Over the past 20 years, Kenya’s legal and policy landscape has been shaped by court decisions that have clarified, expanded and set precedent on various issues touching on human rights, democracy, elections, criminal justice, environmental protection, et cetera.
The phenomenon in which individuals or groups use the courts to advance human rights and equality, or raise awareness on issues of broad public concern can be described as public interest litigation (PIL). This is also referred to as class action suits, strategic, impact or human rights litigation.
Alongside public education, lobbying, advocacy, campaigning, protests and negotiation, strategic litigation is a legitimate tool for achieving social change available to lawyers, campaigners, activists, victims and members of the public.
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In Kenya, strategic litigation can be divided into three epochs, namely: The old constitution, the transitional period and the current constitution.
Under the old constitution period between independence and the late '80s, very few people were able to lodge public interest cases due to certain prevailing features such as the fact that Kenya was under a single-party system, which meant that the Executive exerted hegemonic power over all arms and organs of government, including the Judiciary. It is worth noting that the president could hire and fire judges at will, making judges toe the line.
Another factor is that the constitution and the laws did not have provisions for public interest cases, and so the judges’ hands were tied due to lack of structure and legal precedence. Constitutional provisions and rules of procedure on locus standi - right or ability of a party to bring an action or to appear before the court on certain issues - were very restrictive.
One had to demonstrate to the court sufficient connection to the action challenged to support his participation in a case. It is for these very reasons that Nobel laureate Wangari Maathai’s court case attempting to stop construction of a 60-storey skyscraper at Uhuru Park was thrown out by Justice Norbury Dugdale in 1989. However, her protests managed to get the project quietly shelved.
The second era was the transitional period when multiparty democracy was fully restored and a new constitution was in the offing. During this time, the Judiciary was asserting its independence due to the prevailing political climate. The Mwai Kibaki government openly supported human rights and even set up an independent and well-funded National Commission on Human Rights to protect human rights.
Kenya had also undergone an attempted restoration of the Judiciary via the Justice Aaron Ringera judicial purge of 2003, which saw many judges fired for allegations of misconduct and corruption. Moreover, more qualified judges were being appointed.
During this period, the courts handed down landmark decisions such as the one allowing inmates to vote during the 2010 referendum; acknowledged the rights of an intersex inmate who was imprisoned in a male prison and determined that he had been subjected to inhuman and degrading treatment under the old constitution.
The proliferation of public interest litigation came about when Kenya adopted the current constitution, which for the first time codified judicial independence by removing appointment powers from the presidency and handing it to a multi-stakeholder and multi-interest Judicial Service Commission; directed judges not to be unreasonably restricted by procedural technicalities; expanded rules on those who can lodge cases; conferring every person the right to institute court proceedings when a right or fundamental freedom has been denied, violated or infringed, or is threatened.
It also elevated human rights through the Bill of Rights and included them in the national values and principles of governance, provided instructions on how and when rights can be justifiably limited and added international law as a source of law in Kenya.
Since then, citizens, civil society, trade unions, political parties, constitutional commissions and others have approached courts to assert their rights. Victims of torture have also been awarded compensation, the mandatory death penalty has been removed, freedom of expression and other civil and political rights have been expanded and major government and parliamentary initiatives stopped because of flouting the constitution.
One challenge to strategic litigation is the lack of enforcement of court decrees and judgements by the Executive. Despite approaching court to seek justice, the same is still denied when the government simply fails to enforce orders. Many Kenyans are ageing and dying as they wait for their dues.
Mr Kiprono is a Constitutional and Human Rights Lawyer.