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Legislation relating to public interest litigation

Constitution of Kenya, 2010:Article 22:

(3) The Chief Justice shall make rules providing for the court

proceedings referred to in this Article, which shall satisfy the criteriathat ––

(a) the rights of standing provided for in clause (2) are fully facilitated;(b) formalities relating to the proceedings, includingcommencement of the proceedings, are kept to theminimum, and in particular that the court shall, if necessary,entertain proceedings on the basis of informal documentation;(c) no fee may be charged for commencing the proceedings;(d) the court, while observing the rules of natural justice,

shall not be unreasonably restricted by procedural technicalities; and (e) an organisation or individual with particular expertisemay, with the leave of the court, appear as a friend of thecourt.

(4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this

Article, and to have the matter heard and determined by a court.Article 47:

(1) Every person has the right to administrative action that isexpeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or islikely to be adversely affected by administrative action, the personhas the right to be given written reasons for the action.(3) Parliament shall enact legislation to give effect to the rights inclause (1) and that legislation shall —

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration.

Article 48:The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede accessto justice.

Article 67:(1) There is established the National Land Commission.(2) The functions of the National Land Commission are—

(f) to encourage the application of traditional disputeresolution mechanisms in land conflicts;

Article 159:(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2) In exercising judicial authority, the courts and tribunals shall beguided by the following principles—

(a) justice shall be done to all, irrespective of status;(b) justice shall not be delayed;

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(c) alternative forms of dispute resolution includingreconciliation, mediation, arbitration and traditional disputeresolution mechanisms shall be promoted, subject to clause(3);(d) justice shall be administered without undue regard to

procedural technicalities; and (e) the purpose and principles of this Constitution shall be

protected and promoted.(3) Traditional dispute resolution mechanisms shall not be used in away that —

(a) contravenes the Bill of Rights;(b) is repugnant to justice and morality or results inoutcomes that are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law.

Civil Procedure Act, Cap 21:

Section 1A:(1) The overriding objective of this Act and the rules madehereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to theoverriding objective specified in subsection (1).(3) A party to civil proceedings or an advocate for such a party isunder a duty to assist the Court to further the overriding objectiveof the Act and, to that effect, to participate in the processes of theCourt and to comply with the directions and orders of the Court.

Section 1B:(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—

(a) the just determination of the proceedings;(b) the efficient disposal of the business of the Court;(c) the efficient use of the available judicial and administrative resources;(d) the timely disposal of the proceedings, and all other

proceedings in the Court, at a cost affordable by therespective parties; and (e) the use of suitable technology.

Appellate Jurisdiction Act, Cap 9:Section 3A:

(1) The overriding objective of this Act and the rules madehereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to theoverriding objective specified in subsection (1).(3) An advocate in an appeal presented to the Court is under a duty to assist the Court to further the overriding objective and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.

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International Conventions:

1. Convention of 25 October 1980 on International Access toJustice

2. 1948 Universal Declaration of Human Rights

a. Article 8Everyone has the right to an effective remedy by thecompetent national tribunals for acts violating thefundamental rights granted him by the constitution or bylaw.

b. Article 10

Everyone is entitled in full equality to a fair and publichearing by an independent and impartial tribunal, in thedetermination of his rights and obligations and of anycriminal charge against him.

3. International Covenant on Civil and Political RightsArticle 141. All persons shall be equal before the courts and tribunals.In the determination of any criminal charge against him, orof his rights and obligations in a suit at law, everyone shallbe entitled to a fair and public hearing by a competent,independent and impartial tribunal established by law. Thepress and the public may be excluded from all or part of atrial for reasons of morals, public order (ordre public) ornational security in a democratic society, or when theinterest of the private lives of the parties so requires, or to

the extent strictly necessary in the opinion of the court inspecial circumstances where publicity would prejudice theinterests of justice; but any judgement rendered in a criminalcase or in a suit at law shall be made public except where theinterest of juvenile persons otherwise requires or theproceedings concern matrimonial disputes or theguardianship of children.2. Everyone charged with a criminal offence shall have theright to be presumed innocent until proved guilty accordingto law.3. In the determination of any criminal charge against him,

everyone shall be entitled to the following minimumguarantees, in full equality: (a) To be informed promptly andin detail in a language which he understands of the natureand cause of the charge against him;(b) To have adequate time and facilities for the preparationof his defence and to communicate with counsel of his ownchoosing;(c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself inperson or through legal assistance of his own choosing; to beinformed, if he does not have legal assistance, of this right;and to have legal assistance assigned to him, in any casewhere the interests of justice so require, and without

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payment by him in any such case if he does not havesufficient means to pay for it;

(e) To examine, or have examined, the witnesses againsthim and to obtain the attendance and examination of witnesses on his behalf under the same conditions as

witnesses against him;(f) To have the free assistance of an interpreter if he cannotunderstand or speak the language used in court;(g) Not to be compelled to testify against himself or toconfess guilt.4. In the case of juvenile persons, the procedure shall besuch as will take account of their age and the desirability of promoting their rehabilitation.5. Everyone convicted of a crime shall have the right to hisconviction and sentence being reviewed by a higher tribunalaccording to law.

6. When a person has by a final decision been convicted of acriminal offence and when subsequently his conviction hasbeen reversed or he has been pardoned on the ground that anew or newly discovered fact shows conclusively that therehas been a miscarriage of justice, the person who hassuffered punishment as a result of such conviction shall becompensated according to law, unless it is proved that thenon-disclosure of the unknown fact in time is wholly or partlyattributable to him.7. No one shall be liable to be tried or punished again for anoffence for which he has already been finally convicted or

acquitted in accordance with the law and penal procedure of each country.

4. African Charter on Human and Peoples RightsArticle 7

1. Every individual shall have the right to have his causeheard. This comprises:(a) the right to an appeal to competent national organsagainst acts of violating his fundamental rights as recognizedand guaranteed by conventions, laws, regulations and

customs in force;(b) the right to be presumed innocent until proved guilty by a

competent court or tribunal; (c) the right to defense,including the right to be defended by counsel of his choice;(d) the right to be tried within a reasonable time by animpartial court or tribunal.2. No one may be condemned for an act or omission whichdid not constitute a legally punishable offence at the time itwas committed. No penalty may be inflicted for an offencefor which no provision was made at the time it wascommitted. Punishment is personal and can be imposed onlyon the offender.

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