President William Ruto’s decision to establish a task force on compensation for victims of State excesses was not unlawful, the Law Society of Kenya (LSK) has told the High Court, expressing support for the team.
The LSK added that the establishment of the Panel of Experts on Compensation of Victims of Demonstrations and Public Protests falls within the scope of the President’s constitutional functions.
In a sworn affidavit filed by its Chief Executive Officer Florence Muturi, LSK also says the appointment of the Presidential Panel of Experts does not amount to usurpation of the functions of Kenya National Commission on Human Rights (KNCHR) or the Victims Protection Board.
The development comes days after LSK filed another affidavit asking the Court of Appeal to dismiss the panel’s application to lift interim orders issued by the High Court suspending activities of the task force.
Hearing of application on Tuesday failed to take off after Justice Sankale Ole Kantai disqualified himself from the case, citing his familiarity with some parties. Other judges on the bench were Kathurima M’inoti and Mumbi Ngugi.
However, in the affidavit filed at the High Court, LSK maintains that the appointment of the task force does not also undermine the independence of constitutional commissions such as the KNCHR or similar statutory bodies.
LSK further argues that the legal issues surrounding the Panel of Experts on Compensation of Victims of Demonstrations and Public Protests mirror those raised four years ago against the Building Bridges Initiative (BBI) task force.
In that case, the High Court held that the President’s power to appoint a task force is closely related to his broad policy-formulating function, hence it is an executive power and a mechanism to obtain information and advice to achieve constitutionally mandated objectives.
The same court further emphasised that Articles 131 and 132 of the Constitution, which confer specific executive powers on the President, take precedence over general provisions such as Article 252, which relate to functions and powers of independent commissions and offices.
“Accordingly, based on the above precedent, the President’s powers under Article 132 do not contradict the constitutional functions of Commissions under Article 252; they exist in a complementary and constitutionally harmonized framework,” says the LSK.
The affidavit, filed through lawyer Elisha Ongoya, is in response to a petition lodged by lawyer Levi Munyeri, contending that the presidential task force was unconstitutional for breaching the principle of separation of powers.
The panel was sworn in on September 4, with members drawn from civil society, the legal fraternity and other professional fields, including LSK chairperson Faith Odhiambo who was the vice chairperson of the task force.
However, she has since resigned, citing stalled progress and legal challenges. Her departure followed criticism from some members of the public.
Constitutional obligation
Regarding the petitioner’s contention that the establishment, composition, and functions of the task force amount to an unlawful exercise of legislative or policy-making power by the Executive, LSK denies the same.
It stresses that the appointment of the panel of experts in itself does not amount to an unlawful exercise of legislative or policy-making power by the Executive. Therefore, articles 94 and 95 of the Constitution have not been violated in this case.
“From the jurisprudence in the BBI taskforce case, it is established that the President can establish a mechanism to advise him on how best to fulfil this constitutional obligation. There is also no evidence that the appointments vide the gazette notice were unlawful or that the appointees failed to meet the integrity standards of Chapter Six of the Constitution,” says LSK.
It has also rejected arguments that the President was constitutionally obligated to facilitate public participation prior to the establishment and gazettement of the task force. LSK says failure to do that did not render the process unconstitutional.
“The principle of public participation is not relevant at this stage. The Law Society of Kenya hastens to add that, in the performance of its mandate, if it gets there, the Panel has a duty to ensure optimum public information and reasonable public participation (particularly the affected public),” it argues.
On whether the funding, operationalization, and financial commitments related to the task force breached the principles of public finance, the LSK says that is not true.
It says the expenditure did not breach the legal principles of public finance under Articles 201 and 206 of the Constitution including failure to comply with lawful appropriation procedures.
“When the actual appropriation of funds starts, scrutiny shall reveal whether or not the same are violative of the safeguards in public finance management and the same may be dealt with on the evidence that shall emerge then,” LSK tells the court.
Regarding the petitioner’s fear that the roles of the task force violate Article 31 of the Constitution in relation to the right to privacy and data protection, LSK takes note that the Gazette Notice says the team will be “acting in accordance with the law”.
LSK says the phrase “acting in accordance with the law” signals an endeavour to incorporate Article 31 and other privacy protections.
“If, on a case by case basis, the Panel fails to comply with the law, the LSK retains the liberty to take up the cudgels on behalf of the general public or any affected individual and enforce compliance with the relevant constitutional and statutory standards. For now, the Gazette Notice, in and of itself, does not appear to be a violation of the privacy provisions of the law,” they argue.
