By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- The doctrine of constitutional avoidance, while important in its own right, has often been misapplied to justify remedial timidity. In Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR, the court’s reluctance to grant immediate relief based on this doctrine resulted in the continued violation of privacy rights, demonstrating how procedural conservatism can undermine substantive constitutional protection. The judiciary must recognize that effective remedial crafting often requires bold intervention at early stages of constitutional litigation.
- The concept of participatory remedies, where affected parties are involved in the design and implementation of constitutional relief, represents an underutilized innovation in Kenyan constitutional jurisprudence.
The constitutional promise of effective remedies stands as a cornerstone of our transformative constitutional architecture, yet the actualization of this promise through Article 23 has often fallen short of its transformative potential. The judiciary’s approach to remedial crafting has oscillated between timid restraint and bold innovation, creating a jurisprudential landscape marked by inconsistency and missed opportunities.
This doctrinal incoherence has often rendered constitutional litigation exercises in futility, where even meritorious claims succumb to the twin challenges of mootness and temporal irrelevance. The imperative for innovative remedy crafting, therefore, emerges not merely as a judicial preference but as a constitutional necessity anchored in the principles of effective redress and substantive justice.
The foundational challenge in remedial jurisprudence lies in the persistent adherence to traditional common law remedies, despite the explicit constitutional mandate for innovative and effective relief under Article 23. In the landmark case of Katiba Institute v President’s Delivery Unit & 3 others [2019] eKLR, the court’s reluctance to grant anticipatory remedies resulted in the continued implementation of unconstitutional policies, effectively rendering the subsequent judgment pyrrhic.
This conservative approach stands in stark contrast to the bold remedial creativity displayed in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2012] eKLR, where the court crafted a novel supervisory order that ensured the effective implementation of constitutional values in public appointments.
The temporal dimension of constitutional remedies presents a particularly vexing challenge, where the judiciary’s hesitation to grant interim relief often results in the perpetuation of constitutional violations. The case of Law Society of Kenya v Cabinet Secretary for Information Communication & Technology [2020] eKLR illuminates this dilemma, where the court’s delayed intervention in addressing digital rights violations allowed irreparable harm to occur despite the eventual finding of unconstitutionality. This pattern of remedial inadequacy underscores the urgent need for a more proactive and time-sensitive approach to constitutional remedies, one that recognizes the often irreversible nature of constitutional violations.
The concept of structural interdicts, while sporadically employed in Kenyan jurisprudence, represents a powerful tool for ensuring the effective implementation of constitutional remedies. In Mitu-Bell Welfare Society v Attorney General & 2 others [2021] eKLR, the court’s innovative use of supervisory orders and reporting requirements demonstrated the transformative potential of structural remedies in addressing systemic constitutional violations.
The judiciary’s willingness to maintain oversight through continuing mandamus orders in this case stands as a testament to the effectiveness of creative remedial crafting in ensuring meaningful constitutional compliance.
The principle of effective remedy, enshrined in international human rights law and incorporated through Article 2(6) of the Constitution, demands a more robust and innovative approach to remedial crafting. The judiciary’s inconsistent application of this principle, as evidenced in Communications Authority of Kenya v Royal Media Services Limited & 5 others [2018] eKLR, where the court declined to grant provisional measures despite clear evidence of irreparable harm, highlights the gap between constitutional promise and judicial practice. This disconnect necessitates a fundamental reimagining of remedial powers under Article 23, one that embraces the full spectrum of available remedial tools.
The doctrine of constitutional avoidance, while important in its own right, has often been misapplied to justify remedial timidity. In Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR, the court’s reluctance to grant immediate relief based on this doctrine resulted in the continued violation of privacy rights, demonstrating how procedural conservatism can undermine substantive constitutional protection. The judiciary must recognize that effective remedial crafting often requires bold intervention at early stages of constitutional litigation.
The concept of participatory remedies, where affected parties are involved in the design and implementation of constitutional relief, represents an underutilized innovation in Kenyan constitutional jurisprudence. The successful application of this approach in Okiya Omtatah Okoiti v Nairobi Metropolitan Services & 3 others [2020] eKLR demonstrates how inclusive remedy crafting can enhance both the effectiveness and legitimacy of constitutional orders. This participatory model offers a promising framework for addressing complex constitutional violations that require nuanced and context-sensitive solutions.
The imperative of preventive remedies, particularly in cases involving fundamental rights violations, demands greater judicial attention. The court’s approach in Muslims for Human Rights (MUHURI) v Inspector-General of Police & 5 others [2021] eKLR, where preemptive relief was granted to prevent systematic human rights violations, exemplifies the type of bold remedial crafting required under Article 23. This preventive approach aligns with the constitution’s transformative agenda and its emphasis on proactive rights protection.
The principle of effective relief requires courts to consider not only the immediate resolution of constitutional violations but also the broader institutional reforms necessary for preventing future breaches. The mixed record of Kenyan courts in crafting such comprehensive remedies, as seen in various public interest litigation cases, points to the need for a more systematic approach to remedial design. This approach must balance immediate relief with long-term institutional reform, ensuring that constitutional remedies serve both corrective and deterrent functions.
The challenge of remedy implementation presents another critical dimension requiring innovative judicial approaches. The experience in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR demonstrates how even well-crafted remedies can falter without effective implementation mechanisms. Courts must therefore incorporate monitoring and enforcement mechanisms into their remedial orders, ensuring that constitutional relief translates into practical change.
The concept of cascading remedies, where relief is structured in phases to address both immediate and systemic aspects of constitutional violations, offers a promising framework for effective remedy crafting. This approach, while demanding greater judicial engagement, ensures that constitutional relief remains responsive to evolving circumstances while maintaining pressure for meaningful reform. The judiciary’s occasional success with this model suggests its potential for broader application.
The principle of remedial flexibility, which allows courts to modify and adapt their orders based on implementation experience, represents another crucial innovation in constitutional remedy crafting. This approach recognizes the dynamic nature of constitutional violations and the need for responsive judicial intervention. The successful application of this principle in several public interest cases demonstrates its value in ensuring the continued effectiveness of constitutional remedies.
The imperative of timely intervention requires courts to develop expedited procedures for urgent constitutional matters. The judiciary’s inconsistent track record in this regard, particularly in cases involving time-sensitive rights violations, highlights the need for standardized protocols for emergency relief. Such protocols must balance the need for thorough consideration with the imperative of preventing irreparable constitutional harm.
The development of coherent remedial principles requires courts to move beyond case-by-case determination toward a more systematic approach to constitutional relief. This approach must be grounded in the transformative vision of the constitution while remaining responsive to practical implementation challenges. The judiciary’s role in this endeavor is not merely to resolve disputes but to craft remedies that give life to constitutional values and ensure their practical realization in the lives of citizens.
The writer is a lawyer and legal researcher
