By Tioko Ekiru Emmanuel
The Supreme Court sits at the top of the Judiciary. It is a unifying force, which is why its decisions are binding to all courts below it. Looked at this way, the primary role assigned to this institution by the Constitution is to see to it that laws are executed and properly obeyed.
Similarly, the court is supposed to be the leading actor in developing holistic interpretation of the Constitution and other relevant laws, whose standing ideals is to transform society into one which human dignity, freedom and equality lie at the heart of new the dispensation.
In the Kenyan context, Article 163 of the Constitution establishes the Supreme Court with both original and exclusive jurisdiction to hear and determine disputes relating presidential election by dint of Article 140; it also hear appeals from the Appeal Court and other tribunals. The court, as well, is vested with power to determine any matter of public importance. Additionally, it may give advisory opinion at the request of any government entity. Importantly, Articles 10 and 20(3), (4) signal the Constitution was intended to usher in a legal revolution to build a harmonised jurisprudence that reflects the aspirations of Kenyans.
Since its institution, the Supreme Court of Kenya has been an architect to re-engineer and redesign the country’s jurisprudence. The Court has been brave and bold enough in redressing the colonial legacies which had been transplanted to the state polity after independence. These legacies were inherited from the English legal system and were too rigid and unjust to the indigenous inhabitants.
While addressing the Law Society of Kenya annual conference last year, the chief Guest Hon. Samuel Wako Wambuzi , former Chief justice of Uganda and one time president of East African Court of Appeal, submitted a paper Between the sword and the purse, in which he propounded that during the colonial era, the judiciaries of Africa regarded themselves as mere appendages of the Executive, and that the concept of an independent judiciary is now becoming a reality in Africa. He states:
“As one scholar has observed, independence of the judiciary is a relatively new concept for Third World countries. During the colonial era, the Judiciary was an integral branch of the Executive rather than an institution for the administration of justice. The colonial administration was mainly interested in the maintenance of law and order: it had no respect for the independence of the Judiciary or for the fundamental rights of the ruled. The judiciary was that part of the structure which enforced the law and order: it was therefore identifiable as an upholder of colonial rule. To an average citizen, the Judiciary, as an instrument of control of Executive power, lacked credibility and therefore enjoyed little respect. It was viewed with suspicion”
A scrutiny of the post-2010 reign suggests the Supreme Court has stood tall as the giant in the gates of justice by assuming its leading role of reconstructing and reshaping the country’s laws to realign with the state’s new founding order. The Judiciary, as the third arm of government, must be on pursuit to do away with the demon of mechanical jurisprudence which was applied blindly in post-independence regimes. Furthermore, the court is expected to become the embodiment of hope and the last refuge for all Kenyans regardless of their status. Professor Pendra Baxi on Public interest Litigation in India wrote:
The Supreme Court of India is at long last becoming…the Supreme Court for Indians. For too long the apex court had become ‘an arena of legal quipping for men with long purses’. Now, increasingly, the court is being identified by the justices as well as people as “the last resort of the oppressed and bewildered.”
In this regard, it is incumbent upon the Supreme Court of Kenya to continue developing indigenous, progressive and robust jurisprudence whose commitment is to transform the society in all egalitarian lines. Additionally, the Judiciary as a whole must learn and emulate other distinguished courts of the world like South Africa and India whose jurisprudence have consistently received international acclaims as result of their bold and revolutionary judgments.
Adjudication of cases on the basis of Kenyans realities
The struggle of entrenching a new order culminated in the promulgation of the 2010 constitution, as result of five decades of difficult moments in the nation. The main issue the Constitution intended to deal with was to fundamentally alter and transform the backward economic, social, cultural, and political order in the country governance.
In implementing its aspirational goals, the Constitution cannot achieve its objectives alone. It functionally relies on the institution it creates. In this case then, the Supreme Court, is the special guardian of the Constitution. On a number of occasions, the court has ushered in adjudications which specifically recognise the historical and social contexts on which the constitution was developed.
