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Adopting transformative adjudication in the wake of transformative constitutionalism

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By Dennis Ndiritu

The Constitution of Kenya was enacted in 2010. It has been termed as a transformative constitution because its architecture and design is meant to address historically ignored wrongs. 

Walter Khobe in his article, ‘Reflections on five years of Transformative Constitutionalism in Kenya: Chimerical or viable?’ notes that the present Constitution was developed with a historical and social background, to address the authoritarian regime of law epitomised by human rights abuses, social exclusion, unequal power relations and arbitral dispossession of property among other numerous wrongs. It doing so, it established institutions meant to assist in this agenda. Such institutions include a new judicial architecture comprised of the Magistrates Court, High Court, Court of Appeal and the Supreme Court. The three superior courts have made decisions over time that have been lauded as progressive while others that have been deemed retrogressive in the wake of the implementing this new dispensation.

Khobe propounds the argument that the strength of transformative adjudication rests not in judicial pronouncements, but in the actual interpretation and adoption of these pronouncements. ‘Luka Kitumbi and 8 others v Commissioner of Mines and Geology and another’ cc No 190/2010 places transformative adjudication on a very high pedestal on constitutional litigation by requiring judges to reconnect matters before them with the letter of the constitution. It is therefore imperative to note that transformative adjudication espouses the idea of a departure from a formalistic approach to law to that of substantive reasoning of law, blended with a great touch of value-laden reasoning.

Post-2010 jurisprudence

The promulgation of the 2010 Constitution marked the beginning of a new journey aimed at a judicial address of historical injustices through a transformation formula from the formalistic culture of legal reasoning prevalent in the old order of authoritarianism, to a culture of justification robed in the aspirations of the new document aimed at achieving the ultimate goals of a transformative constitutional dispensation, notably equality and human dignity.

In ‘Re: Interim Independent Election Commission’ [2011], the Supreme Court demonstrated an urgency to shift judicial philosophy from formalistic reasoning to substantive approach to constitutional adjudication, where the court set out to constitutionalise ‘substantive reasoning’. In this decision, it reflects that for a transformative adjudication towards a transformed society, the courts have to note that history is addressed. 

The High Court appreciated non-juristic aspects, such as historical context of electoral process, as being important to giving effect to the constitutional command of standard and integrity in the elections. Article 259 (1), on the other hand, places an obligation on judges to construe the constitution in a manner that furthers the values and principles of the constitution. This requires judges to adopt new approaches to law, with the recognition that legal text do not speak for themselves; rather, judges must engage with these texts to interpret and produce meaning to them in fulfilling the transformative mandate of this charter.

Justice Jackton Ojwang has acknowledged the reliance of this transformative mandate on the effective working of the judiciary, noting that the constitution is dependent on a robust and progressive judiciary for its implementation. The judge, in this context, recognizes that a transformative constitution does not implement itself, as implementation falls on the various stakeholders of this new dispensation. Courts should therefore not only be the final voices on constitutional disputes, but should also approach them from a substantive reasoning angle and act as a strong propulsive force for the implementation of the Constitution, through progressive and transformative adjudication. 

Substance over process

In ‘John Kabui Mwai and 3 others v Kenya National Examination Council and 2 others’, the court opined that socio economic rights should uplift human dignity. Walter Khobe in ‘The court of Appeal is Failing to Give effect to constitutional Aspirations,’ while commenting on this case, noted thatthe interpretation of the right to education together with the requirement for the value of human dignity, highlights “substantive, value-laden reasoning” by the court. Transformative constitutionalism highlights the need to re-envision the role of judges and the process of adjudication in a manner that furthers the visions of the constitution through such avenues as a simplified judicial process. This was the idea behind a drafting of simple civil procedure manuscript in line with Article 159. 

