The 2010 Constitution embodies the aspiration to transform Kenya into a democratic, participatory, egalitarian, and accountable state and society. Justice Mumbi Ngugi has been at the forefront in ensuring that these aspirations are turned into a lived reality for Kenyans. Her prolific career stands as testament to the judiciary’s role in effecting social change, defending the vulnerable, and protecting fundamental rights. Towards this end, she has rendered iconic judicial opinions making exceptional contribution to Kenya’s jurisprudence.
Just like C. B. Madan was to his generation, Justice Mumbi Ngugi is one the greatest legal minds of this generation. She has had an undeniable impact on the interpretation of the 2010 Constitution, including the Bill of Rights. Where the opportunity presents itself, she looks for ways to expand the law to protect the weak, just as C.B. Madan would do. This is illustrated by the following groundbreaking and progressive decisions:
Our Constitution promises material rights that enable practical realisation of the goal of securing human dignity for all. This has been achieved by entrenching justiciable socio-economic rights. Towards realization of this aspiration, Justice Mumbi Ngugi has rendered internationally acclaimed path-breaking judgments enforcing the right to housing in William Musembi & 13 Others v Moi Education Centre Company Limited & 3 Others, Petitions Number 264 and 274 of 2013 and Mitubell Welfare Society vs Attorney General and 2 Others, Petition Number 164 of 2011.
Furthermore, in recognition that the Constitution demands that the state must include the poorest and the most vulnerable in our society in its policies, Justice Mumbi Ngugi has recognized and enforced the right to access essential and affordable medicines in P.O.A. & 2 Others v Attorney General, Petition Number 409 of 2009. Still on the theme of health care, in Daniel Ng’etich & 2 others v Attorney General & 3 others, Petition 329 of 2014 Justice Mumbi found that the confinement of persons suffering from infectious diseases in prison facilities violates the Bill of Rights. Further in M. A. & Another v Hon. Attorney General & 4 others, Petition No. 562 of 2012, she made a declaration that the Kenyan Government must take the necessary steps to protect all patients from arbitrary detention in health care facilities.
In a post-authoritarian state, which aspires to a regime that precludes the denial by the state of the equal value and worth of every human being, it is important to recognise the centrality of plurality in such a new constitutional order. With two other judges, in Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 Others, Petition Number 440 of 2013 Justice Ngugi recognised the moral citizenship and sense of self-worth of sexual minorities, which is a minority community in Kenya. This was also the case in A.N.N v Attorney General, Petition Number 240 of 2012 when she protected the right to human dignity and privacy of a transgender person.
In Anthony Njenga Mbuti & 5 Others v Attorney General & 3 Others, Petition Number 45 of 2014, Justice Mumbi held that unlike under the colonial regime, the observance of human rights, the rule of law, non-discrimination and equal protection of the law are the hallmarks of the new dispensation. She thus held that the peace bond regime does not comport with the ethos of freedom embodied in the Constitution. Similarly, she held that un-procedural rendition to foreign countries does not pass constitutional muster in Salim Awadh Salim & 10 Others v Commissioner of Police & 3 Others, Petition Number 822 of 2008.
JUSTICE MUMBI NGUGI’S C. B. MADAN PRIZE CITATION
Freedom of Expression also received a boost from Justice Ngugi when she declared a repressive law that criminalized “improper use of a licensed telecommunications system’ unconstitutional. In Geoffrey Andare v Attorney General & 2 others, Petition No. 149 of 2015 she declared as unconstitutional section 29 of the Kenya Information and Communication Act, on the basis of the challenge is that it criminalises publication of certain information in vague and overbroad terms, has a chilling effect on the guarantee to freedom of expression, and creates an offence without creating the mens rea element on the part of the accused person.
Justice Mumbi Ngugi has used the equality clause to open space for women to previously exclusive patriarchal structures in Centre for Rights Education & Awareness & 6 Others v Attorney General, Petition Number 207 of 2012, and later in Centre for Rights Education & Awareness (CREAW) v Attorney General & another Petition Number 182 of 2015. In both opinions, she enforced the constitutional requirement that no gender should take more than two –thirds of public positions. Further, sitting in a three judge bench in Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others, Petition 160 of 2013, she held that any kind of discrimination perpetrated by a private members club through a by-law against its members was unconstitutional.
Judge Mumbi Ngugi has also played a leading role in ensuring that ethical edicts on leadership and integrity entrenched in the Constitution are adhered to in appointment of state officers. She was part of the three judge bench in the landmark Trusted Society of Human Rights v AG and others Petition No. 229 of 2012 and later as a sole judge in Benson Riitho Mureithi v J.W. Wakhungu & 2 Others, Petition Number 19 of 2014. These twin decisions are remarkable efforts aimed at ensuring that the vision of chapter six of the 2010 Constitution has bite.
These are but a few cases from Justice Mumbi Ngugi’s career. They are a compelling illustration of the enduring judicial contribution that a judge can make in transforming a society and of the importance and responsibility of the judiciary in our society and in our system of government. They remind us that our courts stand as bulwarks against legislative or executive excess or simply against the unintended consequences of legislation. Her judgments cited with approval by scholars and judges across our borders, speak volumes of her knowledge of the law. Through them, our Constitution and its Bill of Rights speak, and they often speak, as needed voices of conscience and reason.
It should also be appreciated that a Judge serving in the Kenyan Judiciary in the post-2010 dispensation needs plenty of courage, intellectual depth, and conviction to see the transformative project of the Constitution to fruition. Justice Mumbi Ngugi has displayed all this in abundance. Her decisions will be read in law schools across the globe for decades to come. Justice Ngugi is cut out of the same cloth as C.B. Madan.