Constitutional division created by CJ busiest section at the High Court

By Wilfred Ayaga

Nairobi, Kenya: The Constitutional and Human Rights Division of the High Court deals with all matters touching on interpretation of the Bill of Rights.

Although the proposal to include a constitutional court was never included in the new constitution following recommendations of the Parliamentary Select Committee, Chief Justice Willy Mutunga later made an administrative decision to include the division in a new structure of the High Court.

In a speech titled ‘Progress Report on the Transformation of the Judiciary, the First Hundred and Twenty Days’, which he delivered on October 19, 2011 Dr Mutunga explained the court’s role as that of “addressing the many issues around the interpretation and enforcement of our expanded Bill of Rights.”

Despite this clearly defined line, there is an increasing number of cases in the constitutional division where judges constantly challenge petitioners to point out the constitutional issues in the matters they raise.

The question ‘What is the constitutional issue in your petition?’ has become a common one among judges of the division.

Dissatisfied litigants

Although any judge of the High Court should be able to handle any matter before him, litigants who are dissatisfied with decisions of judges in other divisions have constantly rushed to the Constitutional and Human Rights Division with claims that their rights have been abused.

This trend has led to a multiplicity of cases within the division. According to statistics from Kenya Law Reports, last year alone, the constitutional court handled 600 petitions, .

Predictably, civil society activists are some of the most ardent backers of the Constitutional and Human Rights division of the High Court.

Activist Okiya Omtatah Okoiti, who is one of those with the highest number of cases pending in the division, argues that the division ensures that authorities meet their obligations and their decisions can always be accounted for.

One matter that however, stands out as having attracted the highest number of constitutional reviews is that involving the ICC trials of President Uhuru Kenyatta and Deputy President William Ruto.

There were more than three petitions seeking a review of the matter, including that by the Kenya Conservative Forum and another by two activists Ken Bartai and Felix Kiprono.