Greater external input in legal process

By Pravin Bowry

Kenya: The rush to seek redress by citizens, organisations and corporate and even governmental bodies on virtually every aspect of life is evident in our various news media. The legal evolution under what is termed as ‘administrative law’ means that the Judiciary (in what some perceive as judicial activism) is playing an increasing role in governance.

Courts have in the recent past intervened in the matter of lecturers’ strike, the school laptop saga, the Standard Gauge Railway project, and the barring of prosecutions in many highly publicized criminal cases.

Increasing attention to human rights, the Bill of Rights, fundamental rights and constitutionalism, is now a way of legal life and courts are putting flesh onto the bare bones of statutes.

Government by who?

A citizen is left in total confusion as to what is happening when matters of governance reach the courts and appeals erode the merits of any change. Technical questions should not obscure the shift in the constitutional centre of gravity towards the Judiciary as it (with increasingly enhanced powers) interprets and expounds on activities of public authorities against human rights standards or on merits or demerits or on consciousness of decision.

Members of the National Assembly, senators and governors are branding all what is happening as “government by judges”.

The High Court’s Division of Judicial Review and Constitutional Division is busy adjudicating on past and present excesses.

To appreciate the legal position of judges as against parliamentary supremacy, courts have in all common law countries stated that even an Act of Parliament made against “natural equity” is void itself.

To illustrate the point, an English judge graphically pointed out that it is very reasonable and true saying that if an Act of Parliament should ordain that the same person should be party and judge or, which is the same thing, judge in his own cause, it would be a void Act of Parliament.

Powers must be exercised proportionately and in accordance with the rules of natural justice. The right to a fair hearing and the rule against bias are of great importance. The rule against bias demands that administrative officials and agencies act impartially and without prejudice.

Officials and agencies must not exceed the legal limits of their powers as defined by statutes, the common law, and the Constitution. This must at all times be done while respecting the fundamental rights and freedoms guaranteed by the Constitution

The decisions of the officials and agencies must be based on true facts and correct legal principles. These decisions must be free from both error of fact and error of law.

Discretion must be exercised reasonably, for proper purposes, and flexibly on the basis only of relevant considerations. Administrative justice is absent where discretion is abused.

Power should not be delegated except in cases where it may reasonably be inferred that it was intended to be delegable. One aspect of this principle is the rule that the participation of non-members in the deliberations of a collective body may invalidate its acts. For instance, the decision of a disciplinary committee is likely to be invalid if any non-member of the committee has taken part in its proceedings.

Officials and agencies must perform duties as prescribed by law. They must also act in good faith, consistently, and in accordance with any legitimate expectation their conduct has raised.

A person who is aggrieved by the action or inaction of an administrative official or agency can challenge it through judicial review. Judicial review is a court process by which courts exercise control over the exercise of administrative power.

An administrative act which offends any of the foregoing principles is illegal and can be quashed by a court of law through an order of certiorari. Once quashed, it ceases to have any legal effect and will typically have to be re-done in compliance with the law.

Where there is unlawful administrative inaction, that is to say, where officials and agencies fail, refuse or neglect to perform their legal duties, courts can compel them to perform these duties through an order of mandamus.

Where it is clear that an administrative authority is about to exceed its powers or misuse them, a court can stop the coming illegality by issuing an order of prohibition.

There is also non-judicial control of administrative power, notably by public sector ombudsmen, the Auditor-General and Parliamentary Select Committees. Though these can only recommend, not order, remedial action, they help in rooting out maladministration.

Absolute values

All this means that the courts will at every opportunity apply and enforce absolute values, which are enunciated in not only the Constitution, but in all laws.

Article 10 of the Constitution is being given unprecedented muscle. Patriotism, national unity, devolution, rule of law and participation of people are not going to be the preserve of academicians. Constitutional principles of human dignity, equity, social justice, non-discrimination, protection of the marginalised, good governance, integrity, transparency and accountability are fast becoming a living reality enforced and implemented by the principle of administrative law.

Each Kenyan must learn to appreciate the force and indeed, the limitations of this law.

The writer is an Advocate of the High Court of Kenya

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