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SUMMARY OF FACTS
1. The complainants are the Kenya Section of the International Commission of
Jurists (first complainant), Law Society of Kenya (second complainant) and
Kituo Cha Sheria (third complainant), all based in the Republic of Kenya.
2. The complaint was received at the Secretariat of the Commission on 18
October 2002 and is against the Republic of Kenya a state party to the
African Charter on Human and Peoples’ Rights (the African Charter) since
1991.
3. According to the complainants, the Constitution of Kenya Review Act
Chapter 3A of the Laws of Kenya (the Review Act) sets up the Constitution
Review Commission (CKRC) to facilitate the comprehensive review of the
Constitution by the people of Kenya and for connected purpose.
4. Pursuant to the provisions of the Constitution of Kenya Review Act and in
exercise of the rights conferred upon it by section 79 of the Constitution
of Kenya and article 9(2) of the African Charter, the first complainant
submitted a written memorandum on the judiciary and human rights in Kenya to
the CKRC.
5. The first complainant also facilitated an examination of the Kenya
judiciary by a panel of eminent jurists drawn from the Commonwealth, which
in turn presented its views in a form of a written memorandum to the CKRC.
Among other things, the written memorandum highlighted the fact that from
the programme of consultation, the advisory panel concluded that as
constituted, the Kenyan judicial system suffered from a serious lack of
public confidence and was generally perceived as being in need of
fundamental structural reform.
6. The second and third complainants submitted written memoranda pursuant to
their mandate and in exercise of rights conferred upon them by section 79 of
the Constitution of Kenya and article 9(2) of the African Charter. In the
memoranda, presentations were also made on how the Kenyan judicial system
could be improved.
7. In September 2002, the CKRC published a draft report of its work, which
collated the views submitted by Kenyans in terms of the Review Act. In so
far as the legal system was concerned, the CKRC reported, among other
things, that many Kenyans submitted that they had lost confidence in the
judiciary as a result of corruption, incompetence and lack of independence.
To this end, the CKRC recommended the inclusion of several basic principles
of a fair and acceptable judicial system into the draft Constitution.
8. After the publication of the report, Justice Moijo Ole Keiwua, a Judge of
the Court of Appeal of Kenya and Justice Vitalis Juma, a Judge of the High
Court, jointly sought leave before the High Court of Kenya to file judicial
review proceedings against the CKRC and its chairperson, Professor Yash Pal
Ghai.
9. Amongst other things, the judicial review proceedings sought an order of
certiorari for the quashing of the decision and/or proposals actual or
intended and/or recommendations of the CKRC and Professor Ghai concerning
and touching on the Kenyan judiciary contained in the CKRC report.
10. On 26 September 2002, Justice Andrew Hayanga, Judge of the High Court
issued an order granting leave of court to file a judicial review. The
complainants allege that the effect of this order was that in terms of order
53 of the Civil Procedure Rules of Kenya it doubled as a staying order on
further proceedings subject to the review application.
11. Subsequent to this ruling, the complainants allege that the High Court
barred the CKRC, its chairperson and a national forum yet to be constituted
known as the National Constitutional Conference from discussing or making
any suggestions in relation to any provisions touching upon the judiciary.
12. On 30 September 2002 the CKRC published its Bill of the Constitution of
Kenya in terms of the Review Act and further issued a notice that the
National Constitutional Conference would be held in early November 2002.
13. The complainants allege that the existence of the suit by the judges and
the staying orders granted by the High Court of Kenya pose an effective and
immediate threat to the denial of a new constitutional review process which
will result in the denial of a new Constitution that protects all human
rights to which all Kenyans are entitled under the African Charter and these
rights have been proposed to be guaranteed in the new Constitution of Kenya.
14. The complainants allege that the following articles of the African
Charter have been violated: articles 1, 7(1)(a) and 9(2).
PROCEDURE
15. The communication was sent by DHL and was received at the Secretariat of
the African Commission on 18 October 2002.
16. At its 33rd ordinary session, the African Commission considered the
communication and decided to postpone its decision on seizure pending
receipt of the following information from the complainants:
1. . Status of the work of the Constitution of Kenya Review Commission
(CKRC) bearing in mind the major developments that had taken place in
relation to constitutional review process in Kenya;
2. . Whether or not the complainants cannot challenge the staying orders
granted by the High Court before a court of superior jurisdiction in Kenya
because from the facts presented on the file, it is evident that the matter
is still before the High Court of Kenya.
