Summons shows courts are ready to hold powerful officials accountable

Sometime last year, the Transport Cabinet Secretary published the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations of 2013.

These Regulations were published in the Kenya Gazette as legal Notice No. 219 of 2013.

The regulations were a response to the high rate of road traffic accidents and aimed to control speed, manner and the time during which public service vehicles would operate while ferrying passengers for long distances.

These regulations were challenged by operators of the public service vehicles, including their association, the Kenya Country Bus Association.

They contended, among others, that the prohibition against night travel for public service vehicles was unreasonable and lacked any objective basis.

Therefore, they argued, the regulations stood to interfere with the general freedom of movement of citizens, contrary to the Constitution.

A central but procedural attack on the validity of the rules was based on the fact that the Cabinet Secretary published them in the Kenya Gazette and sought to enforce them without adherence to the Statutory Instruments Act.

Identical regulations

This Act requires that any such regulations must be placed before Parliament for approval.

It would appear that in response to this absence of Parliamentary approval, the Cabinet Secretary revoked them in March, 2014 and substituted them with a fresh set of identical regulations.

This revocation of the 2013 regulations and their simultaneous replacement with the 2014 rules were undertaken close to the date on which the court had originally scheduled to deliver its decision on the operators’ case against the 2013 regulations.

Thus on March 14, the court delivered a decision relating to the 2013 regulations unaware that they had been revoked.

On becoming aware of the revocation, vehicles operators returned to court and brought the issue to its attention.

They sought the variation of the earlier orders since the regulations of 2013 were legally non-existent at the time of the orders.

It was to this revocation of the regulations and failure to disclose that to the court that influenced the court in the decision it delivered Monday.

The court addressed these issues from the foundation that the actor was no less than the Cabinet Secretary, who is not only a public officer, but an integral official in the national Executive to whom the national values of the Constitution apply.

The court noted the failure to disclose the information and held that such non-disclosure by a public officer was improper and constituted a grave breach of the Constitutional obligation to comply with the national values in governance.

Secondly, the court held that while the regulations, as indeed any action undertaken by a public official, were meant to serve larger public interest, actions undertaken for the public benefit, however, noble, must be within and in accordance with the Constitution.

In other words, the mere fact that an official claims to be acting in the public interest does not exempt such official and whole government from acting within the law.

In view of that, the court then issued an order stating that where a public official acts contrary to law, the costs of such failure ought not to be borne by the taxpayer.

Good governance

It ordered that the Cabinet Secretary be called to court to show cause why he should not bear the costs of the application personally.

The court was careful to add that it appreciated the work of the public officials and that the notice to show cause was not meant to intimidate public officials generally or the Cabinet Secretary individually.

Rather, it explained, such action was necessary to underline the essence of good governance within the current Constitutional dispensation.

Finally, this series of events left the court lamenting that there appeared to be cluster of public officials who were yet to re-align their mind-sets and actions to the changed Constitutional paradigm.

In short, the case appears to have struck a blow for more than the regulations relating to the public service culture in Kenya.

Rather, it was a pointer that the courts are willing, ready and able to uphold the Constitutional values and public officials must account for their actions, whatever the stature of their offices.

In my view, this decision is a reminder that the march towards the new Kenya as envisaged under the Constitution is on, lest we forget.

Sekou Owino is the Head of Legal Services, Nation Media Group