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Constitutional Interpretation of Rights and Court Powers in Kenya: Towards a More Nuanced Understanding

Document Cited in Related
Vincent
Pages203-224
DOI10.3366/ajicl.2019.0269
Date01 May 2019
Published date01 May 2019
INTRODUCTION

The enterprise that is constitutional interpretation has given rise to several theories. Some have labelled this ‘a faulty pastime for academics’,1 to be laid on the doorstep of the ‘over-academification’ of legal practice. Yet many others have continued to stress the importance of having a consistent theory to guide constitutional interpretation.2 Those who make the case for having a consistent theory seem to make a convincing one, for the law attracts increased respect and fidelity when it is predictable as opposed to when it is not. The ability of those governed by a law to consistently and accurately anticipate what the law means has always been an ideal highly sought after. Tom Bingham lists such legal certainty as a key tenet of the rule of law3 while William Wade and Christopher Forsyth denounce discretion as ‘the antithesis of the golden and straight metwand of law’.4 This was something that legal theorists had been saying long before,5 while judicial authorities have made similar remarks.6 It is for this reason that the use of one standard approach to interpreting a constitution is preferable to the use of several that vary.

Today, there have been developed several theories of constitutional interpretation that seem to vary per the nation under observation. They range from being as abounding (as in the United States) as textualism, originalism, literalism, doctrinalism, philosophic approaches, historicism and pragmatism,7 to being as minimalist (as in Kenya) as textualism and purposivism.8 Because it will require an excursus to go into an analysis of the theories of constitutional interpretation used in different nations, this essay stays within the confines of the Kenyan situation.

For a long time prior to the promulgation of the Constitution of Kenya (2010)9 (hereinafter referred to as ‘the Constitution’), the approach to interpretation seemed to be ‘intermixed’ – a narrow interpretation giving way to one more broad at the turn of the decade.10

The situation seemingly changed with the coming into force of the Constitution since, unlike the repealed Constitution,11 it gives guidance on how it should be interpreted.12 Off it has arisen what can be seen as a largely held belief (hereafter referred to as the ‘standard view’ or ‘prevailing understanding’) among legal practitioners and activists, constitutional scholars13 and judicial authorities in Kenya. This is a view that can be summarised under two prongs, which are: (1) that a theory of interpretation which calls for rights to always be read broadly is always adequate and correct; and (2) that it is always the proper approach for courts to read their own powers and jurisdictions broadly, especially where rights are concerned.

This has, in turn, meant the demise of an interpretation that takes a narrow view of court powers and an expansive views of the powers of other institutions. Indeed, as will be shown later, the adoption of such a mode of interpretation often leaves one chastised as having gone against the Constitution.14

This article attempts to critique the effects of this prevailing understanding of constitutional interpretation in Kenya and its tenability. The study begins by looking into the changes that the Constitution has brought to the understanding of constitutional interpretation in Kenya. It then analyses the Constitution's text and some case studies to confirm whether the standard view (1) is what was sought in the writing of the Constitution; and (2) is tenable. Finally, it will give some thoughts on the way forward.

 THE 2010 CONSTITUTION AND THE PREVAILING UNDERSTANDING OF CONSTITUTIONAL INTERPRETATION IN KENYA Behind the Provisions Written In

The perverse results of narrow constitutional interpretation by some courts15 (particularly in their reading of rules of procedure in cases to do with fundamental human rights and freedoms16) meant that public sentiment had before 2010 decidedly turned against interpretation which considered narrowly both rights as well as the courts' powers in comparison to other institutions' powers. In 2004, under the heading ‘What the People Said’, the Constitution of Kenya Review Commission (hereafter referred to as ‘the CKRC’) wrote as follows:

Concern was raised about the generally restrictive approach to constitutional interpretation which the High Court has adopted, especially in the area of human rights litigation; this, it was suggested, has hampered the growth of proper jurisprudence, case law or precedence in this area.17

This feeling was especially heightened within the scholarly and activist world which had always been at the forefront of the movement pushing for increased sensitivity and respect for fundamental rights and freedoms in Kenya.18 It was no surprise then that despite seemingly conceding that ‘constitutional interpretation is a technical matter that is not amenable to direct evaluation by the people’19 the CKRC recommended the incorporation of an interpretation clause that they said should be worded in a manner that would assist interpreters to appreciate the fundamental values of the Constitution. It said as well that there was need for a provision that set out the principles governing interpretation, which ‘needed to include the promotion of values that underlie an open and democratic society based on human rights, equality and freedom.’20

Although it was later rejected in a referendum,21 the eventual product of the CKRC – the so-called Bomas Draft – had a provision that listed numerous national values, principles and goals, and bound all those who took part in interpreting the Constitution to have regard to them.22

When the country rekindled its efforts to have a new constitution, the Committee of Experts (hereafter referred to as the CoE) picked up from where the CKRC left off. They focused their efforts on the ‘contentious issues’ that arose from the CKRC's prior work, the area of constitutional interpretation not being identified as one.23 With that in mind, it comes across then as somewhat surprising that the promulgated 2010 Constitution did not just repeat what had been in the Bomas Draft but had in it more provisions touching on the subject of constitutional interpretation.

The material parts of these read as follows:

In applying a provision of the Bill of Rights, a court shall – (b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom;'24

In interpreting the Bill of Rights, a court, tribunal or other authority shall promote – (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights;' and25

This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.26

The document further goes on into extensive detail regarding its reading.27 The Prevailing Understanding

If what was sought by the writing of these provisions into the Constitution was consistency, then a consistent understanding of meaning has almost been achieved. In this section, this article will show the consistency of understanding that it found after conducting a cross-sectional study of the understanding of legal practitioners and civil society in Kenya, that of the academy and that of the judicial fraternity.

The Bar and Civil Society

A reliable bellwether of a group as diverse as legal practitioners in Kenya may be the group authorised to speak on their behalf – the Law Society of Kenya (hereafter referred to as ‘the LSK’). Thus the focus of this article in attempting to find a general understanding among legal practitioners on what the Constitution calls for in its interpretation was on the statements of the LSK since 2010. There were a few centred on constitutional interpretation, and this article highlights two to clarify that interpretation.

The first of the two is a statement made following the ruling by the Supreme Court, which barred the admission of additional evidence by the applicants in Raila Odinga and 2 others v. Independent Electoral and Boundaries Commission and 3 others.28 In it, the LSK expressed disappointment with the Supreme Court's interpretation of the Constitution, noting that ‘since the promulgation of the Constitution … the practice of law in Kenya has evolved from adherence to procedural technicalities to emphasis on substantive justice.’29 The LSK made clear their understanding that the advent of the Constitution changed the understanding of constitutional interpretation in Kenya to effectively require courts to read their powers more broadly.

The second came on the heels of the Court of Appeal's decision in Karisa Chengo and 3 others v. Republic.30 In it, the LSK took the rare step of calling for the reversal of this Court of Appeal decision in which the Court had interpreted constitutional provisions touching on the question of the jurisdiction of environmental and land court judges narrowly enough to find that they had no constitutional mandate to hear criminal matters. The LSK insisted that the judges could indeed hear such suits, and that these constitutional provisions were meant to be read broadly to enable judges to hear such cases.31

There has never really been any question as to where civil society stands on the interpretation of the Constitution. Indeed, the very role they played in agitation for a more broadly based interpretation leaves no doubt as to their stand.32 Still, this article finds it necessary to give a few examples that show the contemporary view of what the provisions in the Constitution on interpretation call for. In Nairobi Law Monthly Company Limited v. Kenya Electricity Generating Company,33 civil society filed amicus briefs that called for the...

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