Locus standi
refers to the legal right to bring an issue before court. Before the enactment
of the Constitution of Kenya, 2010, there were strict requirements regarding
standing. A person needed to show direct interest in the subject matter. In Wangari Maathai v Kenya Times Media Trust
Ltd[1],
the petitioner was seeking temporary injunction restraining the defendant from
constructing a proposed complex in a recreational park in central Nairobi. The
defendant objected the petition claiming that the petitioner had no legal
standing. The court upheld the objection. With the enactment of the 2010 Constitution,
the court’s approach towards legal standing changed. This change, however, has
not been without criticism as there are some people who are arguing that this
opened a floodgate of litigation which defeats the very essence of the ideal of
access to justice. This piece of work explores the constitutional provision on
legal standing and endeavours to find out whether or not the so-called
floodgate has been opened.
The constitution clearly provides the requirement of
standing that is very liberal. Article 22(1) of the constitution provides that every person has the
right to institute court proceedings claiming that a right or fundamental
freedom in the Bill of Rights has been denied, violated or infringed, or is
threatened. In addition to a person acting in their own interest, court
proceedings under clause (1) may be instituted by (a) a person acting on
behalf of another person who cannot act in their own name; (b) a person
acting as a member of, or in the interest of, a group or class of persons; (c)
a person acting in the public interest; or (d) an association acting in
the interest of one or more of its members.[2]
The above article is reinforced by
article 258 of the Constitution which also highlights the requirement of
standing.[3] In the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others[4] the Court of Appeal stated that:
“Moreover, we take note that our commitment to the values
of substantive justice, public participation, inclusiveness, transparency and
accountability under Article 10 of the Constitution by necessity and logic
broadens access to the courts. In this broader context, this Court cannot
fashion nor sanction an invitation to a judicial standard for locus standi that
places hurdles on access to the courts except only when such litigation is
hypothetical, abstract or is an abuse of the judicial process. In the case at
hand, the petition was filed before the High Court by an NGO whose mandate
includes the pursuit of constitutionalism and we therefore reject the argument
of lack of standing by counsel for the appellant. We hold that in the absence
of a showing of bad faith as claimed by the appellant, without more, the 1st
respondent had the locus standi to file the petition. Apart from this, we agree
with the superior court below that the standard guide for locus standi must
remain the command in Article 258 of the Constitution.”
The floodgates argument in public interest litigations can be
best summarized by Justice Khalid of the Indian Supreme Court’s argument that
public interest cases are “filed without any rhyme or reason”:
“It is, therefore, necessary to lay down clear
guidelines and to outline the correct parameters for entertainment of such
petitions. If courts do not restrict the free flow of such cases in the name of
Public Interest Litigations, the traditional litigation will suffer and the
courts of law, instead of dispensing justice, will have to take upon themselves
administrative and executive functions.”[5]
Sentiments similar to those of Justice Khalid have been
raised in Kenya. For example, Mr. Ababu Namwamba has raised
concern that the court must use its powers dismiss all frivolous applications
because the doors have been opened for all manner of litigation.[6]
The Executive Director of Kituo Cha
Sheria Priscilla Nyokabi has shared the same concerns. She has argued that removal of the legal standing restrictions is a good
move but the court should draw a line between which constitutes public interest
and that that does not. Further, she has attacked the current obsession
by judges to “give injunction orders like biscuits.”[7]
Interested
parties and the civil society organizations have greatly benefited from the
broad locus standi. But it is emerging that interested parties are misusing
this broad locust standi to further their ulterior motives and political
ambitions to the detriment of access to justice. At the long run the civil
society will be pushing for their own interests rather than addressing the
genuine needs of the general public. For example, in the case of Consumer Federation of Kenya (COFEK) v
Minister for Information and Communication and 2 others[8] the
analogues switch off did not occur because COFEK, an interested party in the
case, had filed objections thus stopping the migration. The case was later
withdrawn by consent of the parties, then
the Secretary General of COFEK, was appointed to Digital Television Committee but
he later resigned from the DTC on after the public complained of that state of
affairs.
The
safeguards against using the liberal requirement of legal standing in opening
the floodgates in public interested litigation are provided in legislation and
case law. The key player in safeguarding against opening of the floodgates is
the court. This is because it is vested with ultimate power of interpreting
laws on legal standing. The various mechanisms of checking against the liberal
legal standing include: the requirement of showing cause of action, awarding of
the costs and the oxygen rule.
