By Walter Khobe
In August 2018, Zimbabwe held its first post-Robert Mugabe elections. The Zimbabwean Electoral Commission declared the ruling ZANU-PF’s Emmerson Mnangagwa as the duly elected President of Zimbabwe in the said election. This prompted the presidential candidate for the opposition, MDC-Alliance, Mr. Nelson Chamisa to challenge the declaration of Mnangagwa as president elect before the Constitutional Court of Zimbabwe. On 24th August 2018, the court returned the verdict that Mnangagwa was duly elected and the electoral process substantially complied with the electoral laws. This judicial decision elicited an interesting response by the Zimbabwean opposition, the MDC –Alliance announced on 25th August 2018 that the party will be challenging the verdict by the Zimbabwean Constitutional Court before the African Commission on Human and Peoples’ Rights. This step to seek recourse before a supra national body to challenge a decision by the apex court of a state is the subject of this commentary, with a focus on the interplay between the competence of supra national bodies and the Kenyan domestic justice system.
It should be pointed out at the outset that enforcement of judicial review orders by national courts is a path fraught with challenges since judges control neither the sword nor the purse. This follows from the reality that a court’s ability to effectively exercise its constitutional review power depends on political acquiescence. When pushed to the international plane, enforcement of judgments by supra-national tribunals faces even more challenges than the not rosy task of gaining constitutional obedience to domestic court decisions. With regards to international judicial decisions, national courts have a crucial role to play in ensuring domestic compliance with obligations arising from the international sphere. Where national judges view international law as supreme and/or see respect for international court rulings as legally obligatory, a national culture of constitutional obedience to international law is more likely to emerge. It is in fact a reality that national judicial support is a necessary condition for a national legal and political culture of constitutional obedience to international law.
Under public international law, a state is not permitted to use its domestic law as an excuse for not implementing its international obligations. The binding character of international obligations applies to decisions of international tribunals. Erika de Wet in ‘The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step Towards Developing a Doctrine on the Status of International Judgments within the Domestic Order’ argues that the principles of the rule of law, a country’s obligations under international law and the obligation to interpret domestic law in a manner that is friendly to international law demands that courts should enforce judgments by international tribunals. In addition, Alexandra Huneeus in ‘Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights’ argues that there are beneficial incentives for domestic judges to enforce the decisions by international tribunals as this has the possibility of giving domestic courts more powers.
In Peter Odiwuor Ngoge t/a O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni t/a Namada & Co Advocates & 725 others, Petition No. 13 of 2013 the Supreme Court of Kenya adverted to, though the court did not give firm directions on the question, the place of judgments by international tribunals in Kenya’s domestic sphere. The Court stated thus:
“ Mr. Ngoge, the 1st appellant and counsel for the 2nd appellant, filed his submissions in response to the preliminary objections on 4th February, 2014 contending that the Supreme Court decisions being relied upon by the respondents (Lawrence Nduttu, and Peter Odiwuor Ngoge v. Francis Ole Kaparo and Five Others) “are currently under review by the African Commission on Human and People’s Rights”, as he has contested their validity before that Commission, on the basis that they were delivered by a Bench of two Judges, contrary in his opinion, to the provisions of Article 163(2) of the Constitution. Learned counsel, however, as we would remark, while attributing his contest to the framework of the African Charter on Human and People’s Rights, and while averring that the Supreme Court’s past Rulings are under review before a supra-national human rights entity, did not address the structural link between the domestic and the regional arbitral or adjudicatory agencies, such as could bear a hierarchical bond, with its essential operational dynamics, and with the decision-making process of the Kenyan Courts, founded upon the people’s sovereignty (Article 1(3) (c) of the Constitution of Kenya, 2010).”
By virtue of this paragraph, the Supreme Court appears to be concerned that giving effect to the decisions of supra national adjudicatory bodies will marginalise domestic courts and undermine national constitutional legality.
This paragraph by the Supreme Court can be argued to be a tacit intention to undermine Kenya’s respect for international law and decisions by supra national courts. It is arguable that the Supreme Court has, in the two diverging optics through which national judges approach international law and review of state actions by international courts: – the luxury optic and the fail-safe optic –embraced the luxury optic. (See in this regard: Karen Alter ‘National Perspectives on International Constitutional Review: Diverging Optics’) The luxury optic suggests that although International Courts may exercise valid legal authority to generate binding legal rulings, International Court rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm. The fail-safe optic, by contrast, insists that International Court rulings must guide and perhaps even bind national legal review. When the luxury or fail-safe perspective becomes embedded into national apex court doctrine and practice, the optic comes to define the national legal culture of constitutional obedience to international law. This legal culture can then translate into a political culture of constitutional obedience or disinclination towards international law.
