Anne Waiguru and the return of roadside declarations in Kenya

“We want to bring back the culture of due process, accountability, and transparency in public office. The era of “anything goes” is gone forever. The government will no longer be run on the whims of individuals. The era of roadside policy declarations is gone. My government’s decisions will be guided by teamwork and consultations.”

These are the words of the late President of the Republic of Kenya during his inauguration ceremony at Uhuru Park in the year of the Lord 2002.1 I will proceed to give the words uttered by the former president a historical underpinning. Before President Kibaki’s reign, was the Nyayo era. Nyayo was the slogan that was used by President Moi which meant footsteps.2 Under Moi’s reign, 1:00 pm was not just any other clock hour; it was the time when KBC would broadcast news, and the first piece would always cover what the President had said that day. It was during this hour that citizens would eagerly await to listen to the radical decisions that he would make in rallies. Senior civil servants, public officers, and other state appointees would develop cold feet during that hour as Moi would hire, sack, and make paramount policy matters during roadside rallies.3 These decrees are often referred to as roadside declarations. The late President can even be referred to be the father of roadside declarations in Kenya. This is therefore what informed President Kibaki to make a promise during his inauguration that he would have due regard to the constitution and the rule of law. Under Kibaki’s tenure, a Constitution that has been described as progressive was promulgated on 27th August 2010.4

Delineated in the Constitution are numerous provisions that seek to combat the rule of fiat via roadside decrees that had been depicted in other regimes. Examples include;

Article 10 of the Constitution binds all state organs, state officers, public officers, and all persons in the discharge of public functions. It lists the national values and principles of governance, with one such principle being the principle of public participation.5 Decrees ought not to be made without carrying out adequate public participation. It is a crucial tenet of governance.6

Article 47 of the Constitution of Kenya lists the right to fair administrative action as a fundamental right. Every individual is entitled to administrative action that is procedurally fair, reasonable, lawful, and expeditious. Article 261 of the Constitution requires legislation to be enacted to give effect to Article 47 and thereafter, the Fair Administrative Action Act was enacted in 2015 to give effect to Article 47 of the Constitution. Moreover, where adverse administrative action has been taken against a person, they deserve written reasons for the same.8

Article 50 of the Constitution encompasses the right to a fair hearing. Every individual is entitled to receive a fair hearing before independent courts or tribunals. This article aligns with one of the fundamental rules of natural justice, encapsulated by the Latin maxim “Audi alteram partem,” which translates to “hear the other side.”

Despite the promulgation of a Constitution that was seemingly against the issuance of roadside declarations, various cadres of leaders, elected and non-elected have continued to issue them. This article shall specifically focus on orders issued by the governor of Kirinyaga County, Anne Waiguru, during the burial of 17 victims of illicit liquor. To quote her:

“I have today ordered the closure of all bars in Kirinyaga to pave way for fresh vetting, those bars that will be found to have been operating without license or had previous cases of selling unauthorized products will not be allowed to open again. All bar licenses have also been withdrawn.”9

I begin by registering my heartfelt condolences to all the families who lost their loved ones due to the illicit liquor. It is a sad state of affairs that 60 years after independence, people still have to lose their lives due to illicit liquor. The decision of governor Waiguru, was of course informed by the need to regulate the sale of liquor and minimize further deaths. I am however, of the view that her decision had several mishaps which would make it subject to judicial review. The reasons are provided below.

The decision by the governor violates the principle of legitimate expectation

Lord Diplock, in the celebrated case of CCSU vs. Minister for the Civil Service,10 delineated the ingredients that one would be required to satisfy to invoke the doctrine of legitimate expectation including:

  1. i) It is a consequence that affects a person that is not the decision-maker.
  2. ii) A person is deprived of a benefit which in the past he has been allowed to enjoy.

iii) The person affected legitimately expected the decision maker to let him/her enjoy it until a rational ground is given for the withdrawal of the benefit.

  1. iv) The decision maker had the authority to make the decision. (He or she had legal backing.)

 

This principle has been adopted by Kenyan courts and has also found statutory backing. Under Section 7(2)(l) of the Fair Administrative Action Act. Courts and tribunals have the discretion to review administrative actions that may be seen to violate the legitimate expectation of a person to whom it relates.11 In the Kenyan case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others for a legitimate expectation to arise, there must be an express and ambiguous promise given by a public authority, the expectation must be reasonable, the representation must be lawful and that the expectation cannot be against clear constitutional provisions.12

In my view, the decision by the governor to revoke the licenses of the bar owners was a flagrant violation of this cardinal. When the bar owners paid for the licenses, they had a legitimate expectation that the licenses would be active until they expired and not until the governor made a roadside decision during a private function on a weekend. The expectation by the bar owners was lawful in the sense that the body responsible for granting licenses had the authority to do so. The body is the county licensing liquor committee established by the Kirinyaga County Alcoholic Drinks Act.13

The decree of the governor was therefore in total disregard to this principle and would make an interesting case for the subject of judicial review.

The decision by the governor violates the bar owner’s right to fair administrative action

As I had already stated above, the right to fair administrative action has been enshrined in the Bill of Rights. The drafters of the Constitution were of the view that where a decision affects a person adversely, the person affected deserves to be given reasons for the action.14 It is known as the duty to give reasons. This has been reiterated by Sections 4 and 6 of the Fair Administrative Action Act of 2015.15 Failure to provide sufficient reasons in written form may therefore constitute a ground for judicial review. In the case of Priscilla Wanjiku Kihara v Kenya National Examination Council, the High Court held that failure to give reasons for an administrative action may affect and invalidate an administrative action. Dr Seth Wekesa, opines that the duty to give reasons is paramount as it promotes good public administration.16

A decision that involves the revocation of licenses, thereby affecting the income of thousands of livelihoods, was definitely an administrative action that was adverse. What was required thereof would be the County Liquor Licensing Committee giving the bar owners sufficient reasons as to why the county opted to withdraw their lawfully acquired licenses. This was not done, and instead, the governor only gave oral reasons for the withdrawal at a private ceremony. Oral reasons are not sufficient in the Kenyan legal system. Migai Akech, states that the reasons should be not only written, but they should also be written and sufficient. This was not the case.17 In my view therefore, this amounted to procedural impropriety hence violating the rights of the bar owners to fair administrative action.

I shall conclude by adopting the words of the High Court in the case of Keroche Breweries Limited & 6 others v Attorney General & 10 others which stated that “whereas compliance with the dictates of the rule of law may sometimes be frustrating and at times obstructive and inconveniencing to those in authority, that is a sacrifice we must make since as appreciated in the preamble to the Constitution, we recognize the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.18

The actions taken by the governor of Kirinyaga were appropriate and necessary since people had lost their lives and others had gone blind. However, such actions must adhere to the established legal procedures. Kenya being a constitutional democracy, calls for adherence to the rule of law to promote fairness among us and ensure that each person enjoys their constitutionally enshrined rights.