Some cases of monumental impact in the first half of 2021

The previous piece in this column highlighted court decisions and judgments that were strange, funny and bizarre. However, the courts have also made some decisions in the first half of the year that are of monumental effect.

In Kenya, the High Court made a decision now known popularly as the BBI judgment in which it held that there are aspects of the Constitution of Kenya that cannot be amended by Parliament but even more by the action of the executive or any person exercising executive authority. 

These aspects of the Constitution, it held, are sacrosanct and could only be amended by popular initiative of the ordinary citizens and even then, in a specific process that maximises public participation by the citizens rather than the political and administrative bureaucracy. 

That decision is the subject of an appeal that is due to be heard by the Court of Appeal this coming week.

In India, the Supreme Court made a decision just a few weeks ago in which it held that administrative efficiency, despite being a crucial concern, has not been and cannot be elevated to a standard that it is used to justify non-performance of essential functions by an instrumentality of the state.

To use administrative efficiency to make it practically impossible for a student to alter her identity in the board certificates, no matter how urgent and important it is, would be highly disproportionate and can in no manner be termed as a reasonable restriction. This decision came in the context of a case in which several persons had challenged certain regulations by the Central Board of Secondary Education for the refusal by the board to accept changes of name and other particulars in the academic certificates of the individuals.

The board had declined requests by students to change their names and particulars in their academic certificates. It cited as a reason for this that it would be cumbersome if students were to be allowed to change their identity particulars in the certificates at whim. 

Protect public safety

The Supreme Court of India disagreed with the board. It said the natural identity of an individual should be treated to be essential to his being. 

It said that part of the personality of a person has to be respected and not despised or looked down upon. 

Destruction of individual identity would be tantamount to crushing the intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. 

The court went further to state that the right of an individual to be recognised by a name or to change that name is an aspect of freedom of speech and expression and that expression of identity is a protected element of freedom of expression under the constitution. It, therefore, held that a state agency could not simply use bureaucratic convenience to deny the individual his or her intrinsic right to expression through a name, even in academic certificates and other identity documentation.

In March, the California High Court struck another note for liberty on the issue of bail for accused persons in criminal cases. The court did not hold simply that bail is a constitutional right; it said that the unilateral practice by the State of California of detaining accused persons who could not afford to pay the Bond for release pending hearing of a case is unconstitutional. 

Justice Mariano-Florentino Cuéllar, writing for the court, said the issue of whether an accused person is detained pending trial often does not depend on a careful, individualised determination of the need to protect public safety, but merely – as one judge observes – “the accused’s ability to post the sum provided in a county’s uniform bail schedule”. 

The facts of the case would show why the judges saw this injustice. The appellant in that case was a man named Kenneth Humphrey, who challenged the $600,000 bail a judge assigned him in 2017 after he was accused of robbing a neighbour of $5 and a bottle of cologne.

Punishing the poor 

The decision of the judges means courts trying suspects of criminal offences in the state of California will have to consider a defendant’s ability to pay the amount set for bail. If they cannot pay, and the judge does not feel they pose a threat to society if released, the judge may not keep them behind bars in pre-trial detention. 

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” they concluded. 

This is a welcome decision that shows judges taking care to ensure that the law is not used to punish the poor person disproportionately because of inability to afford bail. 

This is a point many courts, including Kenya’s, which is given to setting bail conditions in the millions, would do well to heed.

This week, in the case of the National Collegiate Athletic Association (NCAA), the United States Supreme Court made another important decision for amateur college sports in that country. 

The NCAA is an association that governs sporting activities in colleges and universities in the United States. 

It issues and enforces rules regarding amateur student athletes in colleges. 

Some of these rules regard the amount of money universities and colleges may pay students who participate in athletic competitions for their colleges. 

Education-based benefits

In contention in this case was a rule that restricts the amount that a college may pay an athlete representing it in sports while a student. Students have complained that these restrictions provide an unfair restriction on the rights of students to be paid a fair compensation for their efforts, especially because college sports in the United States is a source of huge revenues and marketing attention of the colleges. 

The case was brought by current and former student athletes who argued that the rules restricting compensation such as maximum limits on the cash that may be paid to students or the extent of scholarships made by a monopolistic association like the NCAA served unfair purposes.

They further argued the rules limited their right to receive funding and support and scholarships for post-graduate studies and earn wages and was therefore un constitutional for hindering interstate commerce, contrary to the US Constitution.

This, they added, resulted in a situation that hinders fair competition in the business that college athletics had clearly become in that country, despite the NCAA’s insistence that college sports should be for amateurs and not professional athletes.

The Supreme Court held that a lower court’s decision that had struck out as illegal the NCAA rules limiting the education-based benefits that colleges could make to student athletes as part of athletics scholarships was right and dismissed the NCAA’s appeal. 

However, more important was the awareness of the judges that the real answer to these challenges was probably not legal. Justice Gorsuch said that judges must be mindful of their limitations as generalists as lawyers and outsiders in trying to understand intricate business relationships. 

These cases each have some far-reaching effect beyond the parties in those decisions and give new light to legal issues within business and in the lives of persons.

The writer is Head of Legal at Nation Media Group PLC