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Horizontal Application of Constitutional Rights in Kenya: A Comparative Critique of the Emerging Jurisprudence

Document Cited in Related
Vincent
Published date01 February 2018
DOI10.3366/ajicl.2018.0217
Date01 February 2018
Pages1-27
Author

This Constitution [of Kenya, 2010] is the supreme law of the Republic and binds all persons and all State organs at both levels of government.1

 INTRODUCTION

In August 2010, the Republic of Kenya adopted a new constitution following a national referendum in which the majority of Kenyans endorsed the proposed draft.2 The formal promulgation of the Constitution of Kenya 2010 sought to signify transition to an era of rational, limited and democratic governance. In contrast with its predecessor, the 2010 Constitution explicitly states that the fundamental rights in the Bill of Rights apply to all law and bind all state organs and all persons.3 This, unlike the case in the repealed Constitution,4 provides a much firmer legal basis for the extensive permeation of human rights into the private sphere of relations between private persons.5 The extension of the reach of constitutionalised human rights into the private sphere has expanded the scope of conduct that is subject to constitutional scrutiny.6 Certain conduct that was hitherto the exclusive province of private law can now be the subject of a constitutional action for redress in relation to a violation of fundamental rights. Hence, the 2010 Constitution effectively privatises the constitutionalised human rights and this should, in theory at least, improve the prospects for the advancement of human rights norms.

It is now six years since Kenyans adopted the 2010 Constitution, and this presents a good opportunity to take stock of the extent to which the privatisation of constitutional human rights has enhanced their enforceability. This article discusses the legal effect of this privatisation of human rights in Kenya by reviewing recent judicial decisions from Kenyan courts. It critiques the contribution of emerging case law to the clarification of the concept of horizontal application and the development of a coherent approach to its applicability in the Kenyan context. The central question is whether any guidance can be inferred from the case law on three specific areas: threshold of horizontal application; limitation and balancing of rights; and constitutional and non-constitutional remedies. Both the merits and shortfalls of the emerging Kenyan jurisprudence are singled out by juxtaposing Kenyan case law with judicial approaches in comparable jurisdictions where similar fact-pattern cases have been adjudicated. It is on the basis of this comparative analysis of case law that the article proposes how best the gains made by Kenyan courts in relation to the horizontal application of constitutional rights can be consolidated and the missteps avoided or, at least, their effects minimised.

 THE PRIVATISATION OF HUMAN RIGHTS IN A CONSTITUTIONAL LAW CONTEXT Privatisation of Human Rights and Horizontal Application

It is often asked whether fundamental rights only apply vertically between the state and private persons, or whether they are also capable of horizontal application between private persons.7 This question is important because it reflects a significant development in legal theory: the diminishing public-private law divide.8 The traditional view was that fundamental rights such as those typically protected in bills of rights applied exclusively in the context of public legal relations between the state and its subjects.9 Writing in 1787, Thomas Jefferson, one of the leading lights in American constitutional thought, opined that ‘a bill of rights is what the people are entitled to against every government on earth.’10 This view reflected the liberal theory that constitutional rights are negative liberties that apply vertically to constrain the state's power vis-à-vis its subjects.11

Gradually, however, it was realised that a comparable degree of power and influence previously thought to be the preserve of public authorities was held in private hands, particularly by juristic persons. Private actors were becoming just as capable as, or in other cases more capable than,12 the state of violations of fundamental rights.13 This, therefore, demanded a reconsideration of earlier presumptions to effectively respond to a contemporary and pressing concern: the need to hold non-state actors accountable for violations of fundamental rights under both national and international law.14 Rights could no longer be understood as affecting only the relations between the state and the individual, but also had to be re-imagined in order to apply, at least in some way, to the relations between private persons.15

