By Tioko Ekiru Emmanuel
The confluence between legal reform and transformation arises because both processes denote some form of change. The major difference between the two is in the nature of change that each process targets to achieve. It could be argued that transformation targets more radical change than legal reform. In contrast, legal reform, even in the cases of comprehensive change, mostly remains grounded in an approach to law in pure and restricted form.
Drucilla Cornell, in ‘Transformative, recollective imagination and sexual differences’,’ argues that transformation should be a change not only of a system but of subjects within the system. Cornell and other critical thinkers, further assert that the transformation process must involve change in all spheres of life – social, economic, legal and political. It also encompasses a process of complete change of culture and thought by individuals, to begin viewing and understanding things in a different way from the way they did in the past.
The fundamental role of the constitution in the transformation process is informed by, amongst others, the multidisciplinary nature of change and the fact that the constitution is able to traverse all these fields. The goals of transformation are therefore contained in the norms, values and principles prescribed by the constitution. These are vital in ordering the direction of a nation.
It is prudent to note that Kenya’s legal education requires critical re-evaluation and transformation to ensure that students of law, legal academicians, lawyers and judges are well equipped with the tools and normative tenets as envisioned in the Constitution of Kenya 2010. It goes without saying that, indeed, there is a problem – not just a problem, but a cancerous way of thinking that needs remedying in the field of law itself. I fear this foreign thinking is craving its way towards carrying over the nascent ambition of new jurisprudence. It is thus inescapable to say this westernised imagination is a potentially serious threat in legal education.
The crises in legal education are said to be a convergence of the violence and disciplinary nature of the law, the conservatism of our formalist legal culture, the disenchantment of students and teachers of law, the neo-liberalisation of knowledge, the corporatisation of the university, the erosion of an active, democratic public sphere, the maintenance and legitimation of inequality, misery and powerlessness, and the deeply entrenched supremacy of Western epistemological paradigms.
Karl Klare, while appreciating the post-liberal nature of the South African constitution, throws in some caution regarding the normative and institutional framework expected to steer transformative constitution. According to him, the chief obstacle to the pace of transformative constitutionalism is the conservative, formal and rigid legal culture of judges and lawyers. Unless experiences present a need for self-reflection and transformation, there is a big risk of getting stuck within a particular legal culture.
Douzinas and Gearey also aver that conservatism in legal culture is a product of technocratic and formalistic approach, and idea to the law. They insist that not only the wisdom, knowledge and consciousness of law should be central to jurisprudential enquiry, but also “the conscience of law, the exploration of law’s justice and of an ideal law” against which the positive law is to be judged.
In spite of the a new constitutional order, the remarks of Senior Counsel Ahmednasir Abdullahi to the effect that “elements of past societal conflicts, reasoning and decision making, are still very much alive and are part and parcel of today’s problems and attitudes” ring true. Through technicalising and depoliticising law in these ways, traditional legal education not only transmits a Western, conservative, bourgeoisie and false idea of law, but also works to dull students’ moral, political and intellectual impulses by reinforcing the notion that “thinking like a lawyer” involves an acceptance of the distinction between the legal and the non-legal aspects of the law.
Consequently to both legal formalism and the professionalization of the legal academy, many teachers of law craft their professional self-image either in the figure of a lawyer (as in the odd and duplicitous title of “academic lawyer”) or that of an “expert” or “leading researcher” in their field. This repudiation of our teaching role, coupled with the need for a title that expresses self-importance, exceptionalism and expertise, confesses the haughtiness and ruthlessness often associated with lawyers. It also confesses the degree to which legal academics are disconnected from the imperatives of having to teach law differently in a changing context where the aim should be to produce not only lawyers and professionals, but also citizens, activists and intellectuals.
Walter Khobe warns that given the poor political institutions in polyarchies, the risk of a slide back to authoritarianism is never too far away.
The aim of this commentary is to make a study case that, for Kenya to ensure the goals and aspirations of its transformative project remains viable, the legal community needs to sustain a purposeful and holistic interpretation of the constitution. It also intends to survey how legal practitioners and other scholars of the law should approach legal issues in the context of the post-2010 regime. Consequently, the paper pays primary attention to the need of a new legal culture of reasoning which requires a complete departure from formalistic approach to substantive reasoning. Similarly, the study suggests a style of teaching law in a legal environment and, finally, considers briefly Emeritus Chief Justice Dr Willy Mutunga’s era of progressive jurisprudence.
In ensuring the vision of the 2010 constitution becomes a reality, the culture of teaching in law schools in Kenya demands moving beyond the traditional canon of knowledge. Legal education must be serious about constitutional dispensation and consciously assume a leading role in ensuring that students, lawyers and judges can participate in the transformative project of our constitution. Although there have been some changes in legal education, the basic script remains the same. A majority of the senior judges in Kenya today and also those who have previously sat on the bench are products of traditional legal education taught during colonial periods.
Because of this historical background, the training policies in the country are borrowed from British Commonwealth approach in terms of curriculum design, arguments and decisions. Law students during commonwealth regime were exposed to formal argumentations and conventional mode of reasoning. Unlike their counterparts in civil jurisdictions, judges and legal practitioners in common law jurisdictions are mainly interested in technicality and principles of law and results achieved. This formalistic reasoning not only affects lawyers when interpreting legal instruments, but also affects the way they present arguments and evidence in courts.
