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Published online by Cambridge University Press: 07 February 2018
The wording of article 47 of Kenya's Constitution of 2010 is almost identical to that of the section 33 rights to just administrative action in South Africa's 1996 Constitution. Like section 33, article 47 mandates the enactment of legislation to give effect to these constitutional rights, and Kenya's Fair Administrative Action Act 4 of 2015 was strongly influenced by the equivalent South African legislation, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). South Africa can thus be regarded as a sort of laboratory for Kenyan administrative justice. The aim of this article is to highlight some of the South African experience in relation to section 33 and the PAJA in the hope that Kenya will learn from some of South Africa's mistakes. It argues that the Kenyan courts should avoid following the example of their South African counterparts in allowing their mandated legislation to become almost redundant.
BA, LLB (Natal), MA (Oxon), PhD (Witwatersrand). Professor of law, University of the Witwatersrand, Johannesburg. This article is an expanded version of a paper presented at a meeting convened by the Katiba Institute at the Kenya School of Government, Nairobi, 21–22 March 2016. The author is grateful to Prof Migai Akech for his helpful comments on the piece; any errors are the author's. The article is based on research supported in part by the National Research Foundation of South Africa (grant no 96285). Any opinion, finding, conclusion or recommendation expressed in the material is that of the author and the foundation accepts no liability in this regard.
1 See, for instance, Sang, O “The right to fair administrative action in Kenya: Lessons from South Africa's experience” (2013) 1 Africa Nazarene University Law Journal 83Google Scholar.
2 Most of its provisions came into operation on 30 November 2000 in terms of proc R73 of 29 November 2000, while secs 4 and 10 only entered into force on 31 July 2002.
3 Constitution of the Republic of South Africa, Act 200 of 1993.
4 See for example Hoexter, C “A rainbow of one colour? Judicial review on substantive grounds in South African law” in Wilberg, H and Elliott, M (eds) The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (2015, Hart Publishing) 163Google Scholar at 185–87.
5 See for example Brookes, E and Macaulay, JB Civil Liberty in South Africa (1958, Oxford University Press)Google Scholar; Dugard, J Human Rights and the South African Legal Order (1978, Princeton University Press)Google Scholar.
6 Mureinik, E “A bridge to where? Introducing the interim bill of rights” (1994) 10 South African Journal on Human Rights 31CrossRefGoogle Scholar at 38.
7 South Africa enjoyed a League of Nations mandate over the territory from 1920 and remained in occupation illegally after the dissolution of the League in 1946. The historical events are usefully summarized in Naldi, GJ Constitutional Rights in Namibia: A Comparative Analysis with International Human Rights (1995, Juta & Co, Ltd)Google Scholar at 1–9.
8 Sec 43 of the Malawian Constitution of 1994 was clearly inspired by sec 24 of South Africa's Interim Constitution, while the wording of art 42 of Uganda's Constitution of 1995 is closer to that of Namibia's art 18.
9 For example, the Charter of Rights of the European Union includes a right to good administration in art 41, and similar rights are being considered by countries of the former Soviet Union: see Jowell, J “The universality of administrative justice?” in Ruffert, M (ed) The Transformation of Administrative Law in Europe (2007, European Law Publishers) 55Google Scholar at 64.
10 Constitution of the Republic of South Africa, 1996.
11 See W Mutunga “The 2010 Constitution of Kenya and its interpretation: Reflections from the Supreme Court decisions” (Inaugural Distinguished Lecture Series, University of Fort Hare, 16 October 2014); Orago, NW “Political and socio-economic transformation under a new constitutional dispensation: An analysis of the 2010 Kenyan Constitution as a transformative constitution” (2014) 2 Africa Nazarene University Law Journal 30Google Scholar.
12 Mutunga, id at 2–3; see also Miruka, C “Developmental public administration challenges in Kenya” (2008–09) 18 Lesotho Law Journal 47Google Scholar.
13 See further Sang “The right to fair administrative action”, above at note 1 at 90–91.
14 Pending the enactment of the legislation, sec 33 was to be read as if it took the form of sec 24 of the Interim Constitution. A similar regime applied to secs 9 (the right to equality) and 32 (the right of access to information), in respect of which national legislation was also mandated.
15 South African Law Commission Report on Administrative Justice (project 115, August 1999). The author was a member of the project committee.
16 See further Hoexter, C Administrative Law in South Africa (2nd ed, 2012, Juta & Co, Ltd)Google Scholar at 102–06.
17 See Parliamentary Debates: National Assembly Official Report (19 August 2014) (copy on file with the author).
18 Letter dated 9 July 2014 from Commissioner Otiende Amollo, Commission on Administrative Justice chair, to the Attorney General, Prof Githu Muigai SC.
