By WALTER KHOBE
The normative grounding of the 2010 Constitution sought to deal with three “sins” that have historically bedevilled the Kenyan judiciary. These “sins” are: corruption, executive mindedness, and formalist/legalistic reasoning. While the post-2010 judiciary has, to a large extent, tried to reverse the legacy of the judiciary with respect to the first two, the “sin” of pathological formalism and amoral legalism is still ingrained in Kenyan legal culture and endures in the post-2010 dispensation.
This was evident in the recent Supreme Court decision in ‘Hon. Martha Wangari Karua v the IEBC and 3 Others’, Petition Number 3 of 2019. The unbearable injustice in the Karua case stems from the fact that the Petitioner lodged the suit within the legally stipulated timelines. Then the Respondents lodged a Preliminary Objection on the competence of the suit. The Court upheld the Preliminary Objection and struck out the suit without hearing on merit. Subsequently, Hon. Karua lodged an appeal to the Court of Appeal which was determined in her favour. The Court of Appeal found that the Trial Court erred in striking out the suit.
In an emancipatory ruling, uncharacteristic of Kenyan courts in terms of the legal philosophy adopted, the Court of Appeal bench of Justices Warsame, Musinga and Ouko, held that the Trial Court should hear the dispute on merits, this despite the fact that the six months statutory timeline had lapsed. On the way to making that determination, the Court of Appeal in a nuanced finding rendered itself thus:
“We say so because our current constitutional dispensation leans towards determination of disputes on merit. Therefore, taking into consideration our historical background which is replete with determination of disputes on technicalities, and now the legal underpinning provisions of superiority of our constitutional value system, we think that the route taken by the learned judges to dismiss petitions on technicalities that do not affect the jurisdiction is not a reflection or manifestation of our current jurisprudence and justice system.”
Indeed one could go so far to say the superiority of the constitutional value system is the central premise or foundation of our 2010 Constitution.
The elevation and prominence placed on substantive justice is so critical and pivotal to the extent that Article 159 of the Constitution implies an approach leaning towards substantive determination of disputes upon hearing both sides on evidence.”
Such an emancipatory reading of the law was also the standpoint in ‘Charles Kamuren v. Grace Jelagat Kipchoim & 2 Others’, Civil Appeal No. 159 of 2013; where the Court of Appeal (Nambuye, Musinga & M’inoti JJ.A) held thus:
“ Turning to Article 105 of the Constitution which requires the High Court to hear and determine an election petition as to whether a person has been validly elected as a member of parliament or whether a seat of such a member has become vacant, within a period of six months of the date of lodging the petition, we are of the considered view that where such a petition had been struck out and an appeal against such an order this Court finds that the petition ought not to have been struck out, the Court has power to direct the High Court to hear and determine the petition, even if the six months period stipulated under Article 105 has lapsed. In such an instance, it cannot be argued that the constitutional period for hearing and determining the petition has already lapsed. The period of six months shall begin to run from the date of delivery of the judgment by the appellate Court. It would occasion great injustice if a successful appellant, (that is, one whose election petition is found to have been wrongfully struck out), were to be denied the right to be heard simply because the appeal is determined after six months from the date the petition was lodged.”
The point the Court of Appeal judges made was that judges must always remember that formalism/legalistic reasoning is the antithesis of substantive reasoning decreed by a transformative constitution.
However, when the matter subsequently found its way to the Supreme Court, the bench unanimously held that election petition timelines are non-negotiable and would be upheld even if it means driving an innocent litigant from the seat of justice. To quote the Court: “We sympathise with the Petitioner who, without any fault of her own, has been locked out of the seat of justice.” In effect, the Supreme Court held that while it can see the injustice that the interpretation it had adopted caused to Karua and was sympathetic to her plight, the court’s hands were tied and must mete out the injustice. All this despite the acknowledged finding by the Supreme Court that failure to hear the Petition on merits was caused by the Trial Court and not the innocent litigant.
Kenya’s legal culture
It should be reiterated that Kenyan legal culture is highly formalistic/legalistic and boasts a strong positivistic commitment to the application of the law as the command of the sovereign, not as reflecting normative aspirational claims. As an historical digression, the Kenyan pre-2010 judge slavishly followed the letter of law, lending legalistic cover to authoritarianism. The colonisation of Kenya and the imposition of colonial law in the colony led to the development in Kenya of a legal culture heavily influenced by crude Benthamite and Austinian positivism and mechanistic formalism. The core positivist notions of law as the command of the sovereign and the separation of law and morality (values) became frozen in the conditions of colonial and post-colonial Kenya, so that Kenyan legal professionals largely missed out on the Hartian development of positivism in the 1950s and 1960s. As far as most Kenyan judges, law scholars, and advocates are concerned, legal (constitutional and statutory) interpretation is a mechanical operation in which value judgments play no part.