Filippo Fontanelli in ‘I know It’s Wrong but I just Can’t Do Right: First Impressions on Judgment No. 238 of 2014 of the Italian Constitutional Court’ argues that the only view that is in harmony with Public International Law is that a state must attach overriding weight to the country’s international obligations and binding decisions of international tribunals resulting from such obligations. This view can be supported in the Kenyan context by the fact that the Constitution of Kenya incorporates international law as law in Kenya within the supremacy clause in article 2 of the Constitution. Moreover, decisions by international tribunals should not be treated as if they are “foreign judgments” by courts in other countries. In this regard, Lorand Bartels in ‘Review of the Role, Responsibilities and Terms of Reference of the SADC Tribunal’ argues that judgments by international tribunals and courts should be treated as “domestic judgments” and ought not to be treated as “foreign judgments” at the domestic level. Thus the formalist, law-as-specifically-national-response approach, advanced by the Supreme Court seems to be at cross-purposes with the demands of Public International Law if the implication of the Ngoge versus Namada judgment is that domestic courts are not bound by decisions of supra-national tribunals.
It should be noted that the drafting and ratification of the 2010 constitution, which is modelled on the post–World War II era constitutionalism, suggest a connection to international human rights instruments which are a product of the post-war era. Thus it is premised on an assumption that there is some likelihood of benefit from considering the decisions of international tribunals implementing parallel norms. In drafting bills of rights premised on International human rights instruments, nations in the post-war era are committing themselves to convergence in meaning and application over time, to a shared set of principles, values or aspirations. (See in this regard: Armin von Bogdandy et al ‘Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune’.)
Moreover, it should be noted that the embrace of international law at articles 2, 21 and 51 of the Constitution envisages that Kenya in the post-2010 dispensation should adopt a convergence approach to international norms and institutions and not the approach of resistance that the Supreme Court seems to have adopted in this instance. A posture of convergence recognizes the importance of international norms in a legal universe that at the same time is quite plural and diverse. The diversity of legal orders—including the sub-national order brought about by devolution—calls for the constitution to play a mediating role between global and local legal demands, considering both similarities and differences in approach and relying on public reason-giving to account for choices made. Convergence takes account of the multiple functions of the constitution and is built on a recognition that justice will not reside uniquely at only one locus (e.g., international, national, local) of lawmaking. Convergence is respectful of the need for balance between democratic and universalist elements characteristic of the 2010 constitution. (See in this regard: Vicki C. Jackson ‘Constitutional Engagement in a Transnational World’; See also Chris Thornhill ‘The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically about Political Constitutionalism’.)
The question of sovereignty and the modern state
The Supreme Court invokes the notion of state sovereignty in article 1(3) (c) of the Constitution to back its argument thus:
“ Learned counsel, however, as we would remark, while attributing his contest to the framework of the African Charter on Human and People’s Rights, and while averring that the Supreme Court’s past Rulings are under review before a supra-national human rights entity, did not address the structural link between the domestic and the regional arbitral or adjudicatory agencies, such as could bear a hierarchical bond, with its essential operational dynamics, and with the decision-making process of the Kenyan Courts, founded upon the people’s sovereignty (Article 1(3) (c) of the Constitution of Kenya, 2010).”
The Supreme Court’s opinion appears to be hinged on the argument that judicial authority derives from the Constitution which the people democratically consented to and that only those institutions textually donated to judicial power in the Constitution can be said to have been donated to adjudicatory powers by the people. Democratic self-rule is viewed under this approach as particularly threatened when non-domestic adjudicatory bodies exercise influence within the polity. It follows according to this line of thought that adjudicatory functions outside the domestic sphere are inconsistent with self-governance and is a threat to the capacity of the polity for continued self-government.
The question that this approach raises is that does it make sense to speak of sovereignty in the context of the modern state and taking into account the 2010 Constitution’s embrace of international human rights norms and institutions? These concerns fit within a larger set of questions about the balance between constitutional empowerment and constitutional constraint and the appropriate role of judicial interpreters in identifying and enforcing those constraints.
The distinguished legal philosopher Neil MacCormick in ‘Questioning Sovereignty: Law, State and Nation in the European Commonwealth’ famously argued that processes of ‘division’ and ‘combination’ of the state had already taken place in such a way that we are now ‘beyond the sovereign state’. MacCormick believed that international institutional developments, including the emergence of the legal structures of regional integration with the twin principles of the direct effect and supremacy of international law, had rendered sovereignty largely irrelevant to modern states. In his view sovereignty had stopped being a useful idea, since a well-ordered state under the rule of law always disperses power to various bodies and sources both inside as well as outside its borders. So we cannot become fully sovereign, in the sense of concentrating power in one institution or body. That is not how modern states work.
