human rights law clinic 2013-2014 - university of bristol · university of bristol human rights law...

Edited by Richard Costidell (Director) and Eleanor Healy-Birt (Assistant Director)

With the assistance of Professor Rachel Murray and Dr Elina Steinerte

University of Bristol

Human Rights Law Clinic 2013-2014

Report on

Constitutional

Law in

Transitional States

Eleanor Healy-Birt and Jahan Meeran

Contents

1. Brief: .............................................................................................................. 1

2. Summary of Research .................................................................................. 2

3. Table of Cases Brought Under Article 22 of Kenyan Constitution 2010 6



Report on Constitutional Law in Transitional States

Page 1 of 10

1. Brief:

To investigate in what circumstances national courts in transitional states and

common law countries have held new constitutional rights apply retrospectively.

To find arguments in support of claiming rights under the Kenyan 2010 constitution

for cases on post-election violence that occurred in 2007/08.




Page 2 of 10

2. Summary of Research

1. The 2010 Kenyan Constitution was found “[not to be] retrospective in its

application” by D.S. Majanja sitting on the High Court in Nairobi in the case of

Republic v Public Service Commission of Kenya ex parte James Nene Gachoka

(Kenya)1 (see point 10 of the judgment).

Furthermore, there are no provisions which expressly or impliedly point to the

retroactive application of the 2010 Constitution.

2. The current Kenyan approach to retroactivity follows the common law presumption

that legislation is not retroactive. (per D.S. Majanja in Overseas Private Investment

Corporation & 2 Others v Attorney General (Kenya)2)

i. The common law presumes that an enactment is not intended to have retrospective

effect.

ii. It is for the legislature to decide whether a law should apply retrospectively. The

court’s role is to ascertain the intention behind the legislation.3

iii. To ascertain the legislature’s intent, the court is guided by the rules of

construction. These include the following:

a. if the legislation affects substantive rights it will not be construed to have

retrospective operation unless a clear intention to that effect is

manifested; and

b. if the legislation affects procedure only, prima facie it operates

retrospectively unless there is a good reason to the contrary.4

iv. ‘A rule of construction is not definitive and is only one of the factors to which

regard must be had in order to ascertain [the intention behind the legislation].’5

v. The court’s role is also to consider whether the purpose or effect of legislation is

such that it infringes on fundamental rights and freedoms of the individual. This

gives rise to the following principles:

a. With regards to non-criminal legislation it is a general rule that ‘all

statutes other than those which are merely declaratory or which relate

only to matters of procedure or evidence are prima facie prospective, and

retrospective is not to be given to them unless, by express words or

1 High Court at Nairobi, Miscellaneous Application 516 of 2005 [2013] eKLR.

2 High Court at Nairobi, Petition319 of 2012 [2013] eKLR.

3 Municipality of Mombasa v Nyali Limited[1963] E.A. 371 per J.A. Newbold, reiterated in Orengo v Moi & 12

Others (No. 3) (2008) 1 KLR EP 715. 4 Ibid.

5 Ibid.




Page 3 of 10

necessary implication, it appears that this was the intention of the

legislature. (Halsbury’s Laws of England, 4th Edition Vol. 44 at p.570)’6

b. A retroactive law is not unconstitutional unless it:

i. is in the nature of a bill of attainder;

ii. impairs the obligation under contracts;

iii. divests vested rights; or

iv. is constitutionally forbidden.7

vi. That being said, if the legislation provides for retrospective operation, courts ‘will

not impugn it solely on the basis that the same appears unfair or depicts a ‘lack of

wisdom,’ or applies retrospectively.’8

3. There are some possible common law exceptions to the presumption that laws are not

retroactive in application.