Former Chief  Justice Willy Mutunga postulated that judges need to develop the law in a way that responds to the needs of the people and national interest as per the Supreme Court Act and the Constitution. Thus, Courts have to be foot-soldiers in the implementation of the Constitution by undertaking a purposive approach towards realising the aspirations of Kenyans

Our courts have come a long way in judicial reasoning. Much more is left to be done but we look forward to what the future has in store

Substantive reasoning 

To give credit where it is due, it could be said that a lot more judges engage in substantive reasoning. The superior courts have resorted to an interpretation of reason rather than the formalistic approach that was prevalent before 2010. Substantive reasoning looks at both the political and moral values of a decision that is to be reached in adjudication. The Courts have, since the promulgation of the Constitution, embraced reasoning that does not impose the law as it is (positive) but by also looking at its moral consequences in regard to political obligations. This interpretation based on creativity and conscious judgments, which could revolutionise deep-rooted authoritarianism – is to be lauded. In a meritorious jurisprudence that has seen a revolution of status after 2010, there has been a significant shift from formalistic to substantive reasoning by courts, particularly in addressing the following issues.

Locus standi

The legal right to bring a matter before a court of law is concerned with procedural justifiability. Before 2010, the courts followed a restrictive approach to standing. They insisted that a person who approached the court for relief must have both a personal interest in the matter and be adversely affected by the wrong alleged. A plaintiff or applicant could not approach a court on the basis that the defendant or respondent was doing something contrary to the law and that the public interest demanded that the court grant appropriate relief. A plaintiff or applicant who lacked a personal interest would have no locus standi, to institute a suit. 

The strict application of this rule resulted in a number of suits not being heard on their merits, for, quite often in such cases, the danger or harm was not attributable to any specific individual or entity. In ‘Prof Wangari Maathai v Kenya Media Trust Corporation’, the plaintiff went to court to stop the proposed building construction of a multi-storey skyscraper at Uhuru Park. The Court dismissed the suit on grounds that she had no legal standing to bring the matter into court. The court reasoned out that in case of a violation in the environment affecting the public generally, then the person with an interest and the right to sue was the Attorney General, not a private citizen. This position has been changed under the new dispensation where the courts have held – thereby breathing life into Articles 258 and Article 22 – that any individual or person can access the courts and litigate a matter that touches on their rights and that of the Constitution. 

This was illustrated in ‘Mumo Matemu v Trusted Society of Humans Rights Alliance and 5 others’, wherethe Court of Appeal took the position that the constitutional has liberalized locus standi and introduced a broader approach to locus standi, thus allowing people to approach Courts to enforce the terms of the Constitution. In ‘Trusted Society of Human Rights and others v Attorney General and 3 others’, the Court stated that locus standi for the applicant was not inadequate and it did not require direct consent for representation from the Rift Valley Agricultural Consultants Limited (RVAC) because the applicant was a human rights solicitor for the society acting on public interest. This assertion gives citizens the leeway to have crucial matters and opinions addressed by the courts seek requisite reliefs. It is a great shift towards substantive reasoning.

Affirmative action through gender equity

In the ‘Matter of the Principle of Gender Representation in the National Assembly and the Senate’,  the court adopted a pragmatic approach that avoided crises in the interpretation of the Constitution by postponing the compliance with the gender quota requirements in the composition of the parliament and, at the same time, developing the law by requiring that the principle stipulated under the Constitution requiring that all bodies should have not less than a third of members of any gender be realised progressively by August 2015, thus ensuring that all the aspirations of gender equity do not become illusory. The decision was a departure from formalism, and an advancement towards substantial reasoning.

Issuance of court orders

The Judiciary has been, for a long time, been viewed as toothless bulldog. In the administration of justice, the pecking order has been widely viewed as placing the Judiciary as third, after the Executive and Legislature, due to its inability to ensure that the decrees it gives are implemented. In circumstances that would be viewed as inconsistent with the demands of the two other organs, judicial decrees have always been casually dispensed with as the tradition of disobeying court orders ran deep and the roots scattered into the society such that contempt of court orders was considered a far a lesser crime despite is negative implications in the quest for governance based on the rule of law. 

