The Supreme Curt of Kenya (SCORK has through Zehrabanu Janmohamed and Another v Nathaniel K. Lagat 4 Others, found that the right to seek an enforcement of a right under the Bill of Rights is limited under Section 7 of the Limitation of Actions Act (LAA) due to the running of time. This, it held was by dint of Article 24 of the Constitution of Kenya which stipulates when a fundamental right can be limited. The case involved an appeal by the government which sought clarity on whether a constitutional claim of violation of property rights under Article 40 of the Constitution brought 31 years after said violation, is subject to limitation under Article 24 and Section 7 of the LAA. This blog discusses the fault in the Court’s reasoning on two key grounds.
First, the decision turns a blind eye to how difficult it was to bring a constitutional claim prior to the 2010 Constitution due to structural and systemic injustice. Kenya has a dark historical past dating back to pre- and post-independence, replete with an account of gross violations of human rights. Most of these violations went without redress due to an authoritarian rule cloaked under the guise of parliamentary democracy. This has been extensively documented in the 2013 Truth Justice and Reconciliation Committee Report. The authoritarian rule made it difficult for parties to seek intervention from courts for protection of their rights, as judges lacked judicial independence and answered to the President who fired them at will. Justice often belonged to the highest bidder making it a privilege of a select few wealthy individuals. Most claims met their death at the altar of poverty and corruption, leading to the formation of a tribunal to investigate judges, which resulted in the famous Ringera Report.
Second, as per the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, for a limitation to be valid, it must be (i) prescribed by law, (ii) necessary in a democratic society and (iii) pursue a legitimate aim. It is quite disconcerting that a 6-judge bench of the SCORK did not even attempt to examine if the impugned limitation met these requirements. I argue that while it may meet the first requirement, the limitation is not necessary in a democratic society and does not pursue a legitimate aim.
The core of Article 22 of the 2010 Constitution deals with the right to an (effective) judicial remedy which is integral to citizenship in a democratic society and a constitutional government. The normative basis for the right to a remedy and reparation is well established under Article 2(3) of the ICCPR, which is recognized as part of Kenyan law by dint of Article 2(6) of the 2010 Constitution. This right demands that a judicial authority examine the merits of a case and issue a legally binding decision. Where a remedy is ineffective, in that it offers no prospects of success and where a remedy is insufficient, in that it is incapable of addressing one’s complaint, then according to the African Commission on Human and Peoples Right’s holding in Jawara v The Gambia, such a remedy is rendered nugatory. In Kenya according to Monata Matiko Chonchorio v John Marwa Chabaro [2021] eKLR, the successful invocation of the law of limitations ousts the jurisdiction of Courts (See para 16 – 18). Such ouster of jurisdiction renders a remedy ineffective (See Jawara v. Gambia para 38).
While it has been successfully argued elsewhere that for purposes of fair trial as provided under Article 50 of the Constitution, it is expected that one should not advertently delay commencement of a suit filed under Article 22, such that the other party is compromised in putting forth a plausible defence, it is an elementary principle of constitutional law that the burden of proof always lies with the petitioner, not the respondent. Further, for violations committed by the State, the elaborate systems within the State allow for a meticulous systematised record and preservation of information.
Also, as a budding democracy that is yet to overcome the challenges institutional independence, separation of powers and respect for the rule of law as amongst the three arms of government, it would be imprudent for a court to adopt such an interpretation that limits the justiciability and enforceability of the Bill of Rights, and which is oblivious to the systemic and structural challenges faced by the justice system, as this spells doom for the protection of human rights under the hard-gained 2010 Constitution.