17. On 29 August 2003, a letter was sent to the complainants reminding them
to provide the information requested for by the African Commission.
18. On 4 November 2003, the complainants transmitted a written response to
the additional information requested for by the African Commission.
19. During the 34th ordinary session held from 6 to 20 November 2003 in
Banjul, The Gambia, the complainants made oral submissions urging the
African Commission to be seized with the matter. The African Commission
considered the complaint and decided to be seized thereof.
20. On 4 December 2003, the Secretariat wrote informing the parties to the
communication that the African Commission had been seized with the matter
and requested them to forward their submissions on admissibility within
three months.
21. By letter and note verbale dated 15 March 2004, the parties to the
communication were reminded to forward their written submission on
admissibility of the communication.
22. On 25 March 2004, the Secretariat of the African Commission received the
respondent state’s written submissions on admissibility.
23. By note verbale dated 26 March 2004, the Secretariat of the African
Commission acknowledged receipt of the respondent state’s submissions on
admissibility and forwarded the same to the complainant by fax.
24. On 2 April 2004, the Secretariat of the African Commission received the
complainants’ written submissions on admissibility.
25. By letter dated 6 April 2004, the Secretariat of the African Commission
acknowledged receipt of the complainants’ submissions on admissibility and
forwarded a copy of the same by DHL to the respondent state.
26. At its 35th ordinary session held in Banjul, the Gambia from 21 May to 4
June 2004, the African Commission decided to defer further consideration on
admissibility of the matter to its 36th ordinary session because the
complainant undertook to provide the African Commission with information in
respect of miscellaneous case 1110 of 2002 — Justice Ole Keiwua and Justice
Vitalis Juma v Prof Yash Pal Ghai and two others which was heard in the High
Court of Kenya.
27. By note verbale dated 15 June 2004 addressed to the responding state and
by letter carrying the same date addressed to the complainant, both parties
were informed of the African Commission’s decision.
28. By letter dated 23 September 2004, the complainant was reminded to
submit the information they undertook to submit during the 35th ordinary
session of the African Commission.
29. At its 36th ordinary session held from 23 November to 7 December in
Dakar, Senegal, the African Commission considered the communication and
declared it inadmissible.
LAW ADMISSIBILITY
30. The African Commission was seized with the present communication at its
34th ordinary session which was held in Banjul, The Gambia from 6 to 20
November 2003. Both the respondent state and the complainants have presented
their written arguments on admissibility of the communication.
31. Article 56 of the African Charter governs admissibility of
communications brought before the African Commission in accordance with
article 55 of the African Charter.
32. The respondent state contends that the requirements of article 56(5)
have not been met by the complainants. Article 56(5) of the African Charter
provides: ‘Communications . . . received by the Commission, shall be
considered if they are sent after exhausting local remedies, if any, unless
it is obvious that this procedure is unduly prolonged’. The rule requiring
exhaustion of local remedies has been applied by international adjudicating
bodies and is premised on the principle that the respondent state must first
have an opportunity to redress by its own means and within the framework of
its own domestic legal system, the wrong alleged to have been done to the
individual.
33. The complainants submit that the circumstances that gave rise to this
communication are peculiar. It is based on a suit that was instituted by a
Judge of the High Court and a Judge of the Court of Appeal with the aim of
defeating the rights of Kenyan citizens to contribute to the constitution
making process in the country.
34. Therefore, the complainants claim that exhausting local remedies in this
case would be impossible and inordinately convoluted because the judiciary
is compromised and severely lacking in independence. Furthermore, the
complainants argue that the said judges who instituted the matter are
arguably representative of all the members of the judiciary and as such it
would be virtually impossible to obtain a fair hearing from the same
judiciary.
35. In applying the rule of exhausting domestic remedies, the African
Commission often requires the complainant to provide information on attempts
made to exhaust local remedies. [FN1]
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[FN1] Dumbuya v The Gambia [(2000) AHRLR 103 (ACHPR 1995
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36. While considering the file for seizure at its 33rd ordinary session, the
African Commission realised that the complainants were bringing a matter
that was evidently still before the High Court of Kenya. Consequently, the
African Commission deferred being seized with the communication and sought
clarification on developments that had taken place with respect to the whole
constitutional review process upon which some aspects of this communication
was based. In addition, the African Commission sought information from the
complainants as to whether or not they could not challenge the staying
orders that had been granted by the High Court before a court of superior
jurisdiction in Kenya.
