Lawyers want High Court consensus on Bill of Rights

By Wahome Thuku

Nairobi, Kenya: The High Court has thrown advocates into a state of confusion over its conflicting interpretation of human rights provisions in the new Constitution.

At least four judges, two of them have since left the Judiciary, have made contradicting decisions on the Bill of Rights, leaving lawyers at a loss on which is the correct legal position. The most recent is a decision on whether private entities can be held liable for breach of rights under the Constitution or whether this should only apply to State and State organs.

High Court judge Isaac Lenaola has ruled that private individuals and companies can’t be accused of violating constitutional rights, while his colleague David Majanja has ruled the opposite.

The two judges have also differed on whether the new Constitution can apply to acts of human rights violation committed before it was promulgated in August 2010.

Lenaola holds that the Constitution applies to all such acts while Majanja says it can’t apply to acts that occurred before August 2010.

In 2005, the then High Court judge Joseph Nyamu ruled that constitutional rights could not be enforced against private individuals and companies but only against the State and its organs.

Breaches

In April 2011, Lady Justice Jeanne Gacheche (now retired) 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 that some private individuals and bodies like clubs and companies are so powerful as to discriminate citizens or cause other constitutional breaches.

Lenaola and Majanja have now differed on the same issue. In a recent case involving President Uhuru Kenyatta and a local media house, Lenaola said: “Looking at Article 21 of the Constitution it’s the State and every State organ that are required 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)…”

Article 20(1) however states: “The Bill of Rights applies to all law and binds all State organs and all persons”. The Constitution defines a person to include a company, association or other body of persons whether incorporated or unincorporated.

Lenaola cited a ruling in a 1987 case of Teitiwnnang and Ariong that an individual or a group of individuals can not owe a duty under the fundamental rights provisions of the Constitution to another individual.

Human rights lawyer Mbugua Mureithi said the conflict can only be resolved by a Bench of more than one judge constituted by the Chief Justice. “This is what happens in the Court of Appeal whenever there are conflicting decisions,” Mbugua said.

Another lawyer added: “We need to know well before filing suits, what the correct position is, so that we can advise our clients appropriately.”