Keep matters of public interest….PUBLIC!!!

 

The other day one of our most hard working and progressive judge (God Forbid if he’s transferred to Turkana as a District Magistrate 1 [do they even exist]…!) made – in my humble view a very good ruling on the Parking Fees case (read Saga).

The reason why I believe it to be a very good one is informed by the following;

Pardon me for taking you back to definitions but for this discussion I think it will be of necessity. An issue can be defined as being of public interest (save for the many ambiguities) when it affects the common wellbeing/ general welfare of a community, society etc. What affects could be either of benefit or harm. That which is of public interest may be so for individuals within that community, the whole community, a few communities within the society or the whole society and so on.  

Public Interest Litigation (PIL) would therefore follow to mean litigation over that which affects a broad public concern or; impact on disadvantaged or marginalized groups; and it must be a legal matter which requires addressing for the common good. Such litigation can be instituted by a public spirited individual (s), an association (s) or a group bringing an action on behalf of the general public for the purpose of protecting, that which is deemed to be in the general interest of the community or society.

The space for public interest litigation or as it were – litigating on issues that are of public interest has greatly improved in Kenya. The Constitution of Kenya, 2010 in three or more Articles gives express provisions allowing for public interest litigation. Article 22 (1) and (2) removes the issue of locus standi (standing) in the enforcement of the Bill of Rights while Article 22 (3) (d) does away with that which one learned judge called – “unreasonable technical strictures and procedural snares”, and finally Article 258 which authorizes the protection of the constitution against contravention or threats of contravention.

Clearly the constitution has paved the way for the protection of issues of public interest. It has made it so easy to litigate on issues of public interest that public spirited individuals, human rights lawyers and NGOs are literally falling over each other trying to enforce this and that right through PIL.

HOWEVER, an aspect (not an issue) of public interest litigation that is in dire need of examination is the conclusion of such cases, who has a right to benefit from such action, who drives the process once it is in court and is it appropriate for a public spirited individual to accept an out of court settlement once offered by the adversary/ respondent/defendant which in many cases is the government (but has now also been extended to private individuals and legal persons)? Indeed, the individual may have all the capacity to institute the proceedings in court but does he/she have the capacity to consent to an out of court settlement or to withdraw the matter once in court and has already attracted some considerable amount of interest?

Mr. Henry Muigirwa – a public spirited individual – went to court claiming that the new parking fees rates imposed by the City Council of Nairobi prejudiced him. Issues raised by Counsel for the Petitioner included lack of proper notice, failure to justify the increase as the Council was still providing poor services, and insensitivity to the financial challenges that Kenyans have to deal with every day.

Apparently, even after the learned Presiding Judge stated that the matter was of high public interest, Mr. Muigirwa and the Council agreed the parking fees be reduced from Sh300 to Sh250 on January 24, 2011 and filed a consent in that regard.

I strongly believe that the moment the judge declared the matter as being of public interest, it was a shame for him to allow consent as entered into by the Businessman on behalf of a public, which was already complaining about any increase whatsoever, and for such to be admitted in court.

Sadly, courts have been known to allow very ‘flimsy’ consents just to get rid of some cases and in the name of trying to clear backlog, only for the parties to face numerous challenges trying to enforce the consents. Others have been withdrawn even after attracting the attention of and likely to affect the wider public, without fully addressing the issue. An example in this regard would be The Tiomin Mining Case, which would have made very good jurisprudence, but which was withdrawn before it could go to full trial. 

Judicial activism was clearly manifest in Justice Musinga’s ruling thereafter in an almost similar case by Kaka Travelers Cooperative Savings and Credit Limited. In reversing the decision of the Council and Mr. Muigirwa, he said that the move was aimed at undermining two pending cases that had challenged the move by the local authority to increase parking fees irregularly.

In essence however, the ruling served to uphold the argument that it would be utterly absurd for a public spirited individual, acting in public interest, to decide on an out of court settlement for personal reprieve, when it was quite clear that the decision that would be made following hearing of that case, was meant to be a ‘Judgment in Rem’.

This decision by Mr. Justice Musinga was certainly very sound in this regard.

Indeed, even as the space for litigation opens up and more and more individuals and groups seek protection of fundamental rights and freedoms, it will be very important for the public and the courts to be vigil and ensure that such cases are not short sighted and lead to bad jurisprudence that will take ages to right/correct.

Let matters of public interest remain…….PUBLIC!