Public Interest Acts. In Harrison v Hammersmith and Fulham LBC (England),9

Brandon LJ analysed the case of Remon v City of London Real Property Co Ltd

(England)10

which concerned a 1920 act relating to overholding tenants. He implicitly

suggested that the 1920 Act was able to be applied retroactively because it was

remedial. In Statutory Interpretation: A Code, F. Bennion construed Brandon LJ’s

comments as creating a public interest exception.11

However, the existence of such an

exception has been criticised from a legal and practical perspective in Salembier’s

Understanding Retroactivity. First, Brandon LJ’s suggestions (and/or Bennion’s

interpretation of those suggestions) may not have been correct. In Remon the court

arguably rebutted the presumption against retroactivity by understanding the “clear

intention of the Legislature” rather than analysing the 1920 Act as falling within a

public interest exception.12

Second, case-law equally supports the proposition of there

being no public interest exception (see Angus v Sun Alliance Insurance Co

(Canada)13

, Thiessen v Manitoba Public Insurance Corp (Canada),14

MacKenzie v

British Columbia (Commissioner of Teachers’ Pensions) (Canada)15

). Third, in

many jurisdictions, all statutes are considered remedial or in the public interest and

thus an exception could easily become the rule. Fourth, remedial legislation is likely

6 Samuel Kamau Macharia and Another v Kenya Commercial Bank Ltd and 2 Others, (Kenya) SCK,

Application No. 2 of 2011[2012] eKLR reiterated in Overseas Private Investment Corporation & 2 Others v

Attorney General (Kenya) High Court at Nairobi, Petition 319 of 2012 [2013] eKLR. 7 Ibid.

8 per D.S. Majanja in Overseas Private Investment Corporation & 2 Others v Attorney General (Kenya) High

Court at Nairobi, Petition319 of 2012 [2013] eKLR. 9 [1981] 1 W.L.R. 650.

10 [1921] 1 KB 49.

11 See F. Bennion, Statutory Interpretation: A Code (London: Butterworths, 2nd edn, 1992), p 217.

12 [1921] 1 KB 49.

13 [1988] 2 S.C.R. 256.

14 1999 4710 (MB CA).

15 (1992) 94 DLR (4th) 532 (BCCA).




Page 4 of 10

to be beneficial and not detrimental to individuals’ rights thus removing the necessity

of a public interest exception.16

Legislation imposing a penalty where the aim is not to punish but to protect the

public. In Brosseau v Alberta Securities Commission (Canada)17

the Supreme Court

confirmed the statutory power of the securities commission to prohibit persons from

trading in securities at a time before the commission obtained its powers.

Nonetheless, this kind of legislation has often been viewed as incompatible with the

rule of law. For example, where the state increases the penalty for a crime after a

convicted person has committed that crime, the convicted person is usually entitled to

the lesser sentence. This is a constitutional imperative in:

- Hong Kong (Bill of Rights Ordinance (Cap 383), Art 12(1)). Applied in A

Solicitor v Law Society of Hong Kong & Secretary for Justice (Intervener)

(Hong Kong).18

- Canada (Canadian Charter of Rights and Freedoms, s 11)

- USA (US Constitution, Art 9(3)) Interpreted as applicable to criminal sanctions in

Calder v Bull (USA).19

At international level:

- ICCPR Art 15(1)

- ECHR Art 7(1)

In Kenya, where legislation affects substantive rights, it will not be construed to have

retrospective operation unless a clear intention to that effect is manifested.20

Conclusion: the above exceptions are controversial and difficult to establish. It is

therefore unlikely they will apply in our case.

4. The presumption may also be rebutted.

If legislation explicitly or impliedly provides it should be applied retroactively. E.g.

War Damages Act 1965 (UK). This is followed in Kenyan law: “if the legislation

provides for retrospective operation, courts “will not impugn it solely on the basis that

the same appears unfair or depicts a ‘lack of wisdom,’ or applies retrospectively.”

(See point 6 at ‘2.’ above)

16

See Salembier, J. Paul,. (2003). Understanding Retroactivity: When the Past Just Ain’t What it Used to

be. Hong Kong Law Journal. 99 (33), p.29. 17

[1989] 1 S.C.R. 301. 18

(2003) 6 HKCFAR 570. 19

(1798) 3 Dallas (US) 386. 20

Municipality of Mombasa v Nyali Limited (Kenya) [1963] E.A. 371 per J.A. Newbold.




Page 5 of 10

Common law innovations in the light of developments in social attitudes. R v R

(England)21

– finding a man guilty of raping his wife before any case-law existed,

making this unlawful. This is not a retroactive application of legislation, but of

jurisprudence.

