Okunda v Republic
| Jurisdiction | Kenya |
| Date | 25 February 1970 |
| Court | Court of Appeal (Kenya) |
International law in general Relation to municipal law Treaty which prevails in case of conflict Conflict with constitution of a State The law of Kenya
Treaties Operation and Enforcement of Necessity for municipal legislation Conflict between constitution and requirements of treaty Acts of East African Community Obligation of member states to give the force of law Conflict between such act and constitution of member state The law of Kenya
Summary: The facts.The East African Community was established by a Treaty to which Kenya was a party. The Community had power to make certain legislative acts, upon which the Member States undertook by Treaty to confer the force of law in their territory. The Community adopted an Official Secrets Act 1968, section 8(1) of which provided that prosecutions for offences under the Act required the consent of the Counsel to the Community.
Prosecutions were brought by the Attorney General of Kenya against two persons under the Official Secrets Act of the East African Community, without the consent of the Counsel to the Community.
The question whether the Attorney-General could institute such prosecution without the consent of the Counsel to the Community was referred to the High Court. On the reference Counsel for the Community was allowed to appear. Section 26 (8) of the Constitution provides that the Attorney General is not subject to the direction or control of any person in the exercise of his functions, and it was submitted that section 8 (1) of the Official Secrets Act was inconsistent with section 26 (8) of the Constitution which prevailed since the East African Community is a creation of Parliament which is itself subject to the Constitution. Counsel for the Community argued that section 8 (1) was purely procedural, and that any conflict should be resolved in favour of the Community legislation by reason of the requirement imposed by article 95 of the treaty for East African Co-operation on the partner States to pass legislation to give effect to the treaty and to confer on Acts of the Community the force of law in their territories.
Held: There is a conflict between the Attorney-General's functions under the Constitution of Kenya and the provisions of section 8 (1) of the Official Secrets Act of the East African Community, and in such circumstances the former must prevail and the latter is invalid and of no effect in Kenya to the extent of the inconsistency.
The following is the text of the judgment of the Court delivered by Mwendwa, C. J.:
Two cases were filed by the Attorney-General in the Resident Magistrate's court at Nairobi charging two persons with certain offences against the Official Secrets Act (Act 4 of 1968) of the East African Community. Since section 8 (1) of that Act lays down that a prosecution shall not be instituted without the consent of the counsel to the Community, the point arose as to whether the prosecutions could proceed without such consent. At the request of the advocates appearing before him the Senior Resident Magistrate referred the matter to the High Court under section 67 (1) of the Constitution of Kenya.
We decided to consolidate the two cases as the matters arising in both were the same and heard argument by all interested parties. Section 8 (1) of the Official Secrets Act of the community reads as follows:
8 (I). A prosecution for an offence under this Act shall not be instituted except with the written consent of the Counsel to the Community.
No consent of the Community's counsel has been obtained and it is argued on behalf of the Attorney-General that no such consent is necessary and that insofar as section 8 (1) requires the counsel's consent to prosecutions instituted by the Attorney-General it is invalid in Kenya because it is a clog on the powers given to the Attorney-General by section 26 of the Constitution. Sub-section (3) (so far as relevant) of that section reads as follows:
3. The Attorney-General shall have power in any case in which he considers it desirable so to do
(a) to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;
This provision, applies to any case and to criminal proceedings against any person in any court (other than a court-martial) in respect of any offence. Since the enactments of the East African Community are part of the law of Kenya, any offences against those enactments are covered by this subsection. This point is not contested by any of the parties before us and we shall say no more about it.
For the Attorney-General it is submitted that there is no question of the Attorney-General's having to obtain the consent of any other person and reference is made also to the following subsection of section 26:
(8) In the exercise of the functions vested in him by subsections (3) and (4) of this section and by sections 44 and 55 of this Constitution, the Attorney-General shall not be subject to the direction or control of any other person or authority.
It is argued that section 8 (1) of the Official Secrets Act of the Community is inconsistent with subsection (3) as read with subsection (8) of section 26 of the Constitution which give the Attorney-General unfettered power to bring criminal proceedings in respect of offences. The Attorney-General is not, in this matter, to be subject to the direction or control of any other person or authority.
It is further argued that the East African...
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