In a significant decision, the Court of Appeal of Kenya has ruled in favor of upholding the rule of law in a case involving Royal Media Services Ltd and the Independent Electoral and Boundaries Commission (IEBC). The case dates back to 2013 when Royal Media Services claimed that IEBC officials requested a nationwide voter mobilization campaign, which resulted in millions of additional voters being registered. However, the process lacked a formal written contract and failed to follow direct-procurement requirements.
The Court of Appeal's decision, delivered in Civil Appeal No. 239 of 2019, refused to rescue an unlawful public transaction merely because it produced a public benefit. This ruling is seen as a rare moment of constitutional discipline from the Court of Appeal, emphasizing that public benefit cannot become a solvent for illegality. The court's finding is commercially uncomfortable but gets it right, as the constitutionally imposed obligations on public entities and contractors are peremptory.
The dispute arose from an urgent voter mobilisation campaign shortly before the 2013 elections, with Royal Media Services seeking Sh182 million for its services. However, the process fit a proper definition of opacity, and no written contract was signed. The court's decision speaks directly to transformative constitutionalism, emphasizing that a transformative constitution cannot just be a catalogue of desirable outcomes but a project for changing how public power is exercised.
The court's decision is in line with Article 227 of the Kenyan Constitution, which constitutionalizes procurement around a transparent, fair, equitable, competitive, and cost-effective system. This means that public benefit must be pursued through constitutional means, and not through illegal procurement processes. The court's ruling sets a critical precedent for the rule of law in Kenya, emphasizing that constitutional imperatives must come first.
However, the Court of Appeal has in the past treated disruption of government services as a powerful reason to lift stays against governmental action. This has led to concerns about "convenient constitutionalism," where the state can justify unlawful actions if they produce a public benefit. The court's decision in the Royal Media case highlights the need for consistency in upholding constitutional legality.
The Royal Media decision has significant implications for the rule of law in Kenya, emphasizing that compliance with constitutional requirements is a threshold question, not a factor to be balanced with other considerations. The court's ruling also highlights the importance of transformative constitutionalism, which seeks to change how public power is exercised in Kenya.
In conclusion, the Court of Appeal's decision in the Royal Media Services case is a significant step towards upholding the rule of law and constitutionalism in Kenya. The ruling emphasizes that public benefit cannot justify illegal procurement processes and sets a critical precedent for future cases. The court's decision is a testament to the importance of an independent judiciary in ensuring that the constitution is upheld.
Key points
- The Court of Appeal's decision upholds the rule of law and constitutionalism in Kenya, emphasizing that public benefit cannot justify illegal procurement processes.
- The ruling sets a critical precedent for future cases, highlighting the importance of transformative constitutionalism in changing how public power is exercised in Kenya.
- The decision emphasizes that compliance with constitutional requirements is a threshold question, not a factor to be balanced with other considerations.
