News

By Nyakundi Nyamboga

The petitioners, under investigation in relation to the Anglo Leasing scam, were aggrieved by the cancellation of their passports on March 30 last year. The petitioners claim they had left the country for India on January 2006. Deepak claims he had "willingly" recorded statements with Kenya Anti-Corruption Commission (KACC) on May 6, 2004 and May 9, 2005, but no charges were preferred against him. However, Rashmi had never been requested to record statements.

Early this year, they moved the Constitutional Court for several orders and declarations, among them the annulment of the cancellation of their passports. They claimed their Constitutional rights to personal liberty and movement had been violated when the Principal Immigration Officer, at the behest of KACC, cancelled the passports.

KACC had invoked Section 31 of the Kenya Anti-Corruption and Economic Crimes Act, moved a magistrate’s court in the absence of the petitioners and obtained an order requiring the Principal Immigration officer to cancel the passports as it continued with investigation into the Anglo Leasing scam. Under the section KACC could obtain orders ex-parte requiring a person to surrender his passport if he was reasonably suspected of corruption or an economic crime. They could also detain the surrendered passport indefinitely, pending conclusion of investigation.

Power to cancel passports

Through lawyer Fred Ngatia, the petitioners sought a declaration that the cancellation of their passports was unconstitutional for want of an opportunity to be heard before the decision was taken. It was the lawyer’s contention that the proceedings in the magistrate’s court at Kibera were "criminal in nature and should therefore be compliant with the relevant provisions of the Constitution".

The petitioners sought a declaration that section 31 of the Kenya Anti-Corruption and Economic Crimes Act (Act No 3/2003), which allows ex-parte criminal proceedings, was inconsistent with sections 72 and 81 of the Constitution and therefore were null and void. The lawyer submitted that the two sections demand a due process of law, under each provision, before any limitation or deprivation could take place.

They also sought a declaration that the Principal Immigration Officer does not possess unbridled discretion to cancel and invalidate their passports. The Immigration Act does not empower him to do so. The Attorney General’s principal assistant, the Director of Public Prosecutions, Mr Keriako Tobiko, opposed the claims on behalf of the Principal Immigration Officer and the Chief Magistrate’s court, Kibera.

Ex-parte orders issued in public interest

In his submissions, Tobiko noted there was no statute governing the issuance or cancellation of passports.

He argued the issuance and withdrawal of passports "is the prerogative of the President and it is open to the minister responsible to decide whether or not to accept a request for a passport". Being purely the exercise of the presidential prerogative, a decision not to issue or withdraw is not subject to judicial review.

He said ex-parte orders issued in the course of and to assist the conduct of investigations are a common phenomena in our criminal jurisprudence and in the jurisprudence of other civilised and democratic institutions "and such orders are issued in the public interest to ensure speedy and effective detection, prevention, investigation and punishment of crime and for the common good of society". The court heard Immigration authorities have power to refuse to issue or revoke or cancel a passport, but such power is not unbridled and must be exercised judiciously.

The DPP said Section 31 was constitutional, valid and effectual "since it accords with due process, is reasonable, rational and proportional and serves a legitimate objective". The right to freedom of movement is not absolute and is subject to limitations in sections 70 and 81(3). He dismissed as speculative the petitioners’ claim that they could not expect a fair trial in the light of pervasive publicity.

The KACC on its part submitted that the petitioners were reasonably suspected to have committed a corruption or economic crime. It is in the public interest to act with speed during the investigation stage "and ex-parte orders is a way of achieving this and the rules of natural justice are adequately met by any hearing under Section 31 of Act No 3 of 2003". It was in order to publish their posters and put bounty on their heads because they had left the Kenyan jurisdiction.

Executive has no business limiting liberty

And what was the three-judge Bench’s take of these submissions by counsel and the parties? The petitioners here are entitled to the full protection of sections 72 and 81 of the Constitution.

The Executive has no business limiting the suspects’ liberty indefinitely by using the lower court or any other court. Asking them to report to court every eight days, while still uncharged is relegating them to prisoners. The business of the Executive is to conclude the investigations and speedily charge the suspects in court and thereafter it is for the court to proceed as per the Constitution.

The extracted order of the lower court runs counter to the specific provisions of section 72 and 81 and for this reason we hold that it is unconstitutional and void they were held. The court quashed the letter of cancellation of the passports, terming it unconstitutional. It also declared Section 31 of the Anti-Corruption and Economic Crimes Act unconstitutional, null and void.

The judges issued an order restraining the Principal Immigration Officer from interfering with the petitioners’ passports and their right to enter and leave Kenya. Said the judges: "Where a right is threatened with curtailment, restriction or limitation, there must be due process."

A court order limiting one’s liberty and movement would be valid if it was issued in consequence of the person "having been found guilty of a criminal offence and for the purpose of ensuring he appears to stand trial or for pre-trial proceedings relating to his extradition or lawful removal". Seizure or cancellation was Constitutional if it was done "in the interests of defence, public safety, public order, public morality, public health or the protection or control of nomadic peoples and any such provision or the thing done under the authority thereof, must reasonably be justifiable in a democratic society".

The court said it would be an affront to all known human rights norms were the right to freedom of exit specifically guaranteed by the Constitution be drained of all effect by arrogating to the Government a discretionary and almost arbitrary power to withhold, withdraw or revoke a passport. The judges said Section 31 was also unconstitutional in donating judicial power to the Executive to impose conditions concerning the release of passports since this is a judicial function under the Section 72(5) of the Constitution.

We hold that since there are no constitutional limitations under Section 72(5), the provisions of Section 31 requiring the passport holder to be detained and brought to court every eight days violates the Constitution. "While we salute the DPP’s concern for the wider picture and the implications of a judgement such as this, we are of course, quite clear in our minds that the necessary constitutional and statutory changes should have been done years before the bolting of the horse," said the judges.

The Executive cannot ask the court to take a wider view of the public interest than what is reflected in the Constitution at any given time, in respect of anything that impacts on fundamental rights. They added: "We think that detection, prevention, control and punishment of corruption and economic crimes is a pressing social need, but its recognition as such must be incorporated in the Constitution. It is outside the public interest categories."