Judges’ interpretations of Bill of Rights confusing

By Wahome Thuku

Kenya: Can the Bill of Rights in Chapter Four of the Constitution be enforced against private individuals, organisations or companies? That is the question Kenyan lawyers are grappling with, following conflicting decisions by the Judiciary.

The genesis of the conflict is a pronouncement made by a judge in 1987 in the Republic of Kiribati, a tiny island nation in the central tropical Pacific Ocean.

In that famous case, Teitiwnnang v Ariong, judge Maxwell stated that a private individual could not make a claim for declaration against another private individual for breach of fundamental rights under the Constitution.

“The rights and duties of individuals are regulated by private law,” he held. “The Constitution on the other hand is an instrument of Government. It contains rules about the Government of the country. An individual or a group of individuals cannot owe a duty under the fundamental rights provisions to another individual so as to give rise to an action against the individual or group of individuals.”

In 2005 and 2006, then High Court judge Joseph Nyamu upheld the decision in a number of cases. In one case he held that fundamental right in the Constitution are principally against the State because the Constitution’s function is to define what constitutes Government and it regulates the relationship between the government and the governed.  He said individual interests are taken care of in private law.

However, in a judgement in May 2008, another judge Hatari Waweru said, “I respectfully disagree with the principle that has been followed by some brother judges of the High Court, to the effect that remedies for violation of fundamental rights are available only against the State and not against private.”

Respect for human rights

On April 6, 2011 yet another judge Jeanne Gacheche dismissed Nyamu’s position reasoning that in other countries fundamental rights apply both vertically, against the State, and, horizontally, against other persons.

“The rigid position that human rights applies vertically is being overtaken by emerging trends in the development of human rights law and litigation,” Gacheche said.

She said the society must appreciate some private individuals and bodies like clubs and companies are so powerful as to discriminate citizens or cause other constitutional breaches.

The issue was raised again in January last year by former Law Society of Kenya’s chief executive Betty Sungura Nyabuto, who claimed a petition for enforcement of fundamental rights could not be made against a private person.

High Court judge David Majanja disagreed, stating, “The Bill of Rights applies to all persons and binds everybody. However, the nature and extent of a particular right may be limited in scope to apply to the State and not a private individual.”

On April 20, last year another judge, Lady Justice Mumbi Ngugi, also concurred that private persons and organisations could be held liable if found to have violated constitutional rights.

“The Constitution contemplates both vertical and horizontal application of the Bill of Rights. It’s not just the State which is under an obligation to observe and respect human rights. The Constitution requires all persons as well as the State to respect its provisions generally and the provisions of the Bill of Rights in particular,” she argued.

She quoted Article 2(1) which states that the Constitution is the supreme law and binds all persons and all State organs at both levels of government.

She further quoted Article 20(1) which provides that the Bill of Rights applies to all law and binds all State organs and all persons.

“The Bill of Rights is intended to be binding on all persons, whether natural or legal, incorporated or unincorporated,” Justice Ngugi held.

On May 7, last year, then Deputy Prime Minister (now President) Uhuru Kenyatta filed a petition at the High Court against the Nairobi Star Publications company for alleged violation or infringement of his fundamental rights.

Njenga Gunman

Uhuru sought a declaration the company had violated his right by linking him to a plot to kill former Mungiki leader Maina Njenga. He sought a permanent injunction to stop the company from publishing any other such claims against him and also compensation for gross violation of his fundamental rights.

The company had on April 24, the same year published a story in their local daily The Star with a photo on the front page and a headline ‘Uhuru denies links to Njenga gunman’.

On May 10, last year Star Publications filed a Notice of Preliminary Objection on four grounds. The main ground was that the fundamental rights and freedoms set out in the Bill of Rights in the new Constitution cannot be enforced by a private individual as against another private individual but only the State and State organs.

The company relied on the decisions made by judge Nyamu. They also relied on Article 21 of the Constitution which provides that it is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

Uhuru argued that where the contravention emanates from a government-cum-governed relationship, then, the Attorney General is the party to sue but in situations where the alleged contravention is between private individuals (persons) as defined then such private party is the right party to sue.

Justice Isaac Lenaola quickly pointed out the subject was quite clear. Quoting both the decisions by Justice Nyamu and the Teitiwnnang case he said, “I am in agreement with the above findings and looking at Article 21 of the Constitution, it is the State and every State organ that is to observe, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

No such obligation is imposed on an individual (including a company) and so I am in agreement with the respondent arguments in that regard.”

The judge considered all the four grounds raised by Star Publications, and concluded that Uhuru’s case was not so serious as to attract constitutional sanction.

He allowed the objection by the company and struck off Uhuru’s petition. He granted him permission to make the claims in a civil rather than a constitutional court or to file a complaint before the Media Council of Kenya for action.

Given this state of affairs, the conflict may have to go up to the Supreme Court for final determination on whether or not the Bill of Rights can apply to private entities.