In a functioning constitutional democracy, an impartial and independent judiciary with the power to remedy breaches of fundamental rights is indispensable. Justice Hayanga understood this and used his legal acumen to further cement the supremacy of the Constitution in the protection of fundamental constitutional rights. This was almost a decade before the adoption of our new Constitution in 2010.
Although these rights are now fully enshrined under the 2010 Constitution, in the landmark case of Dominic Arony Amolo v AG (2003), Justice Hayanga set the pace for expanded protection of human rights by opening up access to justice for thousands of Kenyans who were the victims of limitation of action defence in the Government Proceedings Act that the KANU government used to rely on to lock out genuine human rights actions.
I had the privilege of arguing the case and responding to a preliminary point of law seeking to dismiss the case on the alleged ground that the suit was time-barred. The late judge held that the Constitution is supreme in matters touching fundamental rights and therefore, the Limitation of Actions Act did not apply to actions brought under the Constitution. This momentous ruling became the point of reference for all petitions and judicial review applications, especially by Kenyans who had long been prevented by state machinery from enjoying fundamental freedoms and rights.
Today in Kenya, court judgments and judicial pronouncements routinely maintain that the government is constitutionally mandated to operate within the bounds of the Constitution and protect individual rights from infringement by the state.
As Justice Hayanga is laid to rest, his contributions to the place of judicial review in modern-day Kenya will remain a central legal safeguard against administrative injustice, oppression and arbitrariness against the people.
His dedication to upholding the rule of law and protecting the rights of all Kenyans will not be forgotten, and his legacy will continue to inspire current and future generations of legal professionals. May his soul rest in eternal peace.
