A constitution cannot be unconstitutional

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By Newton Arori

In the September issue, readers were treated to an article with the incredulous headline “Unconstitutionality of the Constitution”.

Now, the very notion of an unconstitutional constitution is slightly bizarre, more like saying that the Bible is unbiblical, but I will let it pass. In the article, the author, Shadrack Muyesu, puts forth arguments to support the idea that a constitution can be unconstitutional. It is those arguments that I take issue with. As we shall see, his case is superficially appealing but begins to break down upon closer examination.

The aim of this article is to correct the impression created by Muyesu’s piece. We will argue that a constitution cannot be unconstitutional in any circumstances; it can only be a bad or imperfect constitution.

As Muyesu himself seems aware, a constitution cannot be unconstitutional for lack of another constitution against which alleged unconstitutionality must be construed. He, however, proceeds to assert that some constitutional clauses are superior to others, and that failure to abide by these “superior” clauses results in unconstitutionality. Therein lies the fallacy.

To begin with, the Constitution of Kenya, 2010, as all other constitutions, affirms its place as the supreme law of the land in Article 2(3) where it states: “The validity or legality of this Constitution is not subject to challenge by or before any court or other state organ”.
Therefore, even if one felt that a clause of the constitution is somewhat unconstitutional or illegal, there would be no forum before which to challenge it, and nobody to make that declaration of unconstitutionality.

Even where one challenges an amendment to the Constitution on the basis of non-compliance with “superior” constitutional clauses, the courts have shown reluctance in entertaining such cases.

The above position is very well illustrated by the case of “Rwanyarare and Haj Badru Wegulo vs. Attorney General (Constitutional Petition No. 5 of 1999 [unreported])”. The petitioners had moved to court alleging that certain articles of the Constitution of Uganda were inconsistent with other articles of the same Constitution, and constituted threats and infringements to the inherent rights and freedoms therein. The petitioners sought to have the offending clauses declared unconstitutional.

The petition was dismissed as incompetent, with the court holding that it did not have jurisdiction to construe parts of the Constitution as against the rest of the Constitution. Justice Kato said: “This court has no power to declare one article of the Constitution inconsistent with another, but could deal with the question as to whether or not correct procedure was followed when the (amendment) Act was passed.”

Thus, provided the correct procedure for amending the Constitution has been followed, the new clause forms part and parcel of the Constitution, and it is not open for the court to inquire into the constitutionality of the said clause.

More importantly, it is crucial to note that constitutional clauses are all complementary; none is superior to the other. There are numerous authorities to support this position.
In “Paul Ssemogerere and Others vs. The Attorney General,  (Constitutional Appeal no. 1 of 2002) [2004] UGSC10)” for instance, it was held that “it is a cardinal rule in constitutional interpretation that provisions of a constitution concerned with the same subject should, as much as possible, be construed as complementing, and not contradicting one another. The constitution must be read as an integrated and cohesive whole.”

Likewise in the case of “Smith Dakota vs. North Carolina 192 US 268(1940)” the Supreme Court of the United States pronounced itself thus: “It is an elementary rule of constitutional construction that no one provision of the constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.”

From the foregoing, no constitutional clause is superior or inferior to another. Constitutional clauses are complementary.

Unfounded fears

Muyesu’s concerns appear to stem from a fear of having contradictory clauses in the Constitution, and the resultant chaos, should amendments to certain provisions prevail.  He asserts that: “A popular initiative to rid the Constitution of the two thirds gender rule through an amendment can be procedurally correct. However, to attempt this feat without suitably amending Articles 2, 10(2), 19, 20(4), 21(2), 81… as well as implementer Acts would be to inject massive contradictions in the constitution…”

This point is valid, but should not be a source of concern.  The drafters of the Constitution evidently anticipated mischief from our legislators, hence the requirement for a referendum in certain instances.

Article 255 of the Constitution provides: “A proposed amendment to the Constitution shall be approved by a referendum if the amendment relates to any of the following matters: a) the supremacy of the Constitution; b) the territory of Kenya; c) the sovereignty of the people; d) the national values and principles of governance mentioned in Article 10(a) to (d); e) the Bill of Rights; f) the term of office of the president; g) the independence of the Judiciary and the commissions and independent offices; h) the functions of Parliament; i) the objects, principles and structures of devolved government; and j) the provisions of this chapter.

Thus, an attempt to rid the Constitution of the two-thirds gender rule would trigger a national referendum since it relates to equality, which is among the national values and principles of governance mentioned in Article 10… So would an attempt to tamper with the independence of the Judiciary. Such amendments are highly unlikely to succeed, as the public is now aware of their potential retrogressive effect(s).

But even in the unlikely event that they were to succeed, there would not be a crisis. As it is, there are numerous contradictions in the Constitution, real or perceived. Fortunately, courts have the power to reconcile and resolve these contradictions where possible. In the landmark American case of “Marbury vs. Madison”, it was held that “it is emphatically the province and duty of the judicial department (the judicial branch) to say what the law is.”
Professor Githu Muigai, Kenya’s Attorney-General, in highlighting the challenges of interpreting the Constitution, has observed that the Constitution being a political charter and a legal document, makes its interpretation a matter of great political significance, and sometimes controversy. He writes:

“The constitution contains conflicting or inconsistent provisions that the courts are called upon to reconcile, and at other times the Constitution implicitly creates a hierarchy of institutions or values and the courts are called upon to establish the order of importance. At times, the Constitution is vague or imprecise or has glaring lacuna and the courts are called upon to provide the unwritten part…”

In conclusion, it is acknowledged that, while a Constitution may have (and always has) its imperfections, there will be clauses that do not seem in tandem with the “norms” or principles underpinning the Constitution, and no one is really saying otherwise.

Moreover, as explained above, we already have a remedy for constitutional incoherence – reconciliation by the courts. However, to construe those imperfections as amounting to unconstitutionality is jurisprudentially unsound and only creates needless confusion.

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