Not all differential treatment violates equality rights under the Constitution

Republic v Tanathi Water Services Board & 2 others Ex parte Senator Johnstone Muthama

Judicial Review No. 374 of 2013

On 11^th June 2013, the applicant (Senator of Machakos County, Johnson Muthama) filed a Notice of Motion through a judicial review seeking several orders against the defendant, on behalf of the large Machakos County, disputing the Trans-County and National Project in which he alleged that the decision of the respondent to have the natural resources disseminated to Kitui could deprive the people of Machakos County several rights under the Constitution. The applicant averred that such a decision was deceptive, sham, illegal and discriminatory and a strategy to gain political mileage by the respondent at the expense of the poor and deserving residents of Machakos County who needed the resources to enhance and improve their livelihood.

The Tanathi Water Project in Machakos County was founded to facilitate the people of Machakos a constitutional guarantee to be free from hunger, and to have adequate food of acceptable quality as provided under article 43(1) (c) of the Constitution. The respondent had designed the project in a manner likely to delineate and discriminate against the people of Machakos County in favour of the people of Kitui County hence violating Article 27 of the Constitution that guaranteed equality before the law.  The applicant faulted the act of the respondent alleging that it went against the principles of legitimate expectations and reasonability in exercise of constitutional and statutory powers hence it was irrational, corrupt and tainted with illegalities.

Issues:

        i.            Whether there was a recognizable public law wrong that had been committed by the respondent to warrant judicial review

      ii.            Whether judicial review allowed the court of review to examine the evidence with a view of forming its own opinion on the substantial merits of the case

    iii.            Whether a declaration falls under the purview of judicial review that would require viva  voce evidence to be adduced for the determination of the case

   iv.            Whether a claim for differential treatment could be properly adjudicated by way of affidavit evidence

     v.            Whether judicial review cases which were neither criminal or civil required Civil Procedure Act (cap 21) to apply

   vi.            Whether there was considerable differential treatment between the people of Machakos and the people of Kitui that could amount to discrimination outlawed by the Constitution

Constitutional law-discrimination-differential treatment- equality- whether differential treatment results in equality- Whether there was considerable differential treatment between the people of Machakos and the people of Kitui that could amount  to discrimination outlawed by the Constitution-Constitution of Kenya, 2010 articles 27, 43(1)(c)

Judicial Review-orders of mandamus, certiorari and prohibition-whether judicial review orders allow the High Court of review to examine the evidence with a view of forming its own opinion about the substantial merits of a case-Law Reform Act (cap 26) sections 8 & 9

Civil Practice and Procedure -procedural law – affidavit evidence -whether a claim for differential treatment could be properly adjudicated by way of affidavit evidence- whether judicial review cases which were neither criminal or civil required the application of the Civil Procedure Act (cap 21)- Civil Procedure Rules (cap 21 Sub Leg) Order 53

Words and phrases

Black’s Law Dictionary defines discrimination as follows: “The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex nationality, religion or handicap or differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”

The Bill of Rights Handbook, Fourth Edition 2001, defines discrimination as follows: - “A particular form of differentiation on illegitimate ground.”…

       Held :

1.     Judicial review was premised on the grounds of illegality, irrationality and procedural impropriety. Decision maker needed to understand correctly the law that regulated his decision-making power and ought to give effect to it. Irrationality meant, applying the decision which no sensible person who had applied his mind to the question to be decided would have arrived at it. Procedural impropriety meant the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who would be affected by the decision.

2.     Judicial review was a special supervisory jurisdiction which was different from both ordinary (adversarial) litigation between private parties and an appeal (rehearing) on the merits.  There ought to have been a recognizable public law wrong that had been committed as opposed to private law proceedings that involved claimant asserting rights.

3.     Judicial review was an important control ventilating a host of varied types of problems ranging from matters of grave public concern to those of acute personal interest, from general policy to individualized discretion; from social controversy to commercial self-interest.

4.     Judicial review was constitutional supervision of public authorities involving a challenge to the legal validity of the decision. It did not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. Exploring evidence in order to see if the decision was vitiated by legal deficiencies, was perfectly clear that review, was distinct from an ordinary appeal, the court ought not to set about forming its own preferred view of the evidence for it was concerned with the decision making process and illegality or otherwise  the decision rather than with the merits.

5.     Declarations did not fall under the purview of judicial review for it required viva voceevidence to be adduced for the determination of the case on merit before declaring ownership. Judicial review did not deal with ownership of disputed property but only determined the jurisdiction of the decision makers. Therefore an applicant bringing  judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court did  not have  jurisdiction in a judicial review proceeding to determine such a dispute and could leave the parties to ventilate the merits of the dispute in the ordinary civil suits.

6.     Resolution of the dispute before court required the court to make a determination on disputed issues of facts and this was not suitable for judicial review. Judicial review jurisdiction was a special jurisdiction which was neither civil nor criminal and the Civil Procedure Act did not apply. It was governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law. Section 8 of the Law Reform Act specifically sets out the orders that the High Court could issue in judicial review proceedings and the orders were, mandamus, certiorari and prohibition.

7.     The law did not prohibit discrimination but rather unfair discrimination. Unfair discrimination implied treating people differently in a way which impaired their fundamental dignity as human beings, who were inherently equal in dignity. Unlawful or unfair discrimination could be direct or subtle. Direct discrimination involved treating someone less favourably because of their possession of an attribute such as race, sex or religion compared with someone without that attribute in the same circumstances. Indirect or subtle discrimination involved setting a condition or requirement that was a smaller proportion of those with the attribute were able to comply with, without reasonable justification.

8.     A classification which was unfair in one contest may not have necessarily been unfair in different context. Not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the constitution.  The appropriate perspective from which to analyse a claim of discrimination was both a subjective and an objective component which required the view from a larger social political and legal context other than to look at the impugned legislation which created the distinction whether differential treatment resulted in equality.

9.     Even if the court was to find there was differential treatment between the people of Machakos and the people of Kitui that alone could not necessarily amount to discrimination as was outlawed by the Constitution. Certain instances raising issues of discrimination could properly be adjudicated by way of affidavit evidence which failed the candidature of judicial review.

10. In order to determine the conflicting positions with respect to the aforesaid larger social, political and legal context, affidavit evidence would not suffice and that it would be necessary to take viva voce evidence which would have to be subjected to cross examination to verify its veracity and probative value.

Notice of Motion struck out for incompetence and no orders as to costs