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Unconstitutional laws, supremacy of parliament and the role of judiciary

A citizen is led to believe that once an Act of Parliament has passed through the National Assembly, assented to by the President, date of commencement determined and duly published in the Kenya Gazette, the law is cast in stone. Really? An analysis of the legal position points to a contrasting scenario. Since the promulgation… Continue Reading →,

A citizen is led to believe that once an Act of Parliament has passed through the National Assembly, assented to by the President, date of commencement determined and duly published in the Kenya Gazette, the law is cast in stone.

Really? An analysis of the legal position points to a contrasting scenario.

Since the promulgation of the Constitution on the 27th day of August, 2010, the Supreme Court, the Court of Appeal and the High Court have all taken drastic steps of declaring over 60 pieces of Kenyan legislation as unconstitutional.

Many legal questions arise. Who is responsible in perpetuating the passing of unconstitutional laws? Is parliament supreme? And who is the legal watch-dog as to the constitutionality of duly enacted laws?

The concept of Supremacy of Parliament is an acknowledged principle in common law jurisdictions and was historically articulated as a fundamental principle of democratic government. It was stated that there should be an elected assembly representing the people and that this assembly should have authority to make laws that apply to the entire population. It means   that   the   state   parliament   is supreme to all other government institutions, executive or judicial bodies. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.

However, there is no universal agreement that such an assembly should have an absolute and unlimited power to make laws of whatever kind and subject matter.

Interestingly, the Constitution of Kenya, 2010 does not declare Kenyan Parliament to be supreme. Under Article 2(4) of the Constitution of Kenya, 2010 under the subheading ‘Supremacy of the Constitution’, the Article dilutes the supremacy of parliament thus:-

“Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”

In the Division of Revenue Case, Speaker of the Senate v Attorney General [2013] eKLR, the Supreme Court held that;

“…Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of Parliamentary supremacy does not commend itself to nascent democracies such as ours”.

Additionally, in the case of Trusted Society of Human Rights Alliance & 2 others vs the A.G. & 2 others {2012} eKLR, it was held that:-

“….there is nothing like supremacy of parliament outside the constitution. There is only supremacy of the constitution. Given that the constitution is supreme, every organ of state performing a constitutional function must perform it in conformity with the constitution. Where the state fails to do so, the court as the ultimate guardian of the constitution will point out the transgression.”

In the case of Mwangi Wa Iria & 2 others v Speaker Murang’a County Assembly & 3 others [2015] eKLR, Hon. Justice J.L.ONGUTO stated as follows;

“That our Constitution is supreme. That the statement as to the supremacy of the Constitution is not a slogan. The Constitution became supreme when it was adopted. Put more simply, each Kenyan was given individual rights and freedoms which no government or legislature could take away. The supremacy of the Constitution cannot be gainsaid anymore.  Not Parliament, not the Executive, not the judiciary, not a Member of Parliament, not a Cabinet Secretary, not a judge, not a senator, not a Governor and not even the President can claim supremacy over the Constitution.”

Without saying so expressly, the judiciary is left to declaring laws as constitutional or otherwise. This is normally done in court cases where parties come to contend that any piece of law is unconstitutional.

The case of Martin Nyaga Wambora & 32 Others v County Assembly of Embu HCCP No 7 & 8 of 2014 at Embu (consolidated) [2015] eKLR expressly outlines this as follows:

“[108] The institution constitutionally mandated to hear and determine any question respecting the interpretation of the Constitution including the question whether anything said to be done under the authority of the Constitution or if any law is inconsistent with, or in contravention of, the Constitution is the High Court under Article 165 of the Constitution. It therefore follows that no State Organ can hold itself to be immune to proceedings challenging the constitutionality of its actions and that includes Parliament and its speakers. In other words immunity only applies to situations where the particular entity is acting constitutionally. The position was restated by the Supreme Court of India in State of Rajasthan vs. Union of India [(1977) 3 SCC 592] where it was observed that:

“This Court has never abandoned its constitutional function as the final Judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a particular constitutional provision.”

Constitutionality of laws in the context of the 2010 Constitution do and must fall in two categories;

  1. Laws passed before 27th August, 2010 i.e. pre-2010 Constitution, both the inherited colonial laws and post-independence laws.
  2. Post 2010 enactments.

All the laws and legislations under the colonial era and post-independence period prior to the 2010 Constitution must of necessity be placed, when situations arise, for microscopic examination to ensure, establish and determine that that the laws meet the threshold of the new Constitution.

And this has and is being done regularly by the Judiciary. Sections in the Penal Code and the Criminal Procedure Code, for example, have been held to be unconstitutional.

What is of great concern is that the post-2010 legislation which the National Assembly has enacted (at a phenomenal rate! – up to the end of 2019 – 347 Acts have been passed!)

Those in charge of drafting the bills, the Parliamentarians and indeed the citizenry who need also by law to have public participation are casually, repeatedly and without regard to the Constitution allowing unconstitutional laws to be enacted. Who is to be blamed – the Attorney General, the Law Reform Commission, the Parliament or even the citizens?

Under the new Constitution, the Judiciary finds itself as the defender and shield of the constitutionality of all Acts passed by the National Assembly. Judiciary is effectively a watch-dog of the Parliament!