The shift of intrusive power from the state to private persons required a legal basis to hold private persons accountable for violations of constitutional rights because their conduct was previously thought to be exclusively governed by private law.16 Horizontal application, which recognises the enforceability of fundamental rights between private persons in the context of private relations, was devised as a doctrinal tool to fill the gap. This was achieved by recognising the horizontal effect of rights, ‘where “horizontal” as opposed to “vertical” indicates that rights operate between private persons.’17 Rights in general and constitutional rights in particular were recast as legal guarantees that could be enforced against both the state and private persons.18 As a result, the significance previously accorded the public-private law divide became less relevant in the context of enforcing constitutional rights. Also, the resulting concept of horizontal application of fundamental rights transcends the positive-negative obligations distinction that had so characterised earlier rights discourse.19 In contrast to the earlier case where the state only had negative obligations, horizontal application envisaged a broader scheme where ‘the state is under a positive obligation to ensure that private persons do not violate other private persons’ rights. Alternatively, it can be seen as its own category which gives effect to constitutional rights between private persons.’20

 Horizontal Application in the Constitutional Law Context

Constitutions are typically the repositories of all the fundamental rights and freedoms to which all persons are entitled, as well as the duties required of them.21 They also outline the scheme of application which clarifies the identity of specific right-holders and duty-bearers, and the nature and extent of the legal obligations imposed by the constitutional rights. The language of rights and duties is useful in providing conceptual clarity to the notion of horizontal application in the context of constitutional law because it identifies persons to whom constitutional entitlements are conferred as beneficiaries of rights and also determines upon whom the duties imposed by those rights fall.22 It thus follows that whenever the enjoyment by a beneficiary of a constitutional right is curtailed, it may result in legal action by the right-holder to vindicate that right against the duty-bearer.23 When the resulting legal action triggers the operation of constitutional rights or norms to resolve the dispute, it is described as application of the right in question.

Determining when, how and which rights can be enforced against private persons is a critical question in the horizontal application of constitutional rights. While relatively clear answers are provided in the constitutions or legislation of some jurisdictions, most jurisdictions leave this question unanswered.24 Nonetheless, two models of horizontal application can be identified: direct application and indirect application.25 According to the direct horizontal application model, constitutional rights can be applied directly to disputes between private persons and the definition and vindication of those rights are independent of the doctrines and operation of private law.26 In the indirect horizontal application model, constitutional rights resolve legal disputes by influencing the proper interpretation or development of the pertinent private law (statute law, the common law or customary law) with reference to certain objective constitutional values.27 The main difference between the direct and indirect models is that constitutional norms operate as prescriptive rules in the former but only as objective values in the latter. Comments have, however, been made to the effect that the above distinction is merely one of form because, as a matter of substantive law, the resulting effects of either direct or indirect horizontal application are similar.28

 THE JURIDICAL EXPERIENCE OF HORIZONTAL APPLICATION OF CONSTITUTIONAL RIGHTS IN KENYA

The experience of horizontal application of constitutional rights in Kenya can best be appreciated by comparing two distinct periods in the nation's constitutional history: the pre-2010 Constitution period and the current period. The pre-2010 Constitution period was characterised by the limited avenues for enforcing constitutional rights stipulated in the repealed Constitution.29 Thus the 2010 Constitution resulted from dogged efforts to expand the scope and bolster the protection of human rights in Kenya. In the following, the specific approaches adopted by Kenyan courts towards the horizontal application of constitutional rights in the respective periods are discussed.

The Restrictive Pre-2010 Constitution Judicial Position

The absence in the repealed Constitution of an express provision on the possibility of enforcing fundamental rights against a private person limited the horizontal application of constitutional rights.30 Courts mainly held the view that constitutional rights could only be enforced against the state, and therefore such rights did not apply to private relations.31 This can be illustrated by Kenya Bus Service Ltd v. Attorney General and Others,32 where a juristic person sought to enforce its constitutional rights against the state and private persons. On the authority of case law from the Republic of Kiribati,33 Nyamu J held that...

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