Until 2010, street protests were the preferred mode of expressing public outrage with just about everything. Demonstrators tested their resolve against the state as agitation turned into bloody confrontations due to violent police repression.
Then came the new Constitution and new avenues for freedom of expression, empowering citizens to challenge government policy and action through the courts.
And many have.
The new laws reignited passion in public interest litigation which had suffered since the heydays of the Public Law Institute and Kituo cha Sheria.
Now Public Interest Litigation (PIL) is the rage once again, with activists funneling their energies through the courts and quasi-judicial bodies to challenge policies and state actions deemed to be oppressive.
Defence of the Constitution and public good is no longer the preserve of loud political demonstrations. It is championed in the corridors of justice by a small coterie of dedicated individuals and organisations little celebrated but whose actions have had far reaching implications for the rule of law and democracy.
They include Okiya Omtatah, Adrian Kamotho Njenga and lawyer Apollo Mboya. Then there are the indefatigable nonprofit organisations like Katiba Institute, Kenya Human Rights Commission, Africa Centre for Open Governance (Africog) and the Law Society of Kenya that are working daily to secure the rights of ordinary Kenyans.
“History shows that pubic interest litigation has been a particularly critical tool for testing, clarifying and shaping law, policy and practice in societies across the globe,” Kenyans for Peace with Truth and Justice (KPTJ), says on its website.
This month alone, thanks to PIL, controversial amendments to election laws were nullified — as was the plan by the Communication Authority to access private communication data of mobile phone subscribers. Other landmark rulings include the revocation of a pre-bar exam for aspiring lawyers who attained degrees in Kenya, reversing of additional taxes on beverages and cosmetics and the lifting of mandatory death sentences, among many issues.
But much like most noble initiatives, public interest litigation has on occasion come under scrutiny for abuse by some individuals who camouflage personal wars as fights for the common citizenry.
“At times public interest litigation has been abused, for example, when third parties have disclosed some very privileged and confidential information and used it under the guise of public interest litigation,” LSK president Allen Gichuhi told the Star in an interview.
“There are pros and cons. At times public interest litigation is useful for unearthing corruption but at times it is used to settle personal scores,” He added.
Gichuhi says that during his term the society will pursue more public interest matters going forward, following accusations that it has not been aggressive enough.
“We have an LSK council retreat this week and we are actually reconstituting our committee that will deal with public interest litigation. We want to get very involved in it and as soon as the committee is reconstituted, we will now take up a lot of public interest matters that generally affect the country at large,” Gichuhi said.
Some of the public interest suits filed by the LSK in the recent past include a petition against the Kenya Revenue Authority seeking to stop advance payment of capital gains tax, another against the Insurance Regulatory Authority which has sought to clip the agency’s powers, and against the Lands ministry over digitisation of records.
Okiya Omtatah, who has become the father of public interest litigation in Kenya, blames old laws for frustrating challenges to policies and actions that trampled the public’s rights.
“The question of locus (authority) used to lock out very many public interest litigants. We now have expanded democratic space and clear jurisprudence (theory of law),” Omtatah said in an interview.
FIGHTERS FOR PUBLIC INTEREST
ADRIAN KAMOTHO NJENGA
Adrian Kamotho Njenga wears many hats.
A trained lawyer, accountant and information technology expert, Njenga has tested the limits of diplomacy in solving some problems.
“When you are diplomatic, people take you lightly. They only take matters seriously when they are served with court documents,” he says of his entry into litigation.
Among the giants Njenga has successfuly tackled ae the Kenya School of Law (KSL) and the Communications Authority (CA).
Last year, he sued the KSL, which had introduced a new exam for law graduates seeking to undertake its Advocates Training Programme — the last step before being admitted to the roll of advocates.
The introduction of the exam, which was to be charged, angereseveral fresh graduates. Njenga said graduates who attained their degrees in Kenyan universities should not have to go through the pre-bar exam.
In 2014, the activist sued the Communications Authority to stop it from appointing new board members. High Court judge George Odunga allowed Njenga’s application after finding that the CA had not followed the law in appointing the eight directors.
