In Council of Governors v Attorney General & 7 others  eKLR, the Supreme Court of Kenya had occasion to decide on what exactly is a State Organ as contemplated by the Constitution and whether a body other than a State Organ can ask the Supreme Court for an advisory opinion under article 163 of the Constitution. The Court for the first time described wat a State Organ is and reiterated that only the national government, county governments or a State organ could seek the Supreme Court’s advisory opinion.
The applicant, the Council of Governors, averred that it receives funding from the Exchequer through allocations for operationalization of devolution activities from the Ministry of Devolution and Planning (MoDP) informed by Section 37 of the Intergovernmental Relations Act No 2 of 2012 (IRA). It however contended that the funds received are inadequate to finance all its activities and to bridge this financing gap, it works in partnership with the County Governments and development partners. However, it was contended that County Governments have been facing challenges in justifying the intergovernmental relations contributions to the Applicant and most recently the Senate Public Accounts and Investments Committee in a Report, recommended ten (10) Governors for prosecution for violating the law by making payments to the Applicant.
As a consequence, thereof, the Applicant has sought an advisory opinion of this Honourable Court on the following matters:
(a) Whether the functions of the Council of Governors as stipulated under Section 20 of the Intergovernmental Relations Act No. 2 of 2012 is of a similar nature or in tandem with the functions of the County Government as enshrined in the Fourth Schedule, Part 2 of the Constitution 2010.
(b) Whether the intergovernmental relations contributions made by the County governments to the Applicant are unconstitutional.
(c) Whether pursuant to Section 37 of the Intergovernmental Relations Act, the fundings for the activities of the Council of Governors are restricted to annual allocations from the National Government notwithstanding the inadequacy of the said fund.
(d) Whether on the strength of Section 37 of the Intergovernmental Relations Act the national government is under obligation to provide adequate financial provisions for operations of the Applicant.
In making the Reference, the Applicant described itself in the following terms: “[t]he Applicant herein is the Council of Governors created under the provisions of Articles 6, 175(b), 189, 190, 200 of the Constitution and section 19(1) of the Intergovernmental Relations Act and a State organ within the meaning of Article 260 of the Constitution.”.
The interested parties raised preliminary objections, the major ground of which was that since the Council of Governors was not a State Organ, the national Government or a County Government within the meaning of the Constitution, it could not seek the advisory opinion of the Supreme Court and as such the Supreme Court had no jurisdiction.
The Supreme Court of the Republic of Kenya, considered the definition of the word State Organ in article 260 of the Constitution which defines ‘State organ’ to mean “a commission, office, agency or other body established under this Constitution” and came to the conclusion that since the Council of Governors was created by an Act of Parliament, it was not created “under the Constitution” and was therefore not a State Organ. In reaching that conclusion, the Supreme Court made some interesting findings. The Supreme Court stated that in searching the meaning assigned to some words and phrases as used in the Constitution, one needs to consult Article 260 to find out if that particular term or phrase has already been defined. It is only where the same has not been defined that the Court will embark on seeking a meaning by employing the various principles of constitutional interpretation. So that in looking for the meaning of a particular word or phrase in the Constitution one will go to Article 260 for ‘Interpretation”. The Supreme Court then went into the centrality of English as a medium of interpretation and having done so looked first at the Collins English Dictionary which defines ‘something under a law’, which, to the Court, is equivalent to ‘under the Constitution’ used in Article 260, as something that happens under a law. The Court then looked at the Concise Oxford English Dictionary, 12th Edition where the word “under” is defined inter alia, “as provided for by the rules of, in accordance with.” As far as the Supreme Court was concerned, it was clear that the establishment of the applicant was not done under the law and for that reason it was not a State Organ.
The Supreme Court’s decisions are binding on all courts in Kenya under article 163 (8) of the Constitution and as such the Supreme Court’s decision is binding and should be respected as such. That said, while we strongly agree with the court that the definition of a word under article 260 is conclusive of its meaning, we do not share the court’s reading of article 260. We agree that a State Organ must be established “under” the Constitution. However, we think that the Supreme Court’s gave an unrealistically narrow meaning to the word “under”. All laws in Kenya are made under the authority of the Constitution and as such, in our very humble opinion, an organ created by Parliament has been established under the Constitution. The Constitution is not just another law that one can put side by side with other laws and say that A is done under the Constitution and B is done under an Act. All actions under law are done “under the Constitution” unless it can be proved that the action was inconsistent with the Constitution. This, in fact is the reason that article 2 (4) of the Constitution states that “[a]ny law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
Some of the consequences of the Supreme Court’s decision could be interesting. As an example, article 206 (1) (b) of the Constitution provides that “[t]here is established the Consolidated Fund into which shall be paid all money raised or received by or on behalf of the national government, except money that may, under an Act of Parliament, be retained by the State organ that received it for the purpose of defraying the expenses of the State organ.” This provision is quite similar to section 99 (2) of the repealed Constitution which read “[p]rovision may be made by or under an Act of Parliament for any revenues or other moneys received for the purposes of the Government of Kenya…to be retained by the authority that received them for the purpose of defraying the expenses of that authority…” Section 99 (2) was the basis for the drafting of Acts which enabled an authority to retain money. Since the word “authority” was not defined in the repealed Constitution, it was wide enough to cover State corporations such as, for example, Kenya Civil Aviation Authority. Section 27 of the Civil Aviation which establishes the Kenya Civil Aviation Authority allows the Civil Aviation Authority to retain “monies that may accrue to the Authority in the discharge of its functions”. Now that the Civil Aviation Authority and other similar bodies are not State Organs, the money they collect, in the course of their duties, must be redirected straight to the Consolidated Fund. It would illegal and possibly an abuse of office, for the accounting officer of such a body to retain those funds.
The decision is found on http://kenyalaw.org/caselaw/cases/view/191011/.