If Parliament passed laws that comply with the Constitution, courts wouldn’t interfere

The Speaker of the National Assembly has, not for the first time, attacked the courts, this time for declaring laws passed by Parliament unconstitutional.

Apparently, he said, “the Senate and the National Assembly do a lot, including debates and seeking advice from the Attorney General.” And “it is disheartening when lawmakers’ work is thrown away.”

He also reportedly said the law should be changed so that only the Supreme Court can “interpret laws”.

 

THE CYBERCRIME BILL

The Star linked Speaker Justin Muturi’s remarks to a court’s recent suspension of part of the Computer Misuse and Cybercrime Act. How great a job did the State Law Office and Parliament do of passing it?

Everyone has a right to privacy, which includes the right not to have their property (including their computers) searched, or the privacy of their communications infringed. Clearly, the Bill proposed procedures that would do those very forbidden things. The Explanatory Memorandum in the Bill said it would permit search and seizure of stored computer data, power to search without warrant and access to seized data.

It also created offences, including false publications, and child pornography. Any offence connected with stopping people making statements, or penalising them for doing so, interferes with their freedom of expression. Restricting certain forms of expression may be legitimate, but the point is that this must be justified.  Yet the Explanatory Memorandum went on to insist: “The Bill does not contain provisions limiting rights and fundamental freedoms”. Nought out of ten to the State Law Office for understanding of human rights. [Y1]

THE BILL IN PARLIAMENT

There was some public participation, and the relevant Committee “noted that majority of the submissions focused on the provisions of the Bill that seek to limit fundamental rights and freedoms guaranteed under …the Constitution such as the right to privacy and the freedom of expression.”

Various MPs pointed out issues of human rights, though it did not loom at all large in the concerns of most members. Otiende Amollo commented that the phrase “national security” was used without any definition, but where its use might have serious consequences. Notably, a person who interfered with a computer system or programme would risk double the usual fine or imprisonment, if this had an impact on national security.

So Parliament must be given credit for having recognised there were issues of human rights. But members seemed to have no idea how to deal with them. They did not accept most proposals for improving the Bill in this respect, and “national security” is still undefined.

Article 24 of the Constitution includes a provision that was intended to ensure Parliament considers very seriously and systematically the question of whether a proposed Act would limit rights, and, if so, whether the limitation is justified. It requires the law that creates any limitation must “specifically express the intention to limit that right…and the nature and extent of the limitation”.

Parliament (or the State Law Office) has not found it easy to draft a satisfactory way to put this. But, to take one example, in the County Assemblies Powers and Privileges Act, 2017, there is a provision prohibiting any legal document being served within the precincts of an assembly while it is sitting. It adds: “The right of access to justice under Article 48 of the Constitution shall be limited as specified under this section for the purposes of facilitating the conduct of the business and the affairs of a county assembly.”

This shows Parliament realised it was limiting the right of access to justice, and explains why. This seems satisfactory.

But in this case, Parliament (or the State Law Office) did two strange things. It included first this statement: “The objects of this Act are to…(d) protect the rights to privacy, freedom of expression and access to information”. To this, the only response is, “You must be kidding!”

The other thing they did is equally odd. It’s a bit technical. Article 33 of the Constitution, which recognises the right to freedom of expression, says that certain types of expression are not protected by this right. These types of expression include inciting violence, hate speech, and inciting ethnic, racial, religious or similar hatred. No one, who does one of these things, can say, “I was just exercising my right of expression”.

The Act says the freedom of expression is limited by the Act (correct!) but only if it involves “intentional publication of false, misleading or fictitious information” and also involves inciting violence, hate speech, and inciting hatred”.  It seems to suggest for any provision of the Act to have the effect of limiting freedom of speech, it must concern one of these things. But this is clearly nonsense. Child pornography has nothing to do with hate speech etc. And if publication of something misleading does in fact involve inciting violence etc, there is anyway no right to do this, as I have just explained. This shows complete misunderstanding of Article 33 of the Constitution. This new statement added by Parliament to solve a problem does nothing at all. Parliament needs to explain any limitation to a genuine right. There are plenty of such limitations in the Act, nothing to do with hate speech etc. But it has not justified them.

Furthermore, Parliament made no attempt to justify its limits on the right to privacy.

Another point is one I have made before: Parliament makes law with at least one hand tied behind its back. A Bill like this is very technical. MPs struggle with it (and they are not to be blamed for that). They need background explanatory documents that really explain the issues, the problems and the proposed solutions.  All they, apparently, get is an “Explanatory Memorandum” that explains virtually nothing. No wonder they focussed a lot on the personal: their grievances about attacks on them.

And we the people of Kenya have the right to know why law is being passed, and also to understand why Parliament makes changes to it. Most reports of parliamentary committees that discuss Bills in detail ― including this one ― are not published.

When someone challenges a piece of legislation in the High Court on the basis that it is unconstitutional because of the Bill of Rights, the discussion that takes place, in terms of argument by counsel for each aide and the court’s judgment, is infinitely more thoughtful and detailed than ever takes place when Parliament discusses similar issues. If Parliament took as much care, it would rarely pass unconstitutional legislation.

 

WHICH COURT?

The Constitution gives the role of deciding whether legislation is unconstitutional first to the High Court. It would have to be changed to allow these cases to go first and only to the Supreme Court.

Some countries do have such a provision. But if this was law here, we should have to wait years to get decisions about the constitutionality of laws.

In South Africa, any decision of a court that a law is unconstitutional has to be confirmed by the Constitutional Court.

My impression is that there are fewer of such cases in that country than in Kenya. This is not because of the perversity of Kenyan judges, I suggest, but the superior quality of the South African legislative process and drafting.

If a Kenyan court declares a law unconstitutional, usually the government, represented by the Attorney General, has lost the case. Sometimes it is the Director of Public Prosecutions. If they think the decision is wrong, they can appeal, ultimately to the Supreme Court.  If they do not, it seems reasonable to assume they think the decision was correct.

TO MR SPEAKER

So long as Parliament does not fully understand the laws it passes, does not understand what human rights are and how they may be limited, and gets useless advice from the State Law Office, they will continue to find their work declared unconstitutional.

By JILL COTTRELL GHAI