5. Transitional justice prosecutions hold people to account either under domestic law in

force at the time of the event, or under international law.

Transitional justice is defined as a response to systematic or widespread violations of

human rights. It seeks recognition for victims and to promote possibilities for peace,

reconciliation and democracy. (International Center for Transitional Justice)

Kenyan Constitution 2010, s 50(2) protects the right not be convicted for an act

committed at a time when it was not an offence in Kenya or a crime under

international law.

Of the African countries who have passed a new Constitution since 2000, none have

implemented transitional justice prosecutions under their new constitutions.

The Democratic Republic of Congo adopted its current constitution in 2006. Prior to

this, several amnesties had been granted, the latest in 2005. These did not provide an

amnesty for international crimes. However, few cases have been brought for breaches

of human rights.

Rwanda had a new constitution in 2003. Prior to this, it passed a Genocide Law in

1996 to try people who had committed crimes of genocide between 1990 and 1994.

This law did not create new offences and merely specified procedure for prosecutions.

6. There is no precedent for retroactively applying a constitution as part of transitional

justice.

21

[1992] 1 A.C. 599.




Page 6 of 10

3. Table of Cases Brought Under Article 22 of Kenyan Constitution

2010

In alphabetical order

Facts occurred on or after 27th

August 2010 (date of promulgation)

Facts occurred before 27th

August 2010 (date of promulgation)

Events and subsequent proceedings span transition period

Case Name Hyperlink

Adasim Agencies Limited v Kenya Revenue

Authority

Petition 349 of 2012

http://kenyalaw.org/caselaw/cases/view/86590

Alex Maliekhe Wafubwa v Elias Nambakha Wamita

Petition 7 of 2012


Amy Kagendo Mate v Prime Bank Limited Credit

Reference Bureau

Petition 17 of 2013

http://kenyalaw.org/caselaw/cases/view/90844/

BA v Standard Group Limited

Constitutional Petition 48 of 2011

EXPRESS REJECTION OF RETORACTIVITY


Beach Bay Holdings Ltd v Ratim Relators Limited

Petition 11 of 2011

(procedural objection only)


Bidco Oil Refineries Limited v Attorney General



Bidco Oil Refineries Ltd v Attorney General



Charles Okello Mwanda v Attorney Genera

Petition 95 of 2011


Consortium for the Empowerment & Development

of Marginalized Communities v Chairman the

Selection Panel for Appointment of Chairperson and

Commissioners to Kenya National Human Rights

Commission



David Gitau Njau & 9 others v Attorney General


DETERMINED UNDER PREVIOUS

CONSTITUTION


Dennis Mogambi Mong’are v Attorney Generals



Duncan Otieno Waga v Attorney General

Cause 89 of 2013

http://kenyalaw.org/caselaw/cases/view/89485/ind

ex.php?id=3495





Page 7 of 10

EXPRESS REJECTION OF RETROACTIVITY

Duncan Otieno Waga v Attorney General

Petition 94 of 2011

EXPRESS REJECITON OF RETROACTIVITY


Eddaj Wanjiru Mbiyu v Commissioner of Police

Petition 13 of 2010


Erick Wambua Mailu v Republic

Miscellaneous Criminal Application 210 of 2011


Fadhila S Ali v National Housing Corporation

Environmental and Law Case 5 of 2012


Fatuma A Chamkono v District Commissioner

Petition 12 of 2012


Ferdinard Ndung’u Waititu v Independent Electoral

& Boundaries Commission (IEBC)

