Advertisement

Petition in public interest? The cost will floor you!

Saturday September 27 2014

We have, no doubt, almost all but forgotten the High Court Petition Number 552 of 2012. For events leading up to last year’s General Election have long been overtaken by all that’s come since.

To refresh our memories, High Court Petition Number 552 of 2012 was one of the first tests of the meaning of Chapter 6 of our Constitution. Specifically, what Chapter 6 — on leadership and integrity — implied, with respect to the right to stand for public office as well as the responsibilities of the Independent Electoral and Boundaries Commission (IEBC).

In the end, the High Court consolidated four separate petitions and ruled on both jurisdiction and substance. As concerns jurisdiction, it found that it had jurisdiction to interpret Chapter 6 of the Constitution. However, it argued the remedies of the IEBC and other relevant public bodies to determine matters of integrity in relation to eligibility to run for public office had not yet been exhausted, and fell solely under the jurisdiction of the Supreme Court.

So much for that.

As for substance, the High Court reminded the petitioners that Kenyatta and Ruto, despite having been internationally charged with serious of crimes, are to be assumed innocent until proven guilty in a court of law. And that was that. Except that it wasn’t.

For the High Court also awarded costs to the respondents. So far, the Attorney-General hasn’t forwarded costs. However, the IEBC has billed — to the tune of no less than Ksh178 million ($1.99 million) — to be paid by the petitioners, who had only acted in the public interest by seeking the judiciary’s opinion.

Advertisement

There are, no doubt, different opinions on the IEBC’s billing of the petitioners today. Some might be silently, maliciously gleeful all those “evil” civil society types have finally gotten what was coming to them. Some might — tired of the ways in which Kenyans have become so litigious — feel both the High Court’s award of costs and the IEBC’s attempt to claim the same, may usefully constrain our increasingly litigious nature moving forward.

But others might be alarmed.

What is the signal the High Court is sending with respect to the right of any individual — let alone civil society organisation — to bring forward public interest litigation under the new Constitution?

If no civil society organisation could possibly afford to pay those fees, how, one imagines, could a single individual? Who would dare move forward now, no matter the import and public interest of any issue at hand?

Second, what is the signal the IEBC is sending with respect to its use of public resources? If these are the fees it is paying for a single constitutional petition, one shudders to imagine just how much it has forked out of our money for the numerous elections petitions it has been party to since March 2013.

Does the IEBC not have in-house advocates? Or a legal firm on retainer at more reasonable costs? Surely there must exist — somewhere — some guidelines on what public bodies can rightfully spend on external legal fees?

We have the right to make demands of our public offices. There are many ways to undermine that right. The awarding of costs is one way. The slapping down of exorbitant, ridiculous, way-over-the-top, costs is another. The matter is before the High Court again. We must all watch out for what it decides.

L. Muthoni Wanyeki is the Amnesty International’s Regional Director for East Africa, covering East Africa, the Horn and the Great Lakes.

Advertisement