19 In terms of art 116(2) of the 2010 Constitution. See OJ Dudley “Grounds for judicial review in Kenya: An introductory comment to the Fair Administrative Action Act, 2015” (5 October 2015), available at: <http://kenyalaw.org/kenyalawblog/grounds-for-judicial-review-in-kenya > (last accessed 5 December 2017).
20 I Currie The Promotion of Administrative Justice Act: A Commentary (2nd ed, 2007, Siber Ink), para 1.5; for the drafting history of the act, see paras 1.14–19.
21 Id, paras 1.6 and 1.14.
22 Following a process of public participation, a set of regulations was made under PAJA and published in GN R1022 Government Gazette 23674 (1 July 2002).
23 Sec 12 states: “This Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice.”
24 Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC) (Pharmaceutical Manufacturers Association), para 45; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) (Bato Star), para 22.
25 Suchan Investment Limited v Ministry of National Heritage and Culture and Three Others [2016] eKLR (4 March 2016) (Suchan Investment), para 54, echoing the words of O'Regan J in Bato Star, although without explicitly referring to the case.
26 For more detailed analysis, see Hoexter, C “The constitutionalization and codification of judicial review in South Africa” in Forsyth, C, Elliott, M, Jhaveri, S et al. (eds) Effective Judicial Review: A Cornerstone of Good Governance (2010, Oxford University Press) 44Google Scholar at 46–48.
27 See the essays collected in Forsyth, C (ed) Judicial Review and the Constitution (2000, Hart Publishing)Google Scholar.
28 Under sec 2, the 1996 Constitution “is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.
29 In Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC), para 22, Mokgoro J observed that “very powerful considerations would be required for its limitation to be reasonable and justifiable”.
30 J Gichuhi “Constitutionalization of administrative justice in Kenya” (2014), available at: <http://www.academia.edu/30476524/John_Gichuhi_Constitutionalisation_of_Administrative_Justice_in_Kenya_2014_> (last accessed 10 November 2017).
31 Initially under sec 98 of the Interim Constitution, and subsequently under sec 167(3)(a) of the 1996 Constitution.
32 Until its amendment by the Constitution Seventeenth Amendment Act of 2012, sec 168(3) of the 1996 Constitution described the Supreme Court of Appeal as “the highest court of appeal except in constitutional matters”. Today the Constitutional Court is the highest court in all matters, while (despite its name) the Supreme Court of Appeal is an intermediate court of appeal.
33 Interim Constitution, sec 101(5).
34 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA 771 (SCA), para 20.
35 Pharmaceutical Manufacturers Association, above at note 24, para 44.
36 Id, para 45; see further Bato Star, above at note 24, para 22.
37 Sidestepping or avoiding the PAJA is discussed further under “The growth of the principle of legality as a general alternative pathway to review” below.
38 Odunga J in Republic v Director of Public Prosecution Ex Parte Chamanlal Vrajlal Kamani [2015] eKLR (18 September 2015), para 156. See also for example the approach of the same judge in Khobesh Agencies Limited v Minister for Foreign Affairs and International Relations [2013] eKLR (23 April 2013), paras 31 and 32.
39 Republic v Kenya Revenue Authority Ex Parte Funan Construction Ltd [2016] eKLR (1 March 2016) (Funan Construction), from para 36.
40 Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR (29 September 2014) (CCK), paras 359–60 and 403–04 in the judgment of Rawal DCJ.
41 Suchan Investment, above at note 25, para 53, although without specific reference to Pharmaceutical Manufacturers Association, above at note 24, or to Bato Star, above at note 24. In Bato Star O'Regan J said (para 22): “The Courts’ power to review administrative action no longer flows directly from the common law but from the PAJA and the Constitution itself.”
42 This term is used, for instance, by Odunga J in Michael Mungai v Attorney General [2015] eKLR (18 February 2015), para 6.
43 L Mwangi “Judicial review in Kenya: De-clouding the illusion further” (28 June 2016), available at: <http://www.thealchemyofatransformativeconstitution.wordpress.com> (last accessed 9 November 2017).
44 Terer, L “The jurisprudence of Dr Willy Mutunga: Kenya's 14th chief justice” (2016) 33 Kenya Law Bench Bulletin 1Google Scholar at 6.
