Constitutional Supremacy and the Perils of Legislative Inertia: A Review of the Enforcement of Defunct Penal Provisions
Katiba Institute vs Kenya National Commission on Human Rights and National Assembly and 5 Others (Petition No. E036 Of 2024 (Consolidated With Petitions E080 and E497 Of 2024)).
The dispute before the High Court arose from a longstanding legal impasse regarding the validity of the robbery and attempted robbery provisions within the Kenyan Penal Code. This constitutional conflict traces its genesis to the landmark judgment in Joseph Kaberia Kahinga & 11 Others v Attorney General, wherein a three-judge bench determined that Sections 295, 296(1), 296(2), 297(1), and 297(2) of the Penal Code were inconsistent with the Constitution due to their inherent vagueness. These provisions failed to set out with sufficient precision the degree of aggravation required for the offences, thereby violating the right to a fair trial. Recognising the gravity of these crimes, the court in Kahinga suspended the declaration of invalidity for a period of eighteen months to permit the legislature and relevant state organs to initiate remedial amendments. However, this suspension lapsed on 15 March 2018 without any such amendments being enacted.
Despite the expiration of the suspension, the State, through the Director of Public Prosecutions and the National Police Service, continued to arrest, charge, and prosecute individuals under these defunct sections, while the Judiciary continued to convict and sentence them. Data revealed that since the lapse of the Kahinga suspension, over 10,000 individuals had been charged and 2,000 convicted under the impugned provisions. Katiba Institute, the lead Petitioner, alongside individuals facing charges in various magistrates’ courts, moved the High Court seeking declarations that the continued enforcement of these laws constituted a blatant act of impunity and a violation of the supremacy of the Constitution. The Respondents, including the Attorney General and the National Assembly, resisted the petition, arguing that a legal vacuum would incite anarchy and that legislative efforts were already underway through the Penal Code (Amendment) Bill, 2023.
Does the lapse of a suspended declaration of invalidity render subsequent enforcement of a statute a fresh and separate violation of the Constitution?
The primary doctrinal question addressed by the Court was whether the State could continue to exercise authority under laws previously declared unconstitutional once the grace period for legislative repair had expired. The Court was meticulous in its approach, emphasizing that Article 2(4) of the Constitution is not merely suggestive; it is a fundamental principle that any law inconsistent with the Constitution is void to the extent of the inconsistency. The Petitioners argued that following the lapse of the suspension on 15 March 2018, the provisions became a nullity, and any proceeding founded upon them was incurably bad.
The Court reasoned that while the Kahinga judgment had initially suspended the invalidity to avoid a sudden legal vacuum, the State’s persistent failure to act within that timeframe could not serve as a justification for perpetual enforcement of unconstitutional laws. It was noted that once a suspension has expired, it cannot be revived by the court that issued it, as that court becomes functus officio. Justice Mugambi observed that the State’s conduct amounted to an act of impunity and an abuse of power, as no person may exercise State authority except as authorised under the Constitution. Consequently, the Court found that every prosecution initiated after the 15 March 2018 deadline constituted a fresh and separate violation of the rights of the accused.
Whether the doctrine of sub judice or res judicata bars a fresh petition when the original judgment granted liberty to apply for implementation orders.
A significant jurisdictional hurdle raised by the Respondents was that the Petitioners were essentially relitigating issues from the Kahinga case. They contended that since the original three-judge bench had granted “liberty to apply” in its fifth order, the Petitioners ought to have returned to that specific case rather than initiating a new suit. This, they argued, invoked the doctrine of sub judice, intended to prevent a multiplicity of suits and conflicting decisions.
The Court declined this interpretation, making a sharp distinction between the substratum of the two cases. While the Kahinga case dealt with the initial declaration of unconstitutionality, the current petition focused on the continuing infringement and the State’s failure to respect a binding declaration. Justice Mugambi explained that in matters of public interest litigation, the High Court’s mandate to interpret the Constitution and protect the Bill of Rights is not exhausted simply because a related declaration was previously made. The Court further clarified that while a judgment in rem – such as a declaration of unconstitutionality – is binding on all, the specific act of charging an individual under a defunct law creates a new cause of action. To hold otherwise would be to permit the State to evade constitutional obligations by merely abdicating its mandate.
Does the principle of exhaustion require a petitioner to approach Parliament under Article 119 before seeking judicial redress for legislative inertia?
The National Assembly raised a robust objection based on the doctrine of exhaustion, asserting that the Petitioners should have first petitioned Parliament to amend the laws as provided under Article 119 of the Constitution. They argued that the Court should exercise restraint and allow the legislative process, which was already seized of the Penal Code (Amendment) Bill, to reach its logical conclusion.
The Court rejected the notion that the right to petition Parliament could oust the High Court’s jurisdiction to determine constitutional questions. Relying on the precedent set in Council of Governors v Senate, the Court affirmed that the High Court remains the final custodian of the Constitution. It would be an abdication of judicial responsibility to require a party whose rights are being actively violated by the enforcement of an unconstitutional law to first seek a legislative remedy. The Court underscored that the constitutional mandate to invalidate acts or omissions inconsistent with the Constitution is vested solely in the High Court under Article 165(3)(d).
Whether a structural interdict is the appropriate remedy to balance the vindication of fundamental rights against the risk of administrative anarchy.
The most complex challenge facing the Court was the determination of an appropriate relief. The Petitioners sought the immediate release of all persons convicted since March 2018 and the quashing of all pending charges. The Respondents countered that such a blanket review would be a recipe for chaos and would violate the rights of victims of grave crimes.
The Court sought a middle ground, acknowledging that while the State was guilty of continuing violations, an immediate cessation of all robbery trials would cause unprecedented turmoil. Consequently, the Court opted for a structural interdict as a transformative remedy. This mechanism requires the violator to rectify the breach under judicial supervision rather than having the court dictate a specific legislative solution.
The Court’s reasoning was grounded in the necessity of a dynamic dialogue between the branches of government. By granting a new suspension and requiring periodic reports, the Court ensured that the State could choose its own means of compliance while remaining accountable to the Judiciary. This approach aimed to facilitate an orderly legislative intervention while asserting that the rights of the accused could not be ignored indefinitely.
Holding and Final Orders
In its final determination, the High Court issued a declaration that the continued arrest, charging, and conviction of individuals under Sections 295, 296, and 297 of the Penal Code since 15 March 2018 violated the supremacy of the Constitution and the right to a fair trial under Article 50(2)(n). However, to safeguard the public interest and avoid a legal vacuum for grave offences, the Court suspended the effect of these declarations until 30 June 2027.
The Court further ordered the Attorney General and the Director of Public Prosecutions to submit reports to the Court every eighteen months, specifically on 31 July 2025 and 30 January 2027, detailing the legislative and administrative measures taken to address the ambiguities in the law. Crucially, the Court established a guillotine clause: should the State fail to amend the law by the midnight of 30 June 2027, the declaration of invalidity will take effect forthwith, and any pending charges or prosecutions based on the unconstitutional provisions will be automatically quashed, with the affected persons set free. This decision is of paramount legal significance as it reinforces the Judiciary’s role in supervising legislative compliance with constitutional declarations, ensuring that the State cannot rely on its own inertia to bypass the Bill of Rights.