Addressing itself to this vice, the High Court in ‘Republic v Attorney General and Another ex-parte James Alfred Koros’,issued an order of mandamus compelling the Attorney-General to pay the applicant the ordered sum. In doing so, the Court underscored the importance of court orders in offering effective remedies to litigants.  Subsequently, the High Court, through Justice Chacha Mwita in the Miguna Miguna Case, issued summons to the Inspector-General of Police and the Minister for Interior and Coordination of National Government to appear in court and explain why they disobeyed a directive to produce Miguna Miguna in court when ordered to do so. This was reiterated in ‘Nancy Makokha Baraza v Judicial Service Commission & 9 Others’ (2012), where the Court stated, “The New Constitution gives the court wide and unrestricted powers, which are inclusive rather than exclusive, and therefore allows the court to make appropriate orders and grant remedies as the situation demands and as the need arises…”

Effectively, in a claim of violation of the constitution, the court has sufficient power to grant any appropriate remedy, including an order of judicial review. Prior to promulgation in 2010, judicial review took place along the common law grounds mainly derived from the British legal system such as “proportionality… legitimate expectation…reasonableness… and principles of natural justice.”

Because the constitution now gives the judiciary broad jurisdiction to rule on the constitutionality of legislative and administrative actions through the power of judicial review, this concept has evolved from a common law foundation to a constitutional principle with five major dimensions: fairness in administrative action under Article 47; protection of the constitutionally guaranteed fundamental rights and freedoms in the Bill of Rights; judicial review of the decisions of tribunals appointed under the Constitution to consider the removal of a person from office; jurisdiction on questions of legislative competence and the interpretation of the constitution; and supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. 

In Nancy Makokha Baraza v Judicial Service Commission & 9 Others (2012) the dictum of the Court suffices to show that in a claim of violation of the constitution, the court has sufficient power to grant any appropriate remedy including an order of judicial review. This is evidence of a shift to substantial judicial review reasoning as a remedy to constitutional violation.

The judiciary’s hesitant tendency towards substantive reasoning anchored can only be actualised if we remain vigilant and guard against a slip-back to the old, tired schools of thought”

But, even with all these gains and progressive shift from formalistic to substantive reasoning, there still remains work to be done to achieve a complete overhaul. For instance, the Supreme Court, in ‘Frederick Otieno Outa v Jared Odoyo Okello & 4 others’, the majority rather than adopt substantive interpretative reasoning, limited their interpretation of “public officer” to be technist, literal and formalist. Njoki Ndung’u’s dissent takes into account the historical injustices associated with public officers and invokes the constitutional values, principles and aspirations in defining what a public officer is, an exact application of substantive reasoning. 

In ‘Evans Odhiambo Kidero & Another v Ferdinand Ndung’u Waititu & others’, the classification by the majority opinion of the respondent’s appeal as incompetent because it was time barred even after the High Court acknowledged that the delay was the Court’s mistake is a formalistic approach to reasoning. Again, Justice Njoki Ndung’u dissented with the majority bringing in a substantive reasoning approach that does not proffer technicalities (duration for filing appeal) over substance (merits and facts of the case). 

In ‘Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & others’, the majority hopped into a refusal to dismiss an appeal that they had not determined whether it had been filed procedurally, on the leanings of Art 159(2) (d) and Rule 3(5). This, in my view, was a return to the formalistic approach to constitutional interpretation, which, in this case, was applied selectively to one party, and which, read with the above decisions, does not augur well for the quest justice at the superior courts.

From the ensuing discussion, there would seem to be a clear shift in judicial philosophy in our superior courts –towards substantive reasoning anchored in value laden transformative adjudication. But this can only be achieved if we remain vigilant and guard against a slip-back to the old, tired schools of thought. Our courts have come a long way in judicial reasoning. Much more is left to be done but we look forward to what the future has in store.

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