The first was in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, where emeritus Chief Justice Willy Mutunga talks of a decolonising jurisprudence thus:
“ Although I had categorised the jurisprudence envisaged by the Constitution as robust (rich), patriotic, indigenous and progressive (all these attributes derived from the Constitution itself, and from Section 3 of the Supreme Court Act), perceptions of this decolonising jurisprudence can be summed up as Social Justice Jurisprudence, or Jurisprudence of Social Justice. Such jurisprudence in all our Courts, and in particular at the Supreme Court, as the apex court in the Republic of Kenya, will ensure that the fundamental and core pillars of our progressive Constitution shall be permanent, irreversible, irrevocable and indestructible – as should also be our democracy.”
Similarly, in the Communications Commission of Kenya &others v Royal Media services and others the Supreme Court observed at paragraph 368:
“The Constitution itself has reconstituted or reconfigured the Kenyan state from its former vertical, imperial, authoritative, non-accountable content under the former constitution to a state that is accountable, horizontal, decentralised, democratised, and responsive to the principles and values enshrined in Article 10 and transformative vision of the Constitution. The new Kenya state is commanded by the Constitution to promote and protect values and principles under Article 10.”
Additionally, in The matter of Interim Independent Electoral commission, the Supreme Court recognised the need of a culture change when examining legal issues thus, in paragraph 86:
“The Constitution has incorporated non-legal considerations, which we must take into account, in exercise of our jurisdiction. The Constitution has the most modern Bill of Rights that envisions a human rights-based, and social justice-oriented state. The values and principles articulated in the principle, in Article 10, in Chapter 6 and various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the courts.”
The argument here is that the Supreme Court has been brave enough to engineer and guide the Kenyan transformative project in the right direction.
Elevation of the constitutional values over the common law
David Robertson in Thick constitutional Readings: When thick classic Distinctions Are irrelevant, postulated that modern constitutions are aspirational or transformative, that is, they are declarative of an institutional value system that expresses the nation’s deepest hopes and highest aspirations. They are drafted in recognition of the need to transform not merely society and economy, but the state as well. The central goal of transformative constitutionalism is to rebuild the state and society on new principles and values. All laws must drive the validity from the constitution alone.
It must be remembered that the most sui generis aspect of the 2010 constitution of Kenya that members of the legal community and other interlocutors must appreciate is adoption of a purposive approach of constitutional interpretation. For instance, Articles 10 and 20(4), and 259 of the Constitution enjoin the courts to adopt purposive approach when interpreting the supreme law. This approach is coupled with a values-based interpretive model, which seeks to emphasise the role of values in the society.
Walter Khobe, building from H. Kwasi in “A New jurisprudence for Africa”, has argued that in Africa’s common law jurisdictions, the common law and its doctrinal traditions, philosophic underpinnings and styles of reasoning and interpretation retain substantial prestige and influence among lawyers and judges, often supplying the default rules and norms for framing and analysing even constitutional questions. Yet, common law, in its method, substance, and philosophical underpinning, carries with it elements and tendencies that do not accord with transformative vision reflected in the modern constitution. All laws including common law must be tested within the compliance of the Constitution. The Supreme Court in Raila Odinga –v-IEBC and 3 Others has been criticised for deploying outdated common law approach in determining the concept of substantial compliance with electoral principles in respect of alleged irregularity in the acts of public bodies. Thus it stated at paragraph 196:
“We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of elections. It is on that basis that the respondent bears the burden of proving on contrary. This emergences from a long-standing common law approach in respect to the alleged irregularity in the acts of public bodies – omnia praesumuntur rite et solemniter esse acta – that is, all acts are presumed to have been rightly and regularly done. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departure from the prescription of the law.”
Unlike the 2013 ruling on presidential election, the Supreme Court made a major jurisprudential shift in 2017 presidential election disputes by enforcing electoral principles, values and rules. The Court, by majority, stated as follows:
“The petition before us was, however, simple and to the point. It was obvious to us that IEBC misunderstood it, hence it jumbled-up responses and submissions. Our judgment is also simple and, in our view, clear and understandable. It ought to lead IEBC to soul-searching and to go back to the drawing board. If not, this court, whenever called upon to adjudicate on a similar dispute will reach the same decision if anomalies remain the same. Consistency and fidelity to the constitution is a non-wavering commitment this court makes.”
Although the above statement was objected to by Njoki Ndug’u in her minority dissenting opinion as unfortunate, the court arrived at the constitutionally required answer by upholding the constitutional values and norms.