Njenga had been nominated for a place on the CA Board but his name was not gazetted as required by law. He sued after his efforts to settle the query outside court failed.
Njenga has two Bachelor’s degrees — one in Accounting and Computer Studies and another in Law. He also has a Master’s of Business Administration degree, specialising in Information Science and is pursuing a PhD in Strategic Information Science from the University of Nairobi.
Njenga is also a certified public accountant, having completed all six sections of the accounting certification courses.
The activist insists that before moving to court, he still reaches out to institutions and individuals to remedy any perceived wrong.
“There are times I have made use of alternative dispute resolution mechanisms and it has worked. I am not a trigger-happy litigant. I only go to court when I have a watertight case and in most times I have succeeded,” says the 36-year-old lecturer at the University of Nairobi.
In the run up to the August 2017 General Election, the the government through the Presidential Delivery Unit started a multifaceted publicity campaign that included outdoor, electronic and print advertisements in mainstream and social media under the hashtag GOKDelivers. The PDU also set up a website, delivery.go.ke, which listed a number of projects undertaken by the the Jubilee administration.
To a number of Kenyans, nothing about the campaigns was suspect. A few raised concerns about election laws barring the government from publicising its achievements during the campaign period, but they were mostly ignored.
After picking up on the growing concerns on the use of public funds to push for partisan political activities, Katiba Institute wrote to the PDU, demanding to know how much had been spent on the campaigns and why the information was not made public.
Katiba sued the PDU, State House chief of Staff Joseph Kinyua and his deputy, Nzioka Waita, for orders to compel them to provide information on how much had been spent.
Following pressure from the suit, the PDU stopped the campaign. Four months later, High Court judge Enoch Chacha Mwita ruled that the campaigns were illegal. The ruling has no doubt shaped election laws, as it will bar parties in power from using public funds to gain unfair advantage over the opponents at the polls.
One month later, the Supreme Court would deliver a judgment in a two-year battle between two convicted murderers — Francis Muruatetu and Wilson Mwangi — who had challenged the mandatory death penalty for individuals found guilty of murder and robbery with violence.
When the matter came up before the Supreme Court in 2015, the justices admitted to the case as amicus curiae (friends of the court): the Katiba Institute, the Death Penalty Project, the Kenya National Commission on Human Rights, International Commission of Jurists-Kenya Chapter, Legal Resources Foundation and then Attorney General Githu Muigai.
The organisations argued against the mandatory death sentence in support of Muruatetu and Mwangi, which moved the Supreme Court judges into quashing the punishment.
After the Supreme Court judgment, the death sentence has been turned into an option prescribed at the discretion of judges determining murder and robbery with violence cases.
The Attorney General’s office has since formed a 13-member task force to set up a framework for re-hearing the cases of people who have been handed the mandatory death sentence.
The fresh hearings will only be limited to sentencing.
But the two suits just scratch the surface of cases that Katiba is involved in, on behalf of the ordinary citizen.
Over the last seven years, the Institute has been one of the most prominent organisations that have taken to the courts to safeguard the 2010 Constitution.
The brainchild of constitutional law academic Yash Pal Ghai, his wife law professor Jill Cottrell Ghai, and constitutional law practitioner Waikwa Wanyoike, has since its inception in 2011 participated in no less than 100 court cases.
“Their motivation for founding the Institute was threefold: firstly, assisting in dissemination and awareness creation around the 2010 Constitution,” says Katiba’s litigation and research counsel Christine Nkonge. “Secondly, facilitation and provision of technical support to the State and other stakeholders on the new systems of governance that were set up by the Constitution; and thirdly to monitor the implementation of the Constitution to ensure it is faithfully carried out,” Nkonge told the Star.
Katiba Institute has filed more than 80 cases and been involved in over 20 others as either an interested party or amicus curiae.
Just last month, the Institute obtained an order suspending the swearing in of Olive Mugenda, Felix Koskei and Patrick Gichohi as members of the Judicial Service Commission.
