In criminal revision 25 of 2019, Moses Kasaine Lenolkulal v Director of public prosecutions, Lady Justice Mumbi Ngugi, held that section 62 (6) of the Anti-corruption and Economic Crimes act (ACECA) is unconstitutional.
Section 62 of ACECA provides that, a state officer, charged with corruption shall be suspended at half pay, pending the determination of the case; while the impugned section 62 (6) provides that this requirement does not apply, with respect to an office that the constitution limits or provides grounds for removal from office.
It provided blanket protection from suspension from office for constitutional office holders, charged with corruption and other crimes.
These constitutional officers include Governors, Members of parliament and members of the county assembly.
In the discourse, between the Hon judge and Lawyer Namodi, who was acting for the governor, the term ‘political hygiene’ emerged and both were in agreement that, it was not politically hygienic for a state officer to remain in office, while he is fighting a case in court for abusing the same office.
It was lawyer Namodi’s contention that, even though it may not be politically hygienic, the impugned section 62 (6) protected constitutional office holders from being suspended from office, pending the determination of their case.
Lady justice Mumbi, bypassed the obstacle set by the impugned section. She declared it to be unconstitutional in her opinion. She gave several reasons for her holding, including the fact that the impugned section discriminates between public/state office holders.
It was also her holding that, the impugned section does not augur well with the public good; that the people of Kenya, as the source of all laws, did not envisage such a law when they promulgated the new constitution, especially its requirement on integrity in chapter six.
This ruling has received much attention, both praise and ridicule in equal measure. The Ethics and Anti-Corruption Commission (EACC), Directorate of Criminal Investigations (DCI) DCI and the Office of Director of Public Prosecution (ODPP), were quick to welcome the ruling, as it was in accordance with their oft repeated mantra, that any public officer charged with a crime should not remain in office, pending the determination of their case.
The ruling received much criticism from other quarters, especially from many lawyers. When Governor Waititu was subsequently ordered that he stays away from his office, in the same way as this ruling, lawyer Nelson Havi, derogatorily referred to it as a: ‘‘continuation of the political hygiene theory of the Hon lady Justice Mumbi’’, in twitter.
The anti-corruption and economic crimes act was made by the legislature, whose function is to make laws as the elected representatives of the people. The function of the judiciary, on the other hand, is to interpret the law.
Therefore, a basic picture emerges from this ruling. It is a picture of an unelected judge unmaking a law made by elected representatives of the people. A picture of the judiciary usurping the legislative powers of parliament. A picture of a judge exercising, ‘judicial activism’, rather than adjudicating on the law, as was alleged by some critics. Or is it?
Judicial Unmaking Of Laws
The idea of separation of powers, between three separate arms of government, the executive, legislature and judiciary; was popularized by Charles Luis de Secondat Baron Montesquieu.
The rationale behind it was, for there be checks and balances and that one arm, especially the executive, should not have a lot of arbitrary powers leading to loss of liberty of citizens. While generally speaking, the functions of each arm of government are different, it would be impossible for there to be rigidly separate functions for each arm.
The three arms are mostly interdependent. Functions would sometimes overlap and conflicts would arise. This interdependence and conflict, is recently epitomized by the way the executive proposed to slash the budget of the judiciary, bringing most of its operations to a grinding halt.
The courts have, through the practice of judicial review, questioned and set aside the decisions of both the executive and the legislature. Article 258 of the constitution empowers the courts to interpret all provisions of the constitution and to provide a remedy in case of breach.
Even though it appears that the courts are questioning and overruling parliament, they are mandated by the constitution, in that effect. Parliament’s role is to make laws, but this role is not a blanket mandate to make any laws. The laws they make, should conform to the constitution.
The judiciary, as the custodians of the law, has the powers to shoot down a law made by parliament, if they deem it incompatible with the constitution. A constitution is a transcendental document. A sort of higher law, that provides general principles that should guide specific problems, that may not be directly addressed by the constitution itself or even by other subsidiary laws.
Judicial creativity in interpreting the constitution gives it life. A judicially inactive judge in our context, has therefore given up on his role as a judge. It goes without saying then, that the term judicial activism, is therefore a misnomer in our case. A judge has to be active and creative, in applying the law, as long as a balance is maintained, and it doesn’t turn to judicial adventurism.
