Making the constitution of Kenya the constitution for Kenyans

‘To none shall we sell, to none deny or delay, justice or right’. This was the promise of Magna Carta – or the promise of the besieged King John to his barons. But the courts themselves have put major obstacles in the way of achieving justice (for the ordinary person – barons have usually been all right!). Not only was the law that the courts developed very technical, so that there was no prospect of ordinary people getting justice without employing lawyers – whose services have never come cheap – but they set up all sorts of procedural barriers that have made it hard even to go to court, let alone win.

Rules about how to start cases, rules about who could start cases (usually only those with a personal interest at stake – this is known as the question of ‘standing’), filing fees, and rules making it hard to begin cases on behalf of large groups of people have all stood in the way of justice for the poor. It has been as though the more people are affected by injustice the harder it is to get the issue before the courts. Because they were the ‘king’s courts’ they thought it was impossible to order the government to do anything. In fact you could not bring a court case against the government without getting the Attorney-General’s permission to do so! This was changed not by the courts but by parliaments of most countries, as was the rule making it a crime to support another person to do so if you had no personal interest in the outcome (the crime, and civil wrong, of maintenance) – though there had been an exception for charity.

In the late 1970s and early 1980s the Indian Supreme Court began to tackle some of these obstacles to justice. One explanation has been that the court was determined to rescue itself from the opprobrium into which it had fallen because of its obsequious support of Indira Gandhi during the emergency period in the mid-1970s.

Arguably the first Indian PIL (public interest litigation) case was one that involved something as prosaic as drains: citizens asked the court for orders against the Ratlam Municipal Council to fulfil its obligations – under existing laws – to deal with pollution. The great Justice Krishna Iyer said in his inimitable style, ‘The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of “standing” of British Indian vintage’…..He went on to speak (remarkably) of ‘militant people's will’ that ‘takes over people's welfare institutions, energises the common human numbers, canalises their community consciousness, forbids the offending factories from polluting the environment, forces the affluent to contribute wealth and the indigent their work and thus transforms the area into a healthy locality vibrant with popular participation and vigilance, not neglected ghettoes noisy with squabbles among the slimy slum-dwellers nor with electoral “sound and fury signifying nothing”.’ The court ordered the construction of public toilets, street cleaning and filling up of cesspits, among other things. This pattern of ordering authorities to do what the law actually already required them to do has been common.

A leading Indian lawyer, Rajeev Dhavan, wrote that Krishna Iyer ‘masterminded a judicial policy that made two significant, enduring moves towards establishing the judiciary as an institution of governance. The first of these was to invite ordinary people – which in effect meant social activists – to locate their cases before the Supreme Court, and to devise a new procedure to deal with such causes. The public interest law movement was directed to establish a direct link with India’s discontented elements and to give them a voice in governance of a kind they had never had before’.

The court has relied upon its powers under the constitution to enforce human rights to thrust aside the procedural limitations on its powers to do justice for the poor. It allowed cases to be started in informal ways – by a letter, a postcard or a telegram. (as far as I can see, petitions are not yet filed by e-mail). It allowed cases to be brought by organisations – or even by individuals – who had no personal stake in the case but were motivated by the desire to help those who could not realistically go to court themselves. It would not require all the evidence to be collected and presented by the sufferers themselves – an unrealistic expectation very often – but would appoint an expert or a committee itself to investigate. And it would order the government to carry out its obligations and report back after a specified time on what it had done.

If Krishna Iyer was the father of PIL, its mother was a woman born in Kenya: Pushpa Kapila Hingorani, who over the years has done not far short of 100 PIL cases. Two of the most appalling social injustices she brought before the Supreme Court involved prisoners in Bihar. The first was based on a newspaper report of a visit to Bihar’s main jail, which revealed that many people were detained, awaiting trial, for far longer than they could ever have been sentenced for – if ever convicted. Justice Bhagwati said ‘We are talking passionately and eloquently about the maintenance and preservation of basic freedoms. But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed?’

Even more shocking was the case of prisoners awaiting trial having been deliberately blinded by police. The Supreme Court awarded compensation. And in these cases the court made rulings about bail, and legal aid for the poor, as well: ‘Let it not be forgotten that if law is not only to speak justice but also deliver justice, legal aid is an absolute imperative. Legal aid is really nothing else but equal justice in action.’ (Bhagwati again) A few years later Hingorani brought to the court the case of a prisoner who had been detained for 14 years after he had been acquitted! As recently as 2003 she was before the Supreme Court with the case of a public corporation employee who had not been paid – and numbers of who were destitute or had even committed suicide. Again this case had come to light in the press.