In the case of Hassan Ali and Another v Suleiman Said Shahbal and others the Supreme Court held thus:
“The court of Appeal interpreted Article 87(2) of the Constitution so as to place it in conformity with the provision of Section 76(1) (a) of the Elections Act. This is a tantamount to elevating a statutory provision above that of the Constitution, and is not tenable, in the light of the provisions of Article 2 of the constitution. The provisions of the Constitution are superior to any legislation. As such, when interpreting the provisions of an Act of parliament, the court must always ensure that the same conform to the constitution and not vice versa.”
In interpreting the Constitution, courts must consistently live to the reality of the rupture that took place in 27th August 2010 as the historical turning point of addressing the horrors of the painful past. Adjudication of any law must embrace substance, which reflects human rights as the heart of new constitution.
Reflecting S. African jurisprudence in the S. Makwanyane ruling
In the South African context whose constitution is couched in language similar to that of Kenya, the founder of black consciousness movement, Steve Biko, followed Fanon’s intellectual footstep by claiming that colonialism (of which apartheid was an extension) left many blacks in South Africa with an inferiority complex, which in some ways made a psychological cripple of the post-colonial subject. Biko, from his own observation, advocated for the need of an epistemological break. Section 3 of the Kenyan Supreme Court Act similarly decrees for an epistemological break from foreign jurisprudence installation to Kenyans realities unless in exceptional circumstances. An epistemological break, according to Biko, entails continuous struggles, and a radical re-examination of old concepts, traditions, values and systems of the west in the Africans legal system by replacing with indigenous African jurisprudence.
In the global platform, the South African constitutional court has been the subject of robust debate in the legal discourse as a result of its path-breaking judgments and the constitutional interpretation mastery. In the famous S v Makwanyane case, the court played its institutional role by upholding human dignity as the communitarian value of the post-apartheid 1996 constitution. Thus the court started:
“The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.…Such a jurisprudential past created what the post-amble to the Constitution recognised as a society ‘characterised by strife, conflict, untold suffering and injustice.’ What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting ‘future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.”
In the case of Mhlungu, Justice Sachs directly addresses the relationship between this history and constitutional interpretation in South Africa:
“We are a new court, established in a new way, to deal with a new Constitution. We need to develop an appropriately South African way of dealing with our Constitution, one that starts with the Constitution itself, acknowledges the way it came into being, its language, spirit, style and inner logic, the interests it protects and the painful experiences it guards against, its place in the evolution of our country, our society and our legal system, and its existence as part of a global development of constitutionalism and human rights.”
On the same line of reasoning, just like Kenya constitution in Articles 10 20(4) and 259, the South African constitution is coupled with a value-drenched approach. Section 39(2) is one of the cornerstones of South Africa’s constitutional framework – indeed, it is one of the primary tools through which the Constitution is intended to do its revolutionary work, by requiring that all legislation, common law and customary law be interpreted and developed in accordance with the spirit, purport and objects of the Bill of Rights.
In the heavily relied upon Carmichele v Minister of Safety and Security case, South Africa’s constitutional court started thus:
“Our constitution is not merely a formal document regulating public power. It also embodies, like the Germany constitution, an objective; normative value system…The influence of fundamental constitutional values on the common law is mandated by Section 39(2) of the constitution. It is within the matrix of this objective normative value system that the common law must be developed.”
It can be argued that Kenya’s Constitution is ‘a value-laden’ transformative charter like other post-war countries e.g. Germany, India and South Africa. It requires the court and other government agencies to be anti-formalist when applying law to its citizens.
It must be appreciated that the Supreme Court has made remarkable steps in nurturing progressive jurisprudence. The Court similarly has ushered in a number of adjudications, within the historical, economic, social, cultural, political and technological contexts, so as to promote the purposes, values and principles that advance the rule of law, human rights and fundamental freedom, permit development of law and good governance.
Emerging jurisprudence from the court exemplifies its arrival to the ongoing trans-national judicial dialogue in the world platform. Our Supreme Court is now seriously tending to emulate the jurisprudence of internationally acclaimed countries like South Africa, India and Germany. It follows, therefore, that all other courts must be ready to foot together with the apex court in guiding the Kenyan transformative project to the right direction.^