The constitutional basis of the Ruling
There are various ways of interpreting constitutional provisions, when there are no direct provisions, but the interesting part with our Kenyan constitution 2010, is that it has provided for how it should be interpreted. Article 10 provides that public officers, including judges, should consider the values of good governance, Integrity, transparency and accountability when interpreting/applying the constitution.
This brings us to the question of what is integrity, transparency and accountability. Does merely being charged in court blot the integrity of a public officer, or must it be that the case concludes and he is convicted for his lack of integrity to emerge?
Article 259 requires the courts to interpret the constitution, in a manner that promotes its purpose, values and principles, the rule of law, permits the development of the law and contributes to good governance. The anti-corruption and economic crimes act, is silent on what integrity entails, but Black’s law dictionary defines it, as soundness of moral principle and character of a person in a discharge of trust.
Holding a public office is a position of trust. It is also a privilege, not a right. The trust may not be tainted by mere allegations, but it will definitely be tainted by something as serious as a corruption case in a court of law. It may be a high bar, but that is the bar, the people have set for themselves, when they promulgated the 2010 constitution.
A point raised by the Hon Justice, is that the impugned section discriminates between public office holders. That it sets a higher bar, with punitive measures for all public office holders, except constitutional office holders. Section 62 (6), was sneaked in by parliamentarians to shield themselves from the adverse effect of article of section 62.
This is not like immunity of the president which is anchored in article 143 of the constitution. It can be dispensed with. An argument has been advanced, that suspending a public officer, while he is yet to be convicted, compromises the constitutional right to be presumed innocent till proven guilty.
However, proponents of that argument, forget that holding a public office is not a constitutional right. It is only those that meet the requirements of public office that can hold it. A public officer does not lose his right to be presumed innocent. He only loses the privilege of holding a public office briefly, as he clears his integrity.
In any case, if the right to be presumed innocent till proven guilty, guarantees one with the right to remain in office, what about junior public officers who have been subjected to the harsh conditions of stepping aside. Do they not also have the right to remain innocent till proven guilty? It therefore goes without saying that this argument is defective.
Points Raised By Those Who Disagree With the Ruling
Those, who disagree with the ruling, usually do so on points of practicality. Like the fact that it is prone to abuse. They point out that, with our history of political witch hunt this is an easy tool to dislodge political opponents. While such concerns are valid the law unfortunately does not envisage it to be used for such nefarious purposes.
It is upon Kenyans to work on strengthening the institutional independence of the DCI and ODPP.
EACC though not perfect are clearly ahead of these two institutions in at least projecting a semblance of objectivity and independence.
The other factors are the long time it takes to conclude a case and the fact that the DCI and ODPP are notorious for taking suspects to court with incomplete investigations.
While these concerns are also valid, they do not honestly concern the law. It concerns society. We should endeavor to put in measures like the speedy conclusion of corruption cases through legislation. A reasonable period of let us say 6 months should be set as the time it should take, this would force the DCI and ODPP to up their game. They would not take suspects to court with incomplete investigations. Failure to adhere to that would automatically lead to a suspect being acquitted and returned to his previous job with all due backdated emoluments.
Another practical conundrum raised is the vacuum created by the suspension, in the case of members of parliament who have no deputies. There is also the constituents right and need of representation which is lost. This can also be addressed, by the same panacea of the speedy conclusion of the cases anchored in legislation to ensure it.
A constituency can do six months with a suspended MP. The role of an MP is largely ceremonial and political.
In other jurisdictions, a politician would resign instead of holding the electorates hostage. This is what good governance entails as envisaged by the constitution.
If it takes a law for our politicians to adhere to aspects of good governance, then so be it.
It is my holding therefore, that there was nothing ‘’activist’’ in the ruling and the ruling has basis in both law and governance, and the fact that there are some difficult practical aspects of implementing it does not in any way invalidate its legality.
The ruling has set the country talking on what level of integrity we may hold to our leaders.
The case has been challenged at the court of appeal which may or may not shoot down. Even if it is shot down, I believe things will never be the same again as it has galvanized the people and influenced them to hold their leaders to a higher level of integrity.
Remember, most of Lord Denning’s rulings were overruled by the house of Lords, but in many cases, prompted a later change in the law by parliament.
The writer is Political Science commentator and final year Law student at the University of Nairobi.