The Constitution of Kenya 2010 requires expeditious
disposal of disputes[9]
making it necessary the case that a person seeking to be heard by the court
must show a real connection with the dispute before court. This imposes on the
person moving the court the obligation of showing actual or potential harm. In
the case of interested parties and the civil society, for them to have
standing, they must have a real stake in the proceedings and they are likely to
influence the court in making a determination in his favour.
In the case of Judicial
Service Commission v Speaker of the National Assembly & another[10], the
applicant was seeking to be joined in the suit as an interested party. The
grounds upon which the said application was made were that the applicant
pursuant to Article 251(2) of the Constitution had petitioned for the removal
of Ahmednassir Abdullahi, a sitting member of the Judicial Service Commission. Based
on the foregoing the applicant contended that he was a party interested in the
proceedings through Articles 258, 3 and 48 of the Constitution of Kenya thus
had locus standi to be joined as an interested party. The
High Court said that it was apparent that the applicant’s ground for
seeking to be joined to those proceedings did not disclose “an identifiable stake or legal interest in
the proceedings before the court” as his petition was not the subject of
the proceedings.
Costs
are awarded to or against parties in the proceedings. The court has the power
of awarding costs against a party invoking the liberal requirement of legal
standing to bring cases that are not bona fide. This discourages potential
litigants from bringing to court cases that are not supported by evidence and
are against public interest.
The
oxygen rule provides for the power of the court to dismiss frivolous and
vexatious cases. The liberalisation of the requirement of legal standing did
not take away the discretion of the court in dismissing cases that amount to an
abuse of the court process. This rule is provided in section 1B of the Civil
Procedure Act and Sections 3A and 3B of the Appellate Jurisdiction. These
statutes lay down the overriding objective of civil litigation in Kenya, whose
purpose is to realise just determination of litigations.
Notwithstanding the fact that the Constitution of
Kenya, 2010 made the requirement of legal standing liberal, it did not take
away the court’s mandate in safeguarding against subjecting the justice system
to unwarranted litigations. Whether or not the liberal requirement of legal
standing will open floodgates of ligation solely depends on whether or not the
court will uphold the check of dishonest litigation that is provided by law. In
summary, therefore, the court has the key to the floodgates.
REFERENCES
1. J.B.
Ojwang and J.A. Otieno-Odek (1988). The Judiciary in
Sensitive Areas of Public Law: Emerging Approaches to Human Rights Litigation
in Kenya. Netherlands International Law Review, 35, pp 29-52.
2. Kamau
Ngugi (2011). Report of the Colloquium on “Public Interest Litigation
– Lessons in Litigating Rights.
3. Kithure
Kindiki (2007). The Emerging Jurisprudence on Kenya’s Constitutional Review Law,
Kenya law review.
4.
Consumer Federation of Kenya (COFEK) v Minister for Information and
Communication and 2 others, Nairobi HC Constitutional Petition 563 of 2013.
5. Kenya
Law Reports (2010). The Constitution of Kenya.
6.
Judicial Service Commission v
Speaker of the National Assembly & another [2013] eKLR
7.
Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others
Civil Appeal 290 of 2012.
8. Odhiambo,
Michael Ochieng, Legal and Institutional Constraints Legal and Institutional
Constraints to Public Interest Litigation as a Mechanism For The Enforcement of
the Environmental Rights and Duties in Kenya.
9. Wangari
Maathai v Kenya Times Media Trust Ltd, HCCC 5403 of 1989.
[1] HCCC NO. 5403 of 1989.
[2]
Const. Art 22(2), (2010).
[3]
Article 258 provides that every person has the right to
institute court proceedings, claiming that this Constitution has been contravened,
or is threatened with contravention.
[4] Civil Appeal 290 of 2012.
[5]
Kelly D Alley, “Legal Activism and River Pollution in India,” 21 Georgetown
International Environmental Law Review 793 (2009) at 802 (quoting from
Jagga Kapur, Preface in I Supreme Court on Public Interest Litigation
at XI). Cited in Zoila Hinson and
Dianna Hubbard, ‘Locus Standi: Standing to
Bring a Legal Action’ (2012). Legal Assistance Centre.
[6]
http://www.capitalfm.co.ke/news/2012/02/courts-must-reject
frovolous cases-experts. (accessed 8 April 2015).
[7]
http://www.capitalfm.co.ke/news/2012/02/courts-must-reject
frovolous cases-experts. (accessed 8 April 2015).
[8] Nairobi HC Constitutional Petition No. 563 of
2013.
[9]Article 159 (2)
of the constitution provides that in exercising
judicial authority, the courts and tribunals shall be guided by the principle
that justice shall not be delayed.
[10] [2013] eKLR, Petition 518 of
2013 | Kenya Law Reports 2014.
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