THE POLITICAL QUESTION DOCTRINE AND SOCIO-ECONOMIC

RIGHTS LITIGATION: THE UGANDAN AND KENYAN EXPERIENCE.

 PQD addresses the extent to which a court could review the actions of a separate arm
of government

 “Political question doctrine‖ holds that certain issues should not be decided by
courts because their resolution is committed to another branch of government and/or
because those issues are not capable, for one reason or another, of judicial resolution.
Its purpose is to distinguish the role of the judiciary from those of the Legislature and
the Executive, preventing the former from encroaching on either of the latter. Under
this rule, courts may choose to dismiss the cases even if they have jurisdiction over
them (CEHURD & Three Others v. The Attorney General.) see Olooka‘s article
Ghosts and the Law.

 The Court stated in Exparte Matovu ‗any decision by the judiciary as to the legality of
the government would be far reaching, disastrous and wrong because the question was
a political one to be resolved by the executive and the legislature which were
accountable to the Constitution, but a decision on the validity of the Constitution was
distinguishable and within the court‘s competence‘.

 In addressing this issue, the Udoma bench asserted that there was a difference
between the duty of the court to interpret the constitution versus giving an opinion on
the validity of the extra-legally established Obote government.

 Public Interest Litigation (PIL) is the use of courts of law as a mechanism to

challenge authoritarian structures of governance, structural conditions of oppression
and domination and established frameworks of marginalization and exclusion.

 In contrast to the idea that certain issues should not be the subject of judicial
intervention—the essence of the Political Question Doctrine (PQD)—Public Interest
Litigation underscores the idea that law and politics are intertwined in such an
intimate manner that to distinguish the two is to simply split hairs.

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  Put simply, PIL is politics pursued through legal means and using the Judiciary as the
main channel, especially when the traditional political avenues of reform and
progressive transformation have been blocked. In the case of NAACP v. Button, US
Supreme Court Justice William J. Brennan argued that PIL was a form of political
expression:

Groups which find themselves unable to achieve their objectives through

the ballot frequently turn to the courts…. And under the conditions of
modern government, litigation may well be the sole practicable avenue
open to a minority to petition for redress of grievances…. For such a
group, association for litigation may be the most effective form of
political association.

 It follows from the above that in theory there are virtually no matters of Executive or
Legislative operation that lie beyond the purview of judicial scrutiny. Whether or not
the judiciary rules in favour or against the Executive or the Legislature is a different
subject of attention.
 The point is that unlike the PQD, public interest litigation asserts that executive power
must be held fully accountable for its exercise
 Is PQD valid?
 Olooka argues that Given that the Constitutional Court has powers to interpret
anything in the Constitution it logically follows that Ex parte Matovu’s application of
the PQD to Uganda is no longer valid. Read his arguments in ‗Ghost and the Law‘
 The doctrine has to be applied restrictively to allow PIL to thrive
 The PQD was addressed in the Mitubell case in Kenya where PIL seems to thrive in
light of the supremacy clause and justiciability of article 43 rights plus the ‗all
inclusive locus standi in matters constitutional‘
 In Kenya PIL is alive and can be seen in :
1. Centre for Rights Education and Awareness (CERAW) & Ors v AG
Petition No. 16 of 2011 (On Appointment of Chief Justice, AG, DPP
and Controller of Budget)

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 2. Centre for Rights Education and Awareness (CREAW) & Ors v
Minister for Internal Security and AG Petition No. 208 & 207 [2012]
eKLR (On Appointment of County Commissioners)
3. National Assembly of Kenya & another v Institute for Social
Accountability & 6 others [2017] eKLR CDF case (appeal) – the court
discussed PQD parag 73 & 74

 People’s Union for Democratic Rights & Ors v Union of India & Ors 1983
SCR (1) 456, in which it was expressed as follows;(cited with approval in
Central Bank of Kenya & another v Okiya Omtatah Okoiti & 6 others
[2018] eKLR)

―Public interest litigation is essentially a cooperative or collaborative effort on

the part of the petitioner, the State or public authority and the Court to secure
observance of the constitutional or legal rights, benefits and privileges
conferred upon the vulnerable sections of the community and to reach social
justice to them.‖

THE MITUBELL CASE AND THE COURT’S OBSERVATIONS IN THE

CONTEXT OF PQD IN KENYA (COURT OF APPEAL DECISION)
 The role of the judiciary is to interpret the policies and laws as enacted and approved
by the legislature and executive. Generally, courts have no role to play in policy
formulation; formulation of government policy is a function best suited for the
executive and legislature.

 In Marbury -vs- Madison – 5 US. 137 it was stated that:

“The province of the court is solely, to decide on the rights of individuals and
not to enquire how the executive or executive officers perform duties in which
they have discretion.”

 In Peter Njoroge Mwangi & 2 others -v- The Attorney General & Another,
Nairobi Petition No.73 of 2010, it was aptly expressed that the legislature determines
the legislative policy through the statute it enacts. In Speaker of the Senate &

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 another -v- Hon. Attorney General & 3 others (2013) eKLR, the Supreme Court
expressed itself as follows:

“…courts ought not to indiscriminately take up all matters that come before
them but must exercise caution to avoid interfering with operations of the
other arms of government save for where they are constitutionally mandated….

 Ndora Stephen -v- Minister for Education & 2 Others, Nairobi High Court
Petition NO. 464 of 2012, Mumbi Ngugi, J. correctly observed that the formulation
of policy and implementation thereof were within the province of executive.
Questions which are in their nature exclusively political should never be adjudicated
upon by courts.

 The Court of Appeal in the Mitubell case proceed to state ; ‗In the instant case, the
trial court directed that State policies and programs on the provision of shelter and
access to housing for marginalized groups be presented to the trial court. What would
the trial court do with such policies if tabled" Would the court interfere or evaluate the
soundness of the policy" A court should not act in vain and issue orders and directions
that it cannot implement. In making orders and directions in relation to Article 43 (1)
of the Constitution, the provisions of Article 20 (5) (c) of the Constitution must be
borne in mind. Article 20 (5) (c) stipulates that the court may not interfere with a
decision by a State organ concerning the allocation of available resources solely on
the basis that it would have reached a different conclusion. We opine that it is
advisable for courts to practice self-restraint and discipline in adjudicating
government or executive policy issues. This precautionary principle should be
exercised before delving and wading into the political arena which is not the province
of the courts. Limited to the facts of this case, post-judgment supervision of
implementation of judgments is not a function of a trial court. Implementation and
execution of judgment is governed by specific rules and it is to these rules that resort
must be made.

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NOTE THAT THE CASE WILL NOW BE HEARD BY THE SUPREME COURT
BECAUSE OF THE NEGATIVE IMPLICATIONS THE DECISION HAD ON SOCIO-
ECONOMIC RIGHTS IN KENYA

For arguments on the applicability of structural interdicts in SER litigation in Kenya SEE A.B
Khakula Embracing Structural Interdicts in the Enforcement of Socio-Economic Rights in
Kenya: Analysis of the Court of Appeal Decision in the Mitubell Case (on your course outline
available on line).

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