Over the years, cases brought by other lawyers have included pollution of the River Ganges and environmental degradation of the Himalayas, starvation deaths, and labourers paid so little for a public project that they were treated as ‘bonded labourers’. In various cases brought by another indefatigable PIL lawyer the Supreme Court ordered all buses in Delhi to be changed to those fuelled by compressed natural gas, to do away with the pollution caused by diesel, ordered tanneries on the Ganges closed, and air polluting industries near the Taj Mahal shut down. It has ordered roads to be built. It has ordered the national government to set up a committee to devise ways of dealing with the shortage of water. It has laid down guidelines to prevent the sexual harassment of working women.

What does this have to do with the Constitution of Kenya? The procedural innovations of the Supreme Court have inspired various constitution makers. First perhaps those of the Constitution of Nepal, 1990, followed by the South African Constitution of 1996. And now the Constitution of Kenya says (Article 22) that ‘Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened’ and this includes people or organisations acting for others or in the ‘public interest’. Furthermore, ‘formalities relating to the proceedings, including commencement of the proceedings’ must be kept to the minimum’, no court fees may be charged, and the courts must ‘not be unreasonably restricted by procedural technicalities…’.

The Kenyan courts have some way to go before they achieve the sort of impact that the Indian courts have had. Other aspects of the Constitution may help to do away with rules that may still impede justice. Why should it be a problem to issue an injunction against the state? Kenya does not have a monarch – which was the original reason for the reluctance to issue injunctions because the penalty for disobedience was imprisonment! The playing field as between the citizen and the state is not even. Kenya should emulate other countries – including Mauritius – that have done away with the old rule. The courts could do it, in fact.

It is important not to be romantic about PIL. Cases can easily clog the courts – already behind in dealing with cases. Like any other procedure it can be hijacked by the wealthy, and abused. A former Solicitor-General of India has complained that PIL can degenerate into ‘Private Interest Litigation, Political Interest Litigation, and above all Publicity Interest Litigation’. The Indian courts have issued guidance to prevent this happening. Even if things are not so extreme, in recent years even the Supreme Court seems to have been more deferential to government, globalisation and the concerns of the middle classes, and the High Courts perhaps more so. There are problems of enforcement of courts’ decisions, and of long drawn out cases, as well as of evasion: though a court ordered 127 tanneries closed because they polluted the River Ganges, many of the tanneries just moved downstream!

The path is not easy – full preparation of cases is hard work, judges risk being attacked as ‘activist’ and media, civil society and the people must accept that persistence on their part is perhaps the most important ingredient. There are things that courts are not well suited to do, and the courts alone cannot work miracles. To quote former Chief Justice Bhagwati of India:

We must always remember that social action litigation is a necessary and valuable ally in the cause of the poor, but it cannot be a substitute for the organisation of the poor, development of community self-reliance and establishment of effective organisational structures through which the poor can combat exploitation and injustice, protect and defend their interests, and secure their rights and entitlements.

But there is a constitutional mandate for the Kenyan courts to take up that task of being an ‘ally in the cause of the poor’, and even the less poor, though the main effort ought to be for the poor who cannot so easily take up the legal cudgels on their own behalf. The Indian cases show that making rights under the Constitution a reality is best achieved by a partnership between committed judges, journalists both as publicists and litigators, lawyers, civil society and the people. These various groups in Kenya, including some judges, are beginning to take the Constitution and its rights more seriously. More can be done. Will Kenya have its Ratlam case – based maybe on the Public Health Act 116:

It shall be the duty of every local authority to take all lawful, necessary and reasonably practicable measures for maintaining its district at all times in clean and sanitary condition, and for preventing the occurrence therein of, or for remedying or causing to be remedied, any nuisance or condition liable to be injurious or dangerous to health, and to take proceedings at law against any person causing or responsible for the continuance of any such nuisance or condition with Article 43 of the Constitution saying that ‘Every person has the right … to reasonable standards of sanitation’? Nairobi City Council? Anyone?

As I complete this, I read in the newspaper about a woman who retired from the police after 30 years’ service, and 11 years later still has not received her retirement dues. Indian High Courts have begun PIL cases on no more information than that – beginning the case of their own volition.

Will the courts of Kenya become the courts for Kenyans?

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Jill Cottrell Ghai has been a law teacher for 40 years, teaching – among other subjects – economic, social and cultural rights, on which she has also written. She has been an advisor on constitution-making in several countries.
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