45 JT Gathii “The incomplete transformation of judicial review” (paper presented at the Annual Judges’ Conference, Nairobi, 19 August 2014), referred to with approval in CCK, above at note 40, para 361.
46 Some of the landmark cases in this regard were: Nel v Le Roux NO 1996 (3) SA 562 (CC), relating to judicial action; Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), concerning legislative action (Fedsure); and President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) on executive action (SARFU).
47 See Hoexter “The constitutionalization and codification”, above at note 26 at 50 and Hoexter Administrative Law, above at note 16 at 174.
48 C Hoexter “Administrative justice: Not entirely according to plan” (2011) IV Diritto Pubblico Comparato ed Europeo 1428 at 1432.
49 SARFU, above at note 46, para 143.
50 See above at note 22.
51 See for example C Lange and J Wessels (eds) The Right to Know: South Africa's Promotion of Administrative Justice and Access to Information Acts (2004, Siber Ink); Currie The Promotion of Administrative Justice Act, above at note 20, chaps 4, 5 and 6; J de Ville Judicial Review of Administrative Action in South Africa (rev ed, 2005, LexisNexis Butterworths), chaps 5 and 6; G Quinot (ed) Administrative Justice in South Africa: An Introduction (2015, Oxford University Press), chap 6.
52 Dudley “Grounds for judicial review”, above at note 19.
53 Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), para 48.
54 See Hoexter Administrative Law, above at note 16 at 341–43.
55 Id at 310–11.
56 Wallis AJA in Offit Enterprises (Pty) Ltd v Coega Development Corporation 2010 (4) SA 242 (SCA), para 43.
57 However, once a decision has been made to hold a public inquiry or follow a notice-and-comment procedure, the administrator is bound by the requirements of the PAJA and the regulations made under the statute.
58 After the standard laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
59 In Bato Star, above at note 24, para 44, sec 6(2)(h) was interpreted in conformity with sec 33(1) of the 1996 Constitution. The court held that the standard set by sec 6(2)(h) is reasonableness and that the ground is not directed at an exaggerated form of unreasonableness.
60 In Brümmer v Minister for Social Development 2009 (6) SA 323 (CC), para 76, the court used sec 7(1) of the PAJA as an example of “an adequate and fair opportunity to seek judicial redress”; see also paras 67–68 of the unanimous judgment. Previously the same court had struck down comparable limitation clauses as unconstitutional in cases such as Mohlomi v Minister of Defence 1997 (1) SA 124 (CC).
61 See for example M Gainer “Transforming the courts: Judicial sector reforms in Kenya, 2011–2015” Innovations for Successful Societies (a joint programme of Princeton University's Woodrow Wilson School of Public & International Affairs and the Bobst Center for Peace & Justice), available at: <https://successfulsocieties.princeton.edu/publications/transforming-courts-judicial-sector-reforms-kenya> (last accessed 9 November 2017).
62 Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
63 Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC), paras 36–38.
64 See for example the judgment of the Kenyan Court of Appeal in Republic v National Environmental Management Authority [2011] eKLR (15 July 2011).
65 Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) (Grey's Marine), para 21.
66 It was largely borrowed from sec 3 of the Administrative Decisions (Judicial Review) Act of 1977 (Cth).
67 PAJA, sec 1.
68 Ibid.
69 Federal Law of Administrative Procedure, 1976, sec 35.
70 As pointed out by Nugent JA in Grey's Marine, above at note 65, para 22.
71 PAJA, sec 1(b)(aa)–(ii).
72 C Hoexter “‘Administrative action’ in the courts” 2006 Acta Juridica 303 at 309.
73 See id at 306–07 on this problematic requirement. Another problem was that, on the face of it, that requirement conflicted with sec 3 of the act, whose application depended on an adversely affected right or a legitimate expectation (something less than a right). In other words, action to which the PAJA did not even apply apparently had to be procedurally fair. This tension was eventually resolved by the Constitutional Court in Walele v City of Cape Town 2008 (6) SA 129 (CC), where it held (para 37) that administrative action has an expanded meaning in the context of sec 3.
74 Hoexter “‘Administrative action’”, above at note 72 from 309.
75 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) (New Clicks). In recent years other courts have simply assumed that the question was decided by a majority of the court in New Clicks: see Hoexter Administrative Law, above at note 16 at 200–01.
76 Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) (Albutt).
77 Grey's Marine, above at note 65, para 23.
78 See for example Kiva v Minister of Correctional Services (2007) 28 ILJ 597 (E) and Minister of Defence v Dunn 2007 (6) SA 52 (SCA). Since then, however, the Constitutional Court has ruled (for reasons of policy) that employment-related matters are generally not administrative action within the meaning of the PAJA: Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC), para 64.