In order to break from this dominant culture of legalistic and formalistic style of reasoning members of legal community must be extra-cautious when approaching and applying legal principles. Consequently, the suggestion proposed here too is that there is need to conceptualise legal education so as to produce critical sense within the curriculum and thereby facilitate a new culture of progressive thinkers.
Khobe, in his commentary on ‘Transformation and crisis in Legal Education in Kenya’ argues that legal education needs to become holistic given the context of the post-2010 dispensation. He suggested that students should be taught how law interacts with other disciplines such as Family and Children’s law, which draw relevance from sociology and psychology; Corporate law, which involves learning different economics theories, models of economics, political economy (incorporate western and non-western Marxism), to enable them engage in substantive reasoning and internalise and appreciate an inter-disciplinary approach to law.
He laments that important facets are currently taught as if the constitution has no influence on the study or the development of statutory, common and customary law. He further holds that teachers of the law must awake up to the reality that Article 20(3) of the constitution demands auditing of the entire body of law to ensure all statutory, common and customary laws are aligned with the Constitution and the Bill of Rights.
Given the high premium that has been placed on the transformative nature of the 2010 Constitution, all laws are affected by the obligation to transform the society. The values generated from legal education should thus be measured against their contribution to new jurisprudence, which is in tandem with the transformation process. Drawing from a critical tradition within the discipline of education, in addition to insisting that legal academics should take their role as teachers/educators seriously, it is helpful in developing an engaged pedagogy and style of teaching that is conterminous with the kind of progressive, social justice-oriented content that should form a core component of the foundational legal curriculum.
Retired Chief Justice Dr Willy Mutunga is lauded as one of the most progressive and transformative jurist whose footprint resembles that of the celebrated CB Madan. In the five years he presided the Supreme Court, Mutunga entrenched the theory of a “holistic interpretation of the constitution”, to serve the country in the path of self-discovery as it continues to implement its constitutional aspirations.
Before the promulgation of 2010 Constitution, Kenya, like most country states, had largely been governed by a post-independence constitution that retained the colonial mind-set in the executive, legislature and judiciary.
Further, Professor Okoth Ogendo posits that post-colonial governance in Africa, even in the presence of written constitutions, was largely marked by a failure of the constitution to check the exercise of power or entrench itself as the grundnorm of the legal system and touchstone for the function of governance.
Mutunga posited that the application of Western canon (mechanical jurisprudence) blindly without proper interpretation of the constitution would eventually subvert the people’s long-term tedious gains of a strong egalitarian society. He heeded the caveat that a post-authoritarian society cannot possibly progress towards egalitarianism if it relied on a system that rigs a transformative constitutional superstructure onto a common law and customary law legal culture inherited from the past.
Judges were encouraged, during his tenure, to develop the law in a way that responds to the needs of the people, and to the national interest in line with the Supreme Court Act – the act establishes elements of robust (rich), indigenous, patriotic and progressive jurisprudence. With the new dispensation, it might have been taken for granted that the history of “unprincipled, eclectic, vague, pedantic, inconsistency” literal and restrictive interpretation of the constitution had gone away.
Within this scheme, the transformative, post-liberal, and horizontal application of Kenya’s constitution is a matter that Mutunga understood well. In “The speaker of Senate vs. Attorney General”, Mutunga secured Kenya’s democratic pedigree. He understood that “constitution making does not end with its promulgation, but continues with its interpretation.”
Additionally, he accurately observed, “constitution-making requires compromise, which can occasionally lead to contradictions and that political moments fertilize vagueness and phraseology of draftsmanship.”
In ‘Communication Commission of Kenya vs. Royal Media Service Limited’, Dr Mutunga cautioned that there is always danger that unthinking deference to cannons of interpreting rules of common law, statutes, foreign cases, can subvert the theory of interpreting the constitution. His warning emerged in light of the fact that most principles and values that found Kenya’s legal system are from English law and they might suppress indigenous laws, practices, traditions and values.
Subsequently, in Jasbir Singh Rai v Tarlochan Singh Rai, Mutunga held, “while our jurisprudence should benefit from the strengths of foreign jurisprudence, it must at the same time obviate the weaknesses of such jurisprudence, so that ours is suitably enriched.” As well, in ‘Gatirau Peter Munya v. Dickson Mwenda Kithinji’, Mutunga affirmed applications to foreign cases had to take into account peculiar needs and context as set out in Section 3 of the Supreme Court Act, 2011. He further emphasized that the constitution cannot be interpreted as a legal-centric letter and text because it is a document having varied content aside of jural phenomena, for which reason references to Black’s Law dictionary would always suffice; importantly, foreign cases had to take local situations into context.
In ‘Judges & Magistrates Vetting Board v Centre for Human Rights & Democracy, Mutunga warned, “a stereotyped recourse to interpretive rules of the common law, statutes or foreign cases, can subvert requisite approaches to interpreting the constitution.”
In the short space of five years, Mutunga established a golden age in the Judiciary by entrenching the culture of indigenous jurisprudence and the celebrated theory of “holistic interpretation of the constitution.”
In the context of 2010 constitution, we must amend our jurisprudential philosophy from traditionalism towards substantive reasoning and application. The form of curriculums administered in law schools should be geared towards producing innovative, critical thinkers and self-conscious lawyers who are alive to the societal needs and realities.
In facilitating the growth of indigenous and progressive jurisprudence, the Kenyan legal community conscious employ decisions and legal resources and energies towards advancing the theory championed by CJ Mutunga. (
– This article was co-written, or with tthe valuable input of Kilonzo Josphat Muuo, (LLM) Candidate for Human Rights at the University of Pretoria.