COMMITTAL TO CIVIL JAIL GOES AGAINST CIVIL AND HUMAN RIGHTS

Thinking out loud if “A party who is deprived of their basic freedom by way of enforcement of a civil debt through imprisonment is also curtailed of their ability to move and even seek ways and means of repaying the debt” as held by Koome J in Re Zipporah Wambui Mathara [2010], does it mean then that the provision of committal to civil jail under the Civil Procedure Rules 2010 is unconstitutional?

Koome J in this matter stated that imprisonment in civil jail goes against the International Covenant on civil and political rights that guarantee parties basic freedoms of movement and of pursuing economic social and cultural development. This ruling was made in an application for stay of execution of order of committal to civil jail pending bankruptcy proceedings by Zipporah Wambui Mathara.

The Applicant had filed Bankruptcy proceedings where a receiving order was issued in respect of her estate on May 21, 2010. She had earlier been committed to serve a jail term due to her failure to satisfy a decretal sum of Kshs.339, 855.00 owed to the respondent pursuant to a judgment against her.  It was the Applicant's case that since a receiving order was issued against her in the matter, her estate vested upon the official receiver and therefore she had no capacity to pay the decretal amount. In addition she was required to appear before the official receiver in person to provide information on her estate for the proper administration of her estate by the official receiver; however she was not in a position to do so due to her incarceration.

The Applicant submitted that under Article 2(6) of the Constitution of Kenya 2010, any Treaty or Convention ratified by Kenya formed part of the Laws of Kenya under the Constitution.  It was contended that that provision imported the Treaties and Conventions that Kenya ratified, especially the United Nations International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972. According to Article 11 of that Convention, no one could be imprisoned merely on the ground of the inability to fulfill a contractual obligation.  It was further submitted that due to the hierarchy of the laws, the Constitution was supreme therefore the Civil Procedure Act that provided for committal to civil jail as a means of forcing a debtor to satisfy a contractual obligation was against the spirit of the Constitution and, International Human Rights Law that protected and promoted basic freedoms. Lastly it was argued that under Section 9 of the Bankruptcy Act after the receiving order was made, the Official Receiver was supposed to take over the property of the debtor which could not be attached except with the leave of the Court.

The application was opposed by the respondent who alleged that Mrs. Mathara the debtor was deliberately refusing to pay the debt as she had promised to pay the debt by installments of Kshs. 50,000/ and due to her failure to pay, execution was issued by way of committal to civil jail which was provided for under the Civil Procedure Rules. On the application of the International law, the Respondent urged the court to consider the Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as one of the means of enforcing a judgment.

The court in arriving at its decision took note that under the Bankruptcy Act, it had the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and administer the estate of the debtor. The argument by counsel for Respondent that the debtor was refusing to pay the debt did not hold because it was not an application to set aside the receiving order. As it was conceded that Mrs. Mathara could not appear before the official receiver to provide information for the composition and setting up of creditors meeting due to her incarceration the application was allowed and an order of stay of execution until the determination of the bankruptcy petition granted. 

The court also concurred with the counsel for Applicant that by virtue of Section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya had ratified, were imported as part of the sources of the Kenyan Law. Thus the provision of Article 11 of the International Covenant on Civil and Political Rights which Kenya had ratified was part of the Kenyan law. The Court noted that the covenant made provisions for the promotion and protection of human rights and recognized that individuals were entitled to basic freedoms to seek ways and means of bettering themselves. It therefore meant that a party who was deprived of their basic freedom by way of enforcement of a civil debt through imprisonment, their ability to move and even seek ways and means of repaying the debt was also curtailed. 

Thus the court noted that there were several methods of enforcing a civil debt such as attachment of property. An order of imprisonment in civil jail on the other hand was meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt. The court opined that was indeed against the International Covenant on Civil and Political rights that guaranteed parties basic freedoms of movement and of pursuing economic social and cultural development. For the foregoing reasons the application was allowed, the costs of the application was however awarded to the respondent.