79 Oosthuizen's Transport (Pty) Ltd v MEC, Road Traffic Matters, Mpumalanga 2008 (2) SA 570 (T), para 30.
80 As recognized in Bato Star, above at note 24, para 25 and New Clicks, above at note 75, para 95.
81 Sang “The right to fair administrative action”, above at note 1 at 104, specifically warned against the dangers of a complicated definition based on South Africa's experience.
82 Dudley “Grounds for judicial review”, above at note 19.
83 Ibid.
84 Since the seminal decision in Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5) SA 574 (KZP), the phrase has been used particularly to distinguish administrative action from conduct of an “executive” nature. See for example Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa 2013 (7) BCLR 762 (CC) (ARMSA) and Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC) (Motau).
85 See the text to note 45 above.
86 For more on these two pathways see Hoexter Administrative Law, above at note 16 at 120–21 and 127–28.
87 Fedsure, above at note 46, paras 56–59.
88 Id, para 58.
89 SARFU, above at note 46, para 148.
90 Pharmaceutical Manufacturers Association, above at note 24, paras 85 and 90.
91 Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA). The first case to apply the ground under the PAJA itself was Chairpersons’ Association v Minister of Arts and Culture 2007 (5) SA 236 (SCA).
92 Albutt, above at note 76.
93 Motau, above at note 84, paras 81–83.
94 Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA).
95 See, for example, Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC); and Kohn, L “The burgeoning constitutional requirement of rationality and the separation of powers: Has rationality gone too far?” (2013) 130 South African Law Journal 810Google Scholar at 833–35.
96 See New Clicks, above at note 75, paras 95–96 and 118.
97 A thorough exposition of the principle is contained in the minority judgment of Cameron J in My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC), paras 44–66.
98 Especially since New Clicks, above at note 75, particularly paras 95–96.
99 As stated for instance in Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), para 73.
100 In Fedsure, above at note 46, para 59, the court described the principle of legality as the more general counterpart of the right to lawful administrative action in sec 33(1) of the 1996 Constitution.
101 For examples see Hoexter Administrative Law, above at note 16 at 133–37.
102 Above at note 76.
103 Id, para 80.
104 Id, paras 81–82.
105 See further Hoexter Administrative Law, above at note 16 at 136–37.
106 Motau, above at note 84, para 27, note 28.
107 Post-Motau examples include: Minister of Education, Western Cape v Beauvallon Secondary School 2015 (2) SA 154 (SCA); Gidani (Pty) Ltd v Minister of Trade and Industry [2015] ZAGPPHC 457 (4 July 2015); and Booysen v National Head of the Directorate for Priority Crime Investigation [2015] ZAKZHC 86 (18 November 2015).
108 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA).
109 Id, para 35.
110 Id, para 37.
111 Id, para 38.
112 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40 (14 November 2017).
113 Id, paras 29 and 32–38.
114 Dudley “Grounds for judicial review”, above at note 19.
115 See for example, Funan Construction, above at note 39, para 42; and see generally Khobe, W “Reasonableness is not Wednesbury reasonableness! Righting wrongs in Kenya's administrative law jurisprudence” (2016) 17 Platform for Law, Justice & Society 54Google Scholar.
116 Mwangi “Judicial review in Kenya”, above at note 43.
117 Terer “The jurisprudence”, above at note 44 at 6. For criticism of “unthinking deference” and “stereotyped recourse” to common law interpretive methods, see CCK, above at note 40, para 358 and Judges & Magistrates Vetting Board v Centre for Human Rights and Democracy [2014] eKLR (5 November 2014), para 206.
118 CCK, id, paras 359–60 and 403–04.
119 Above at note 25, para 53.
120 Hoexter “The constitutionalization and codification”, above at note 26 at 60.
121 I Currie “What difference does the Promotion of Administrative Justice Act make to administrative law?” 2006 Acta Juridica 325 at 325.
122 See Terer “The jurisprudence”, above at note 44 at 6.
123 See further OJ Dudley “The Constitution of Kenya 2010 and judicial review: Why the Odumbe case would be decided differently today” (28 January 2015), available at: <http://kenyalaw.org/kenyalawblog/the-constitution-of-kenya-2010-and-judicial-review-odumbe-case/> (last accessed 5 December 2017).
124 Sec 7(2)(a)(iv) and (v), sec 7(2)(c), (m) and (n), in addition to any overlap with grounds such as those in sec 7(2)(b) and (j).