Why I salute the departed Judge Hayanga
Law Society of Kenya President Isaac Okero (left) shakes hands with Rtd Justice Andrew Hayanga (right) during the Centennial Celebration of the Legal Fraternity and the Judicial Careers of Justice John Mwera and Justice Anyara Emukule at the Old Law Courts in Mombasa in this photo taken on 5th December 2016.
The loss of a groundbreaking and brilliant legal mind is one that will be deeply felt by any society. Justice Andrew Isaac Hayanga, who died on April 25, was such a figure within the Kenyan legal system. His contribution to emerging constitutionalism and respect for human rights and access to justice will remain a shining legacy and I can personally attest to this.
In a functioning constitutional democracy, an impartial and independent Judiciary with the power to remedy breaches of fundamental rights is indispensable. Justice Hayanga understood this and used his legal acumen to further cement the supremacy of the Constitution in the protection of fundamental constitutional rights.
This was almost a decade before the adoption of our new Constitution in 2010.
Although these rights are now fully enshrined under the Constitution, in the landmark case of Dominic Arony Amolo v AG (2003), Justice Hayanga set the pace for an expanded protection of human rights by opening up access to justice for thousands of Kenyans who were victims of limitation of action defence in the Government Proceedings Act that the Kanu government used to rely on to lock out genuine human rights actions.
I had the privilege of arguing the case and responding to a preliminary point of law seeking to dismiss the case on the alleged ground that the suit was time barred. The judge’s decision held that the Constitution is supreme in matters touching fundamental rights and, therefore, the Limitation of Actions Act did not apply to actions brought under the Constitution.
Point of reference
This momentous ruling became the point of reference for all petitions and judicial review applications, especially by Kenyans who had long been prevented by state machinery from enjoying their fundamental freedoms and rights.
Today in Kenya, court judgments and judicial pronouncements routinely maintain that the government is constitutionally mandated to operate within the bounds of the Constitution and protect individual rights from infringement by the state.
As Justice Hayanga is laid to rest, his contributions to the place of judicial review in modern-day Kenya will remain a central legal safeguard against administrative injustice, oppression and arbitrariness against the people. His dedication to upholding the rule of law and protecting the rights of all Kenyans will not be forgotten, and his legacy will continue to inspire current and future generations of legal professionals.
May his soul rest in eternal peace.
- Mr Imanyara, an advocate of the High Court of Kenya and publisher of The Platform Magazine, www.theplatform.co.ke, is a former MP.