Comments

  1. Anonymous22 October 2012 at 23:56

    Unfortunately this post mischaracterises the court's opinion in Re Mathara. What the court said in relation to art 11 ICCPR was purely obiter. The dispositive part of the ruling was based on the Bankruptcy Act and hence this decision lays no rule in relation to the constitutionality or otherwise of the impugned provisions of the Civil Procedure Rules. In any event, there exists a decision of the High Court that held that art 11 of the ICCPR allowed the execution process that was being challenged; see Beatrice Wanjiku & Another v AG. So the view expressed in this blogpost is patently misleading.

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    Replies
    1. Mercyline Lubia31 December 2012 at 14:53

      Hallo, my apologies for taking a long time before responding to your comment. I appreciate that there has been debate on the constitutionality of committal to civil jail in Kenyan courts of law. The case of Re Zipporah Mathara discussed on this post has been the spark of this debate. If I may quote part of the judgment, Justice Koome states the following;

      “The provisions of the Constitution of Kenya 2010 was also invoked and this ruling would not be complete without a commentary on those submissions. Principally I agree with counsel for the debtor that by virtue of the provisions of Section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has ratified, are imported as part of the sources of the Kenyan Law. Thus the provision of Article 11 of the International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972 is part of the Kenyan Law. This covenant makes provisions for the promotion and protection of human rights and recognizes that individuals are entitled to basic freedoms to seek ways and means of bettering themselves. It obviously goes without saying that a party who is deprived of their basic freedom by way of enforcement of a civil debt through imprisonment, their ability to move and even seek ways and means of repaying the debt is curtailed. For the above additional reasons I will allow the application, the costs of this application will however be awarded to the respondent.”

      From the above excerpt it is clear that the 'unconstitutionality of committal to civil jail' was part of the reason the honorable judge gave for her decision decision.

      However there are other cases where the constitutionality of Section 40 of the Civil Procedure Act, which provides for committal of judgment debtors to civil jail has been discussed.They include the case of Diamond Trust Kenya Ltd v Daniel Mwema Mulwa Milimani HCCC No. 70 of 2002 and the matter of Rosanna Pluda Moi v Philip Kipchirir Moi, Nairobi Divorce Cause No. 154 of 2008. The judges in this cases have expressed different opinions as regards the constitutionality of Section 40 of the Civil Procedure Act.

      It appears that the case of Beatrice Wanjiku & another v Attorney General & another [2012] eKLR is an attempt to give a solid stand on two main issues. the first issue is whether committal to civil jail is unconstitutional and the second issue the relation of international law to Kenya national laws. I am opined that Justice Majanja adequately addressed these issues in the Beatrice Wanjiku case.

      I hope that this adequately answers your concerns. I would also like to thank you for the interest you have taken on this post. Thank you.



      Delete
  2. Unknown29 May 2013 at 11:23

    Why is the judiciary not acting to determine whether the issue of civil jail is unconstitutional or not,is it an issue to do with jurisdiction or its just that they have decided to go quiet on the issue?

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  3. Anonymous7 March 2014 at 16:36

    I believe committals to civil jail should completely be struck from the Kenyan laws because it does not benefit in any way the decree holders

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  4. allan17 April 2014 at 12:35

    committal to civil jail has been and remains to unreasonable provision of the law. The legislators of the civil procedure Act (sec38) and the recent 2010 civil procedure rules (order 22 rule 7) must not have thought of the absurdities this provision can lead to. The new constitution has now cured this by domesticating international law under Article 2(5) and2(6)....The domestication of international law gives effect to sec 11 of the International Convention on Civil and Political Rights(ICCPR) which precisely provides that a judgement debtor cannot be jailed merely becouse of failure to comply with the decree. I this the court was justified ruling out that this act of civil jail is unconstitutional.

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  5. Anonymous25 June 2014 at 11:09

    I concur with you friends that committal to civil jail is unconstitutional. it makes it very difficult for the debtor to settle the debt while in jail. In any case, I am opined that it should be the last option after all other modes of execution have been exhausted.

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  6. Unknown12 April 2017 at 12:41

    i concur that civil jail should be struck off...nice piece btw

    ReplyDelete

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