The Constitution of Kenya 2010 sets out fundamental rights and freedoms and specifically provides for the Supreme Court's jurisdiction to hear and determine applications for their enforcement. Quite simply, filing a constitutional petition is a strong, powerful arrow in the quiver of a citizen seeking to check executive excess or to claim redress for a rights violation. This article explains how to go about it.  Here is an outline of what is required to file a constitutional petition in Kenya.

Jurisdiction and Standing

Under Article 163(3)(b) of the Constitution, the Supreme Court enjoys original jurisdiction to hear and determine applications alleging violations of fundamental rights and freedoms.  Article 22 lends standing broadly to anyone who can institute court action to enforce the Bill of Rights. Petitions may be made by anyone.

• Persons acting on their behalf
• Persons acting on behalf of someone who cannot act on their behalf
• Members of, or persons acting in the interest of, a group or class of persons
• Persons acting in the public interest
• Associations acting in the interest of their members

Procedure for Filing

 The procedure for filing constitutional petitions as set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, includes the following steps:

1. Drafting the Petition: The petition must state the alleged violation of rights, the provision of the Constitution violated, and the prayer. An affidavit must support it.

2. Filing: You file your petition to the Supreme Court registry with the requisite court fees and then serve a copy of your petition to the respondents (the Attorney General and the relevant State agencies).

3. Response: The respondent has 14 days to file a response to the petition, presenting their own case.

4. Hearing: The court will call the petition for a hearing. At the hearing, the parties will submit their arguments, and the court might let the interested parties or amicus curiae make a submission.

5. Judgment: The court will render judgment immediately after hearing from both parties or at a later date. The judgment may include appropriate relief, such as declarations, injunctions, or compensation.

Grounds for Constitutional Petitions

Constitutional petitions can be filed for alleged violations of any rights and freedoms enshrined in the Bill of Rights, Chapter 4 of the Constitution. The most frequent complaints are based on one of the following grounds:

• Right to life (Article 26)
• Equality and freedom from discrimination (Article 27)
• Human dignity (Article 28)
• Freedom and security of the person (Article 29)
• Right to privacy (Article 31)
• Freedom of expression (Article 33)
• Access to information (Article 35)
  
• Freedom of association (Article 36)
• Right to property (Article 40)
• Right to fair labor practices (Article 41)
• Right to a clean and healthy environment (Article 42)
• Right to fair administrative action (Article 47)

Landmark Constitutional Petitions

 As a result, Kenya's courts have decided several constitutional petitions that have become landmark jurisprudence on fundamental rights. For instance:

In Kituo Cha Sheria v Independent Electoral and Boundaries Commission (Petition No 15 of 2011), the Supreme Court determined that prisoners are entitled to vote and, therefore, can participate in elections.

In Petition No 381 of 2018 (Nubian Rights Forum v Attorney General), the High Court ruled the National Integrated Identity Management System (NIIMS) unconstitutional (on the grounds of protecting the right to privacy and personal data) for use in accessing government services.

Petition No 122 of 2013 (Trusted Society of Human Rights Alliance v Cabinet Secretary of Devolution and Planning); The court held forcible evictions without alternative housing provision violate the right to adequate housing and dignity.

 These cases demonstrate the crucial role of constitutional petitions in enforcing the rule of law and promoting human rights.

Conclusion

Filing a constitutional petition is a serious matter for a citizen to take the state to task on a question of fundamental rights and the liberty of their subjects. The constitution and rules of the court are clear and unambiguous in laying down the course to be pursued by a person who wants to file such a petition. Thoughtful drafting, backed up by supporting material, is key, and petitioners must understand that litigation can be more time-consuming and frustrating than expected.

Constitutional petitions have been key to securing civil liberties, political freedoms, and socio-economic rights in Kenya. As the country's constitutional jurisprudence deepens, strategic petitions can be used to continue pushing the frontiers of rights protection and induce legal and policy reforms.

 In the end, however, constitutional petitions depend as much on the state's willingness to enforce its own judgments and the citizens' watchful vigilance as on the bench's commitment to constitutionalism. Maintaining momentum for constitutionalism will require the cooperation of the bench, bar, and citizenry.