Election Petition 1 of 2013


Frank Mulisa Makola v Felix G. Mbiuki

Election Petition 5 of 2013


Godfrey Masaba v IEBC & 2 others

Petition 8 of 2013


Haithar Haji Abdi v Southdowns Developers Ltd



John Githongo v Harun Mwau

Petition 44 of 2012


John Githinji Wang’ondu v Coffee Board of Keny




John Kipng'eno Koech v Nakuru County Assembly

Petition 23 and 25 of 2011


John Wekesa Khaoya v Attorney General

Petition 60 of 2012


Joseph Mburu Kahiga & another v Kenatco Taxis

Limited & another

Petition 39 of 2012


Joshua Karianjahi Waiganjo v Attorney General

Petition 42 of 2013


JWI v Standard Group Limited

Petition 466 and 416 of 2013



Kapi Ltd v Pyrethrum Board of Kenya

Petition 54 of 2012


Kenya Data Network Limited v Kenya Reveue

Authority

Petition 87 of 2012


Kenya Planters’ Cooperative Union v Kenya

Commercial Bank Limited

Petition 8 of 2014


Kenya Society for the Mentally Handicapped v

Attorney General





Page 8 of 10

Petition 115A of 2011

Kerosi Ondieki v Minister of State for Defence &

another



Kerosi Ondieki v Minister of State for Defence &

another



Khatija Ramtula Nur Mohamed v Minister for

Citizenship and Immigration



Kipsiwo Community Self Help Group v Attorney

General

E&L Petition 9 of 2013


Leisure Lodges Limited v Commissioner for Lands

Petition 21 of 2010


Leisure Lodges Limited v Commissioner for Lands

Petition 21 of 2010


Major (Rtd) Ezra Imaana Kaibuta v Hon Attorney

General

Petition 13 of 2013


Mathatani Limited v Commissioner of Lands



Mathew Okwanda v Minister of Health and Medical

Services

Petition 94 of 2012


Micro & Small Enterprises Association of Kenya

Mombasa Branch v Mombasa County Government

Petition 3 of 2014


Mohammed Said v County Council Of Nandi

E&L Petition of 2013, formerly HCC Petition 5 of

2013

http://kenyalaw.org/caselaw/cases/view/83961/ind

ex.php?id=28

Nairobi Law Monthly Company Limited v Kenya

Electricity Generating



Northern Nomadic Disabled Person's Organization v

Governor County Government of Garissa

Constitution

Petition 4 of 2013


Parbat Siyani Construction Ltd v Director of Public

Prosecution

Cause 1 of 2012


Pauline Muia Maingi v Attorney General



PKA v MSA



Professor Daniel N Mugendi V Kenyatta University

Constitutional Reference 142 of 2011


Protus Buliba Shikuku v Attorney General http://kenyalaw.org/caselaw/cases/view/78299/




Page 9 of 10

Constitutional Reference 3 of 2011

‘We have duly construed this provision and are

satisfied that the provision is plain and clear that

rights, duties and obligations subsisting against the

government survive the transition. On that account

we rule that the petitioner's petition is properly

before this court, save that the said rights are not to

be availed under the defunct provisions but under the

current constitutional 2010 prescriptions.’

Pz Cussons East Africa Limited v Kenya Revenue

Authority



Republic v Amos Gichuhi Kimeria

Criminal Appeal 49 of 2012


Ricardo Epz International Company Ltd v Kenya

Revenue Authority



Royal Media Services Ltd v Attorney General



Satrose Ayuma v Registered Trustees of the Kenya

Railways Staff Retirement Benefits Scheme

Petition 65 of 2010


Sonia Kwamboka Rasugu v Sandalwood Hotel and

Resort Limited



Stanley Kilimo Kore v Edward Katama Ngeywa



Stanley Mungathia Daudi v Hon Cyprian Kubai

Kiringo Member of Parliament Igembe Central

Constituency

Petition 5 of 2013


Stephen Saitoti Kapaiku v Cocacola Sabco Nairobi

Bottlers Limited



Tito Alai Okumu v Commissioner of Customs



Trusted Society of Human Rights Alliance v Nakuru

Water and Sanitation Services Company

Petition 5 of 2013


Uhuru Muigai Kenyatta v Nairobi Star Publication

Limited



Velos Enterprises Ltd v Nairobi City County

Government



Walter Osapiri Barasa v Cabinet Secretary Ministry

of Interior and National Co-Ordination






Page 10 of 10

Watts Institute of Professional Studies Ltd v

Commissioner of Police

Petition 310 of 2012S


Willis Evans Otieno v Law Society of Kenya

Petition 37 of 2011


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