Impact of Unrestricted Locus Standi on Access to Justice

  

Date Posted: 10/8/2011 5:06:35 AM

Posted By: luyali  Membership Level: Silver  Total Points: 120

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Impact of Unrestricted Locus Standi on Access to Justice

Defining locus standi

Locus standi is Latin for a place for standing or the right to appear before a court. Locus standi relates to a litigant’s sufficient interest to approach the court. Standing or locus standi is the term used for the ability of a party to demonstrate to the court a sufficient connection to the case or harm from an action. It is the right of a party to appear and be heard before a court. This interest is what may also be referred to as standing. It means that the party instituting a case has a reason to do so because of actual or potential harm. A party must suffer harm or the harm should be imminent and where there is no harm on the party instituting the cause of action then he may be seen to have no standing. In order to sue, for example, to have a court declare a law unconstitutional, there must be a valid reason; the party suing must have something to lose in order to sue unless they have automatic standing by action of law.

Introduction

The repealed Kenyan constitution adopted a restrictive approach to the question of standing and the courts continued to hold that an individual could only claim relief if he had a personal, sufficient and direct interest in the matter. This position hindered accessibility to justice because a greater majority of the Kenyan populace may have no knowledge of their rights. Furthermore the complexities of judicial processes hamper individuals who are ill-educated from instituting causes of action. As Loots discusses in Dalrymple v Colonial Treasurer,
‘...many people in this country whose fundamental rights are violated may not actually be in a position to approach the court for relief,

for instance because they are unsophisticated and indigent which in effect means they are incapable of enforcing their fundamental....’
This incapacity may also be caused by fear of the rigorous court process or negative publicity in cases where the crime committed against the individual is disgraceful. For instance no African man feels proud to announce that he is continuously beaten by his wife he therefore may fear to institute charges against his wife for such cause of action may lead to unwanted publicity. In other cases like rape the trauma caused by the action of rape itself may be aggravated by more publicity hence a victim of rape selects to remain silent. It is this fear of publicity that perpetuates more violation and raises the question whether such persons should be helped in instituting a cause of action.
Moreover, the cost of litigating in the previous constitutional regime made it hard for individuals to institute causes of action. Archie Nyarango highlights this by stating as follows:
‘.....‘legal ignorance’ is perpetuated because many Kenyans are afraid to approach the legal system, under any guise, owing to its prohibitive cost. They therefore turn to other forms of dispute resolution- some peaceful, some violent- which leave them further excluded from nation’s legal system. In the end, it is not just that those with money stand a better chance in legal disputes, but that those who are denied access to justice begin to regard the formal legal system as less legitimate...’
The repealed Kenyan law vested powers of prosecution in the office of the AG. He was mandated with instituting proceedings against any individual in criminal matters. He could also take over and continue any criminal proceedings before a court and could discontinue at any stage before judgment is delivered. This vast discretion removed the right to institute a cause of action from the victim of crime. What it meant was that unless the AG was willing to prosecute one had no standing to institute a cause of action and if he did institute the AG could discontinue such proceeding. The question would be what would drive the AG to institute a case where he has no interest or the government in which he serves as an advisor has no interest? Although this research would not wish to dwell much on the role of the AG but focus more on the rights of persons to institute cases it would be necessary to note that the AG in his actions could be driven by partisan motives.
It was deemed that the AG would exercise his discretion with professionalism and objectivity and will only be influenced by the existence of prima facie evidence to warrant prosecution, the attitude of the complainant, health of the accused, the humanitarian factor, the public interest, the gravity of the offense and public interest. This discretion may be important as Mr. Yutar says,
‘...a very valuable safeguard, because one has to take account...what the consequences to the accused may be, apart from any penalty which the court of law may inflict. If in my view, the consequences are out of proportion to the gravity of the offense committed, we are permitted to exercise our discretion and decline to prosecute...’
From this statement one may ask whether such discretion violates the rights of the victim and is an insult to the principle of justice. If we take for example, eighty year old sickly grandmother stabs her husband to death, would the AG not prosecute because she is sickly and old? What would such action of not prosecuting impact on the level of crime especially that punishment meted by the court is at times meant to deter other persons from committing crimes like the one being decided upon? It may therefore be said that such discretion may contravene rights of the victim and by extension promote legal uncertainty offending the principles of legality as it undermines the deterrent function of the criminal principles which are the hallmarks of the rule of law. It would then be argued that the victim of crime should be allowed to institute causes of action and such right should extend to even persons who may not e directly affected.
In Chapter Three I have dwelled with the issue of prosecution. The new constitution bestows the right to institute cases upon the office of the DPP . The powers that were enjoyed by the AG in the old constitution are now enjoyed by the DPP.
Common law was reluctant to accept the changing times in the justice system. It remained a spectator as other law regimes developed to expand locus standi. This restriction was evident in the old constitution. As a matter of fact the old Kenyan constitution was silent on locus standi which eventually meant that the courts would have to find standing as by common law which required a person to be directly affected for him to bring a cause of action.
The excuse for restricting standi to interest in a matter was to avoid the institution of frivolous and vexatious cases by busy bodies. The judge in the case of Government of Malaysia v Lim Kit Siang said that;
‘....every legal system has a built in mechanism to protect its judicial process from abuse by busy bodies, cranks and other mischief makers by insisting that a plaintiff should have a special interest in the proceedings he institutes....’
Although I may appreciate that the reasoning behind this excuse was to avoid wasting of the court’s time I also note that such excuse was in itself a contravention of the principles of justice and a violation of the right of access to justice which every constitution claims to provide for the citizenry of a country who have promulgated that constitution as their governing law. It further hampered the development of law within the legal system especially as regards precedence. Finally it limited class rights as it did not allow persons to institute causes of action as representatives of a group. This is to say that for instance a person who is affected by an action which affected a community of persons was barred from instituting charges as such person was seen to have no standing.

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