Council
of Governors vs Inspector General of National Police Service & 3
others
Petition 298 of 2014
High Court of Kenya
Constitutional and Human Rights Division
Justice Isaac Lenaola
September 11, 2015
When the governors were sworn into office on March 27, 2013, the Transition Authority allowed them to fly the national flag on their official cars.This privilege was, however, revoked the following year by the National Flag, Emblems and Names (Amendment) Act 2014.
Upset, the Council of Governors went to court on July 2, 2014 to challenge the Act’s constitutionality.
They said the flag is a symbol of Kenya and unites the people by creating visual, verbal or iconic representations of the national values, goals or history.
The governors said the flag reflects the independence and autonomy of a state and is designed to be inclusive and representative of all the people of the national community.
In that regard, they said, the national government cannot give itself exclusive powers to determine the use of the flag.
The governors challenged section 4A of the Act which only allows the President, Deputy President, Chief Justice and the speakers of the National Assembly and Senate to fly the national flag on their cars.
They told the court that the Act goes against the letter and spirit of the constitution’s provisions on devolution and national values.
The county bosses said section 4A also violates their constitutional right to freedom of expression.
The governors wanted the court to declare the section unconstitutional. The council also wanted a permanent injunction to block the police Inspector General and the Director of Public Prosecutions from investigating governors and criminal cases against them for breaching section 4A.
The main issues the governors raised in their petition were:
Whether section 4A contravened certain constitutional provisions
Whether the National Flag, Emblems and Names (Amendment) Act 2014 was a Bill concerning
the counties within the meaning of article 110 of the constitution and that without the participation of the Senate it was rendered unconstitutional.
The constitution guarantees all persons the right to sue on the ground that
the constitution has been or is threatened with contravention.
The Council of Governors was established under section 19(1) of the Intergovernmental Relations Act as a body that consisted of governors of the 47 counties; as such the council is a body of persons and therefore has the requisite right to institute a claim for alleged violation of the constitution.
Justice Isaac Lenaola said although the Constitution of Kenya (Enforcement of Fundamental Rights and Freedoms) Practice and Procedure Rules 2013 do not strictly require formal pleadings, the council pleaded its case with reasonable precision.
Hence the petition set out the legal foundation, facts, the manner in which the constitution had been violated and the remedies sought from the court.
Lenaola said there is a general presumption that every Act of Parliament is constitutional and the burden of proof lies with those who say otherwise.
“The role of the court is not to interrogate the wisdom of enacted laws. The courts cannot act as ‘regents’ over what is done in Parliament because such an authority does not exist,” he said.
The only power the court has is the power of judgment. The court neither approves nor condemns any legislative policy.
Lenaola said in examining whether a statutory provision is unconstitutional the court should regard its purpose and its effect.
Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect could invalidate legislation.
An object the legislature intended to achieve animated all legislation. That object was realised through the impact produced by the operation and application of the legislation.
Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, were clearly linked, if not indivisible. Intended and achieved effects had been looked to for guidance in assessing the legislation’s object and thus the validity.
The judge said the national government had not unlawfully and exclusively appropriated the use of the flag to itself.
It was within the mandate of Parliament to enact a law that governed the use of the flag as an important national symbol.
Section 4A did not negate the use of the flag as a symbol often waved around as part of celebrations of patriotism and
which is representative of all the people of Kenya.
There was no need to question the wisdom and reasons Parliament restricted use of the National Flag by state officers and mere displeasure by governors is not reason enough to change the law.
Lenaola held that equality does not mean that every law has to have universal application to people who are not by nature, attainment or circumstances in the same position, and the varied needs of different classes of persons required special treatment. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. The amendment did not limit the use of the national flag to the national government only to the exclusion of the county governments, but merely limited the flying of the flag to certain state officers and not specifically to the exclusion of governors.
The amendment did not violate the governors’ freedom of expression.
The Act did not prohibit the county governments from flying the national flag nor did it make the use of the national flag in the counties unlawful.
Section 4 of the County Governments Act mandated the counties to develop their own symbols, including flags, hence the National Assembly promoted the principle of distinctness and independence counties in forging their own identity.
Parliament also promoted the freedom of expression of the counties as well as their uniqueness, creativity and purpose. The flag law amendment was not unconstitutional to that extent and it did not violate the freedom of expression in that context. The county governments cannot enact laws that allow governors to fly the national flag on their cars as such an action would in essence defeat the purpose of the National Flag, Emblems and Names (Amendment) Act.
The constitution did not assign the enactment of legislation on national symbols to any of the two levels of government. However, Article 186 (3) is clear that a function not assigned specifically to a county is a function of the national government.
Lenaola said according to procedure, the speakers of both national Houses have to classify Bills under Article 110 for them to have input from the county governments.
The speakers have to essentially resolve whether and to what extent the provisions of a particular Bill affect the interests of county governments and consequently whether county input ought to be invited. It is not a matter within the functions of a county government as provided for under the Fourth and Sixth Schedule to the constitution.
In conclusion, Lenaola held that the national flag is one of the symbols of the Republic of Kenya under Article 9(a) of the constitution.
“In other jurisdictions like the US, the flag is openly waved, raised and allowed to fly and flutter in the wind in any place at any time. The Kenyan National Assembly in its wisdom has limited the flag’s use on cars and thus the court was unable to invalidate that decision.”
The petition was dismissed.
Reported by Phoebe Ayaya. Read the full judgment at http://kenyalaw.org/caselaw/cases/
