Two court decisions promise to up protection of human rights

 

The Judiciary building that houses the High Court. [File, Standard]

This week the High Court handed over two impactful decisions on distinct, but related issues, which will have far-reaching effects on human rights.

The first dealt with broader civil rights while the second dealt with rights at a more personal level. In the first case brought by the Kenya Human Rights Commission and others against then Inspector General Japhet Koome and others, the Court reiterated a principle that has been part of the common law and tacitly endorsed in other cases including the Baby Pendo case in 2018.

The decision of the Court arose out of actions taken by the former Inspector General in suspending Articles 36, 37 and 41 of the Constitution thus permitting the police to curtail actions of members of the Kenya Medical Practitioners and Dentists Union who were undertaking lawful strike action. During the violent stoppage of the protests by the police, several of the Union officials were injured thus giving rise to the case.

Firstly, the court determined that the Inspector General did not have a lawful basis for his action of suspending constitutional protections and quashed the decisions. Most importantly, the court analysed the concept of command responsibility and its implications. The court found that the Constitution and the National Police Service Act had allocated independent command of the police to the IG exclusively.

Consequently, the Court determined that where in the exercise of these constitutional powers the Inspector General directly or indirectly directed and issued unconstitutional orders and directives to officers under his command to use unlawful force to disperse peaceable and unarmed strikes, assemblies, protests, and pickets, of persons exercising rights which were protected by the Constitution, he would thereby be accountable and personally liable for the acts or omissions of officers under his command. In the court’s words, the buck stopped with him.

This case has far-reaching implications on the exercise of constitutional powers by officials. It places a huge responsibility on public officials to assess the import of their decisions on citizens and recognise that even where they were not personally involved in the tortious or criminal acts, they will personally shoulder the liability if the wrongful actions were carried out under their command.

The court rejected the protections against liability provided in the Police Act, contending that such blanket protections offended the Constitution. Since culpability may be determined long after an official has left office and no longer benefits from the political protections that accompany such office, it can have devastating implications on officials even into retirement.

The second case relates to the declaration of unconstitutionality of Section 226 of the Penal Code which had made attempted suicide a criminal offence. The case was brought by the Kenya National Commission of Human Rights and the Kenya Psychiatric Association. They argued that criminalising attempted suicide was tantamount to punishing persons suffering from mental disability and thereby breaching several constitutional protections including the right to mental health, protection of persons with disability, and right to human dignity. 

The High Court determined that most persons committing suicide were suffering from mental related illnesses and should not be punished for committing acts related to their disability. The criminalisation of attempted suicide has historically been controversial, supported by persons who argue about the sanctity of human life, but often blamed for keeping mentally ill people in the shadows and stopping them from seeking treatment for fear of being hauled to jail if they had tried to take their lives.

In the words of the Court, what such persons needed was a hospital bed, not a jail cell. This judgement will play an important role in the destigmatisation of mental illness and ensuring people suffering from mental illness get the attention they need.

These two human rights decisions are a worthy send-off to the illustrious Chair of the Kenya National Commission of Human Rights Roseline Odede who passed away a week ago. The decisions affirm the sterling role played by the Judiciary in giving life to the Constitution and enabling Kenya to join other progressive jurisdictions in protecting critical human and civil rights.

The writer is an advocate of the High Court