transparent and accountable process of governance.” Wanjiku’s Power P. 46 in a version edited by the author and available on request
[xlix] The Constitution of Kenya, 2010, An Introductory Commentary, PLO Lumumba, Dr. Luis Franceschi P. 19
[l] Ibid P. 640
[li] Ibid
[lii] Ibid P. 20