The important and exclusive role of the Judiciary in remedying laws (or is it amending?) has become a sensitive one – a recipe for conflict between the Legislature, the Executive and the Judiciary

It is useful to look at the spectrum of the sections in various old Acts and new Acts declared unconstitutional by various courts.

An examination of some laws declared unconstitutional makes interesting reading.

Pre-2010 laws declared unconstitutional

  1. Anticorruption and Economic Crimes Act; Section 62(6)
  2. Auctioneers Act (No. 5) of 1996; Section 3(3) and 11(2)
  3. Banking Act; Section 3(3) and 11(2)
  4. Births & Death Registration Act; Section 12
  5. Children Act, 2001,Section 2(b) 27(2), 94(1) (i), 102(1) and 158(4) (b) & (c) & Law of Succession Act; Section 3(2) & (3) Births & Death Registration Act; Section 12
  6. Criminal Procedure Code; Section 43-61A, 166,167
  7. Employment Act,2007; Section 45(3)
  8. Government Proceedings Act, Section 13A
  9. Kenya Ports Authority; Section 65
  10. Merchant Shipping Act
  11. National Assembly Remuneration Act Cap 5
  12. National Cohesion and Integrations Act, Section 17(1) (a) and (b) and the First Schedule
  13. Non- Government Organizations Coordination Act, 1990; Section 19
  14. Public Procurement and Disposal Act, 2005, Section 100(4)
  15. Penal Code; Section 96(a), 194
  16. Prisons Act; Section 46 (1) (ii)
  17. Work Injuries Benefits Act, 2007; Sections 7, 10(4), 10, 16, 23,26,53(2)(d), 2(e),58 and entire Part IV and V.

Post 2010 laws declared unconstitutional

  1. Statute Law (Miscellaneous Amendments) Act No. 12 of 2012 provisions amending the Advocates Act and the Law Societies Act.
  2. The Coffee (General) Regulations, 2016.
  3. Civil Procedure Rules; Order 22 rule 7(1).
  4. Clinical Officers  (Training, Registration & Licencing ) Bill 2016; Section 34
  5. Contempt of Court Act, No. 46 of 2016
  6. County Government (Amendment) Act.
  7. Community Land Act, 2016; Section 2
  8. Regulations in the Ministry of Education to actualize the rights of the students infringed under the Education Act (repealed) contrary to Article 32 of the Constitution of Kenya, 2010.
  9. IEBC Act; Sections 2, 7A (4), 7A (5) and 7A (6), 7B and paragraphs 5 and 7 of the Second Schedule and Sections 39(1) (C) (a), 39 (1D), 39(1E), 39(1F), 39(1G) and 83 of the Elections Act, 2011 through the Election Laws (Amendment) Act No. 34 of 2017.
  10. Elections Act, 2011;  Section 29, 34(9),  39(2) and (3) and Regulations  83(2) and 87(2) (c) of the Election (General) Regulations.; Section 43(5), 44, 45(2) (3) and 6, 46(1)(b) (ii) and (c) and 48 and The County Governments Act, Sections [ 27(2), (3) and (6) and 28(1) (b)(ii) and (c)]
  11. Finance Act, 2018; Section 63; amendment introducing Section 31A of the Banking Act.
  12. Amendment to the  Judicial Service Act through Statute Law (Miscellaneous  Amendments) Act, 2015
  13. Judicial Service Act, Paragraph 23 of the 3rd Schedule.
  14. Amendments to Sections 2, 5B(5), 27D, 40(1), 46(1)(b), 46(3), 83C(2), 83V, 84W(4), 84W(5) and 85A(3) of the Kenya Information and Communication Act by the Statute Law (Miscellaneous Amendments) Act, 2015
  15. Kenya Information and Communication Act; Section 84D, 29
  16. Kenya National Council Rules, 2015 (Legal Notice No. 130 of 2015; Rule 6(b) and Circular No. KNEC/GEN/R&QAS/A&R/EQN/16/0004-Clause 1.8
  17. Machakos County Finance Act, 2018
  18. Marriage Act, 2014; Section 66(1)
  19. Mombasa Ports Authority Bill and Mombasa Ports and Harbours Bill 2014 were inconsistent with the provisions of Article 201 and 209 (5) of the Constitution of Kenya, 2010 and were and would consequently be null and void in terms of Article 2(4)
  20. Merchant Shipping (Maritime Service Providers) Regulations, 2011; Regulation 5,7,11,13,15,17,18 and 19
  21. National Land Commission Act; Section 8(3)(c) , 14(4)
  22. The National Police  Service Commission Act, Section 5(5) (a), 88(4)
  23. Political Parties Act; Section 14(3)
  24. Parliamentary Powers and Privileges Act, Section 3, 7, and 11
  25. Public Audit Act, 2015; Section 4(2), 8, 12, 17(1),18, 27, 40, 42 and 70
  26. Retirement Benefits (Deputy President and Designated State Officers) Act, 2015; Section 4
  27. Supreme Court Act, 2011; Section 16(2) (b)
  28. Salaries and Remuneration Commission Act, Section 7(2) & 7 (10-15)
  29. Victims Protection Act; Section 9(1)(e)

So what this ultimately means is that next time a citizen is confronted with any legal quandary, it would not be amiss for the citizen to check if the law – antiquated and old, colonial, post- independence or post new Constitution, can and does meet the Constitutional threshold.



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