37. In their response to the clarifications sought by the African
Commission, the complainants argued that it would not be possible for them
to be admitted as interested parties in the suit without leave of court.
They stated that leave is granted at the discretion of the judge and under
the circumstances they were apprehensive that leave would not be granted.
Furthermore, they argued that they could not practically enforce any right
of appeal against orders obtained in a suit in which the primary
respondent/appellant had boycotted the court’s jurisdiction; And even if the
primary respondents had defended the suit, the complainants submitted that
the likelihood of enforcing their rights as interested parties at Appeal
Court would have been unsuccessful because the Court of Appeal through
Justice Moijo ole Keiwua was itself a party to a suit in the nature of a
class action.
38. The complainants argued further that the principle that they want the
African Commission to settle is whether judges can hear matters that
actually affect them.
39. In their subsequent submissions on admissibility the complainants
informed the African Commission that indeed they went ahead together with
other members of the civil society in Kenya to make an application moving
court as ‘ordinary citizens and taxpayers’ to join them as interested
parties in the suit against the CKRC and the Chair of the CKRC. Their
‘application’ to be joined as interested parties in the judicial review
application was allowed.
40. Quite evidently from the situation described above, the complainants
eventually approached the courts even though they believed that no member of
the judiciary in Kenya would make a decision against the interests of their
fellow two judges. However, such concerns should have been eliminated when
the judges actually granted the application in their favour.
41. The African Commission is of the view that it is incumbent on the
complainant to take all necessary steps to exhaust, or at least attempt the
exhaustion of local remedies. It is not enough for the complainant to cast
aspersion on the ability of the domestic remedies of the state due to
isolated incidences. In this regard, the African Commission would like to
refer to the decision of the Human Rights Committee in A v Australia [FN2]
in which the Committee held that ‘mere doubts about the effectiveness of
local remedies or the prospect of financial costs involved did not absolve
an author from pursuing such remedies’.[FN3]
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[FN2] Communication 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997
[FN3] See also Lu´dvik Emil Kaaber v Iceland, communication 674/1995. UN Doc
CCPR/C/58/D/
674/1995 (1996). See also Ati Antoine Randolph v Togo, communication
910/2000, UN Doc
CCPR/C/79/D/910/2000 (2003)
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42. The African Commission would be setting a dangerous precedent if it were
to admit a case based on a complainant’s apprehension about the perceived
lack of independence of a country’s domestic institutions, in this case the
judiciary. More so, where, as in this case, the complainants have not
adduced ample evidence to demonstrate the validity of their apprehensions.
Furthermore, the complainants have not even tested the principle that they
wish the African Commission to settle before the domestic courts; and by so
doing they are in essence asking the African Commission to take over the
role of the domestic courts, a role which clearly does not belong to the
African Commission as a treaty body.4
43. The respondent state has argued that the issues in the communication
have been overtaken by events. Both justices Moijo ole Keiwua and Vitalis
Juma are currently on suspension and are under investigation by a tribunal.
They have also indicated that the application brought by justices Moijo ole
Keiwua and Vitalis Juma against the Chair of the CKRC and the CKRC is for
all intents and purposes dead because none of the parties have pursued it.
44. The African Commission has also been made aware that the respondent
state has set up special investigative tribunals to investigate those
members of the judiciary that have been implicated as having acted
unethically in the performance of their functions. Presented with such
information, the African Commission is of the view that the situation as it
is now allows the complainants to approach the domestic courts in Kenya
without any apprehension that there will be an unfair adjudication in the
matter.
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Communication 211/98, Legal Resources Foundation v Zambia [(2001) AHRLR 84
(ACHPR 2001)].
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45. Therefore, since the complainants now have locus standi in the judicial
review proceedings, they should exhaust the local remedies available and
also seize this opportunity to challenge the court orders that were issued
by the High Court before a superior court of jurisdiction in Kenya.
FOR THESE REASONS, THE AFRICAN COMMISSION declares this communication
inadmissible for non-exhaustion of local remedies. |
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