Let public interest litigation work for weak
Public interest litigation, as a practice to make law, policy and systems work for all, should unite the voice of the civil society.
We should focus on building consensus over a framework that streamlines public interest litigation.
Similarly, the courts have the discretion to decide what is frivolous, petty or time- and resource-wasting for its own relevance.
Would it matter who moves to court on an issue that affects the interests, rights or positions of the marginalised? Should that be so, then a framework defining such persons needs to be in place to promote and protect justice.
Such a scheme, however, will bind us to legal slavery, yet we resisted when the Constitution was promulgated in 2010.
We contested the practice where taking matters to court was reserved for a few (locus standi), especially those aggrieved by unilateral decisions of leadership. We rebelled against supporters of the Wangari Maathai vs Kenya Times Media Trust Limited holding, that only privileged the Attorney-General. So, what should be public interest litigation?
Various commentators and judges in diverse jurisdictions have provided interesting definitions. The Supreme Court of India defined it as “the name recently given to efforts to provide legal representation to previously unrepresented groups and interests”.
Legal commentator Manas Ranjan argues that it is a non-conventional approach to improve access to justice for the disadvantaged members of the society.
The two concepts speak to two very important aspects of access to justice. First, is the channel, agency or institution through which public interest litigation is manifested; second is the constituency that the public interest litigation carries with it whenever applied.
The first speaks to public interest litigation as a protest against legal marketplaces that seem inadequate and unconcerned with oppressive tendencies of institutions and leaders.
The second looks at it as an advocacy that utilises legal, technical and procedural constraints to procure justice, especially social justice to the many inhibited and unable to bring a claim to court on account of personal deficiency, poverty or state oppression.
Even as the Law Society of Kenya — as shown in the story, LSK seeks firm grip on public interest cases (DN, Dec. 25, 2018) — decries the apparent misuse of public interest litigation by “busybodies”, the situation of under-representation and exclusion does not dissolve.
Public interest litigation, as a practice to make law, policy and systems work for all, should unite the voice of the civil society, to which LSK belongs.
Several such cases can attest to that: The matter taken to court by Apollo Mboya to have Kenya Power and the Energy Regulation Commission stopped from implementing pricing tariff; the matter by Okiya Omtatah opposing the new fuel tax; and Adrian Kamotho’s case on bar exams by Kenya School of Law. All matters address themselves to the rights of the poor and underprivileged.
Methinks we should focus on building consensus over a framework that streamlines public interest litigation. But there should be unity of purpose and conviction to correct wrongs.
Kenyans are protected by Articles 27 and 28 of the Constitution. Similarly, the courts have the discretion to decide what is frivolous, petty or time- and resource-wasting for its own relevance. We must not allow supremacy wars to leave the marginalised less protected and exposed to exploitation.
Mr Mukoya is the executive director, Legal Resources Foundation Trust. [email protected]