The three had been nominated by President Uhuru Kenyatta but Katiba moved to court arguing that there was no evidence of openness, fairness or diversity in their planned appointments. The suit is ongoing and could set parameters for state appointments and nominations in the future.
Its efforts have, however, come at a price. The organisation has been on the receiving end of hostility by government agencies such as the NGO Co-ordination Board, which last year attempted to shut Katiba’s operations over allegations of money laundering.
“Katiba Institute staff have faced accusations of criminal misconduct by the Non-governmental Organisations Co-ordination Board, which we felt were defamatory. The issue is pending for determination before the High Court,” Nkonge added.
Nkonge added that Katiba identifies issues of public interest that may need court intervention through in-house research, reviewing laws enacted by Parliament to ensure that they are in line with the Constitution and through complaints by members of the public.
Katiba receives funding from charities and people of goodwill with which it settles its bills and funds cases in court.
Loved and hated in equal measure, Okiya Omtatah has been strolling in the halls of the High Court for 10 years.
The mechanical engineer’s activism started in the streets and he is most remembered for chaining himself to the gates of Vigilance House (police headquarters) in January 2008, to protest against the killing of two unarmed youths in Kisumu. The incident had been captured on video.
Two years after the chain protest, Omtatah would shift his battles to the courtroom where he has secured many a memorable win while prosecuting the cases personally.
“I shifted my activism deliberately from the street to the courtrooms because in court when you get an order, it is as strong as law and is binding. It has got more returns than making headlines in the newspapers that you’re protesting,” Omtatah told the Star in an interview.
Aside from successfully suing for the reinstatement of the 999 toll free emergency hotline, Omtatah was successful in compelling the IEBC to extend the voter registration period in the run-up to the 2017 General Election. On April 19, Omtatah bagged arguably one of his biggest wins after the High Court agreed with him that plans by the government to instal a system that would access private phone data was illegal.
Omtatah sued the Communications Authority of Kenya last year after the government directed the telecommunication companies to allow CA to install the device management system (DMS) to spy on private phone conversations.
The system was to be used through Safaricom, Airtel and Telkom Kenya. Omtatah challenged the system’s installation, arguing that no public participation was done before its adoption and implementation.
Human rights experts had earlier raised concerns over possible use of the system by government for political purposes.
In January, Omtatah secured an order revoking the PSV night travel ban imposed in December 2017 after a streak of fatal accidents.
He argued that the knee-jerk reaction to rising accidents and failure of the NTSA to curb them was unfair to several businesses.
It was Omtatah who in February obtained a court order to restore television stations that had been disabled by the government to block coverage of NASA leader Raila Odinga’s swearing in as the ‘People’s President’ on January 30.
His exploits have earned him as many fans as critics. Omtatah says he is motivated by the good Samaritan parable in the Bible, and that his victories in court have come despite attempts to bribe and even kill him.
“On November 8, 2012, I was nearly killed outside I&M Bank because I refused a bribe of Sh9 million to drop a case,” he reminisces.
The activist has filed over 150 cases over the past 10 years. He credits the 2010 Constitution for allowing even an ordinary citizen to appear before court to contest policies and decisions that may be deemed to be unfair to the general public.
“Even when you lose a case, you develop jurisprudence (theory of law) because the courts get an opportunity to clarify the law,” He adds. Last month, Omtatah filed yet another suit that could define the NTSA’s limits. He wants NTSA to stop implementing a new course for drivers which includes unreasonable requirements, such as the declaration that every driving school must own at least 1.7 acres on which various testing equipment should be set up.
Omtatah holds that the NTSA has somewhat taken up a role of law making by introducing the new course, which he insists is contrary to the Constitution.
Another suit he filed in March against Uhuru Kenyatta’s chief of staff Joseph Kinyua seeks to quash a directive that allowed CEOs of parastatals to stay in office beyond the age of 60 years, which is the retirement age for civil servants.
The suit is set to determine whether Kinyua has the legal mandate to determine the retirement age for state corporation bosses.
By BRIAN WASUNA, The Star Newspaper, Apr. 21, 2018, 12:00 am