State decisions made in confines of boardrooms are not binding in law

David Oloo Onyango was serving a five-year sentence in Kamiti Main Prison. He had a right under the law to have his prison sentence reduced by one third if he was of good conduct in prison. The Commissioner of Prisons denied Oloo this right.

Oloo moved to the High Court to challenge the decision of the Commissioner of Prisons. The High Court dismissed his challenge. His advocate, then a leading human rights defender, now Governor Kiraitu Murungi moved to the Court of Appeal. The main challenge to the decision of the Commissioner of Prisons was that it was made in violation of the Rules of Natural Justice. That is, the Commissioner of Prisons did not notify Oloo in writing of his intended action and he did not give Oloo an opportunity to defend himself.

The Court of Appeal agreed with Oloo. It reversed the decision of the Commissioner of Prisons. It held that the Commissioner had acted unfairly as he had not given Oloo written notice of his intended decision. The Commissioner did not give Oloo an opportunity defend himself.

The Court of Appeal made a more far reaching determination in Oloo’s case. It decided that it did not matter whether or not the Commissioner’s decision was right or wrong. So long as the Commissioner’s decision was made without giving Oloo the right to a fair hearing the decision was unfair. So long as Oloo was not given the right to a fair hearing the decision was wrong.

Evidence against him

Was Miguna Miguna given written notice of and the reasons for the decision to deport him?  Was he informed of his right to defend himself, to have a legal representative present and to cross examine the witnesses against him and the evidence mounted against him? If this was not done it does not matter whether or not he is Kenyan or Canadian or both. It does not matter whether he lost or renounced his Kenyan citizenship. It does not matter whether or not he acquired his Kenyan passport and identity card wrongly. So long as the decision of the state was made in the confines of State boardrooms in the absence of Miguna Miguna it was unfair. It was wrong. The wisdom of the Court of Appeal in the case of Oloo’s case was embraced by Kenyans on August 27, 2010 in Article 47 of the Constitution. Article 47 of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. It also provides that every person has the right to be given written reasons for any administrative action that is taken against him.

Following the footsteps of the people of Kenya, Parliament enacted the Fair Administrative Action Act that repeats word for word the provisions of Article 47 of the Constitution at Section 4.   

Section 4 of the Fair Administrative Action Act goes much further than repeating the constitutional provisions. It provides that where administrative action is likely to adversely affect the rights and freedoms of any person, the public official must give written notice of his intended action and the reasons for that action. The public official must give the affected person an opportunity to be heard, the right to have legal representation present, the right to cross-examine any witnesses who give evidence against him, the right to challenge any evidence presented against him, and the right to ask for the proceedings to be postponed in order to adequately prepare.

The Fair Administrative Action Act requires that there must be an avenue for appeal against or review of the decision of the public official, and this avenue must be made known to the affected person.

There is no amount of chest thumping that can rewrite the Constitution or the Law. Bring back Miguna Miguna!

- The writer is an Advocate of the High Court of Kenya. [email protected]