Other theorists, however, disagree with this dismissal of sovereignty by MacCormick. Martin Loughlin in ‘The Idea of Public Law’ has criticised MacCormick for failing to appreciate the true nature of sovereignty. He believes that sovereignty as power is an essential precondition of any legal order. Loughlin calls this view a ‘relational’ concept of sovereignty because for him political power is ‘generated by the relationship between rulers and ruled’. The argument is based on an idea of ‘constituent power’ which resides with the people or the nation, and which is the ‘repository of sovereignty in those regimes that adopt formal constitutions and allocate legal authority to designated organs of government’. In Loughlin’s view, sovereignty conceived as constituent power, is an essential element of all political activities and processes and is the ‘generative principle’ of public law. In summary, for MacCormick, sovereignty was once able to guide constitutional law but has now been replaced by other ideas. Loughlin denies that this change has taken place.
Back to the 2010 Constitution and the Kenyan context, our understanding of the notion of sovereignty must take into account a holistic interpretation of the Constitution and not an isolated latching on article 1(3)(c). If we are to embrace MacCormick’s idea of ‘post-sovereignty’ or if we are to go along with the Supreme Court’s apparent endorsement of Loughlin’s ‘social relations’ approach to sovereignty, the structure of the Constitution must offer the guiding framework. The 2010 Constitution at article 2(5) and (6) recognises international law as a source of law in Kenya. Of significance to this question is article 21(4) of the Constitution which imposes an obligation on the state to fulfil its international obligations with respect to human rights and fundamental freedoms. Also relevant would be article 51(3) of the Constitution that commands parliament to take into account international human rights instruments when enacting legislation. Further, article 143(4) of the Constitution provides that the immunity of the President from criminal liability shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity. Taking these provisions into account, it is arguable that Kenya embraced a modern state that attenuated the traditional idea of sovereignty by splitting power both domestically to the three arms of governments, two levels of government, and constitutional commissions and independent offices, but also dispersed power to international institutions especially international human rights and international criminal law mechanisms.
Against the backdrop of the constitutional provisions discussed in the preceding paragraph, the 2010 Constitution is not perfectly neutral on international commitments. The Constitution expresses a kind of constitutionalism which does not fit the sovereignty-based arguments advanced by the Supreme Court. In the 2010 constitutional frame, popular sovereignty is coupled with the openness towards the international community. Openness means renouncing exercising spheres of sovereignty under some circumstances (reciprocity) and in light of specific purposes (namely fulfilment of international obligations). This is another way to say that the Constitution looks at the real circumstances of social and political life, by acknowledging that States need forms of cooperation which may be required by historical contingencies as well as by economic, social and political changes. The Constitution requires sovereignty to be exercised not in isolation, but in a constant dialogue with international partners. The reason for the dialogue is so that Kenya fulfils its international obligations (again, as envisaged in Article 21(4)). So there is a constitutional preference to support supra-national tribunals in light of the constitutional requirement for the state to fulfil its international obligations, rather than to thwart or stand in the way of the work of supra national tribunals.
The approach advanced herein would find support from the constitutional theorist Christopher Eisgruber who in ‘Constitutional Self-Government’ speaks of a democratic constitution as a mechanism for breaking up power: ‘If constitution makers want to establish a democratic system of government, they should design institutions that are impartial rather than majoritarian’. Eisgruber proposes that a constitution should choose ‘to fragment power in order to increase the likelihood that the government will be responsive to the interests of minorities as well as majorities’. For this view of the constitution, sovereignty is actually irrelevant. Eisgruber argues that the meaning and purpose of a constitution is a democratic one, namely to create ‘a range of institutions to represent a people who would otherwise have no satisfactory way to act collectively’. We gain nothing by supposing a source of overwhelming political power anywhere in that institutional framework.
The approach advanced in this commentary of an attenuated modern conception of sovereignty can be seen in the decision by the French Constitutional Council in Déc. 76–71 DC of December 29–30, 1976, Recueil des Décisions du Conseil constitutionnel; Déc. 92–308 DC of April 9, 1992, Recueil 55 where the Council spoke of a “transfer of competences,” to international adjudicatory bodies while the “essential conditions of the exercise of national sovereignty” must be ensured. Similarly, the German Federal Constitutional Court assumed, in its Maastricht judgment, BVerfGE 89, 155 (1993), 186ff, that the Federal Republic remains sovereign even as a member state of the European Union; however, to the extent that powers have been transferred, it exercises its sovereignty together with other member states. The German Federal Constitutional Court followed the same approach in its Lisbon judgment, BVerfGE 123,267 (2009), 343ff, where like the French Constitutional Council, it emphasized the difference between sovereignty, which inheres in the member states, and sovereign or governmental powers, which may be transferred, albeit only to a certain extent to international adjudicatory bodies. Familiar to the Anglophone world, would be the Factortame v. Secretary of State for Transportation, A.C. 603 (1991) where the House of Lords admitted the loss of sovereignty in its Decision on the implication of the United Kingdom’s entry into the European Community in 1972, and the adoption of the Civil Rights Act of 1997, with which the European Human Rights Convention was adopted into national law. (For discussion see: Dieter Grimm, ‘Sovereignty: The Origin and Future of a Political and Legal Concept’; See also Dieter Grimm, ‘Defending Sovereign Statehood against Transforming the European Union into a State’.)