This historical problem was captured eruditely by the Judges and Magistrates Vetting Board, formed to look into the suitability of Judges and Magistrates who served in the pre-2010 dispensation to continue serving in the post-2010 dispensation. In JMVB Report No 4 of 2012, the Board aptly observes:
“15. Without doubt, respect for the rule of law is fundamental to the achievement of the democratic transformations envisaged by the Constitution, including those of the judiciary. Far from seeking to be exempted from having to show respect for this principle, the Board should itself be exemplary in manifestly adhering to it. The question before us, then, is not whether the rule of law must be upheld; clearly it must. The Board is duty-bound to function at all times in a manner that shows fullest respect for the rule of law. The real question is what is meant by the rule of law, and, more particularly, how rule of law principles are to be understood and applied under the new Constitution.
16. Chapter 10 of the Constitution, entitled “Judiciary”, contains a large number of provisions intended to create a judiciary that, by correcting and transcending the deficiencies of the past, would come to enjoy the confidence of the public and become a central element in the new democratic dispensation… The courts and the tribunals are required to exercise their judicial authority in a manner that ensures that justice is done to all irrespective of status, that justice is not delayed and that justice is administered without undue regard to procedural technicalities.
17. …The raising of technical and procedural questions was a particularly strong weapon in the armoury of those who sought to defend the powerful and the wealthy with the connivance of compliant judges. Substantive questions could be evaded and matters left to drift in the courts for so long that outcomes became irrelevant. Reliance on ultra-technicality was used to impede the work of agencies set up to investigate malfeasance by those in positions of authority. Far from furthering the rule of law, these narrow, technical rulings, issued in the name of legality, contributed massively to the prevalence of impunity. Indeed, they undermined the rule of law, promoting a spirit of lawlessness that proceeded from the highest in the land all the way down.
18. None of this is to say that rigour in maintaining legality and following proper procedures should be discarded in the name of achieving substantive justice. It is simply to emphasise that in interpreting and implementing legislation, the rule of law requires that the objective at all times should be to achieve the vision of justice proclaimed by the Constitution. Thus, adherence to the rule of law under the Constitution would require: (i) expansive interpretations of the law that favoured national values and the social objectives set out in the Constitution, and worked towards ameliorating the conditions of the underprivileged and the marginalised groups referred to in the Constitution; and (ii) purposive interpretations of statutes that promoted coherent functioning of the legislature in keeping with constitutional objectives.
Seen in this light, the vetting process is not inherently threatening to the rule of law or intrinsically violatory of judicial independence. On the contrary, its objective is to help preserve a judiciary that the public believes will fearlessly uphold the rights of all in society, particularly those whose rights have most been disregarded in the past. It is to remove the taint of being seen as a judiciary that is corrupt, unduly favourable to those in power, obsessed with technicalities, incapable of dealing with cases with requisite promptness and generally unable or unwilling to administer justice in an appropriate manner. And it is to enable the many conscientious judges on the Bench to hold their heads high in the knowledge that the public trusts them and believes in their capacity to do justice.
19. To sum up: the Board believes that legislation should be interpreted in a purposive manner, consistent with the achievement of constitutional goals. Furthermore, it should be presumed that those tasked with implementing the law will do so in a manner that respects fundamental rights and natural justice.”
Interpretive methodology and its faults
The Supreme Court rendered itself thus in the Karua Case:
“We still hold the position that the period provided for the settlement of electoral disputes cannot be extended by any Court and we see no reason to depart from that position in this or any other case… Section 75 undoubtedly derives its authority from Article 87 of the Constitution which requires timely resolution of electoral disputes. We have already explained why there was a need to provide for defined timelines for settling electoral disputes. As such, we hold and maintain our position that once an election petition is filed at the High Court sitting as the Election Court, it must be determined within a period of 6 months. In that regard, our position resonates with the Judgment in ‘Gerald Iha Thoya v. Chiriba Daniel Chai & Another Election Appeal No. 1 of 2018’ in which Korir J, pronounced himself as follows:
“The reference point is the date the petition is lodged. The calendar is not shifted by the conduct of the parties and neither can it be breached by the actions of the election court. The period is cast in stone and once the six months lapse the election court no longer has any powers to hear and determine the election petition. It must down its tools without prompting.”
Our holding above brings us to a more difficult question which is what happens, as in this case, where the six months’ period lapses as a result of an appellate process which was necessary for the enforcement of a litigant’s right of access to court. Is there any exception to the position we have already taken?
In Gerald Thoya, Korir J also proposed that all applications ought to be heard together with the substantive matter and even if a Court were to strike out the petition, it should still determine other issues since the actions are subject to appeal. In such a case, all applications would then be considered as a response to the petition including an application for striking out thus saving time and meeting the 6 months’ deadline.
In this case, we have noted that the High Court determined the petition before it after the lapse of six months from the date of filing. That was an affront to the Constitution and the enabling electoral laws. As such, I agree with the Court of Appeal that the said High Court proceedings were a nullity.
The rationale proffered by the Supreme Court is quintessential legalistic reasoning! This discredited mode of interpretation as evident in ‘Karua v Waiguru’, characterised by reciting of value-free positivist mantras, proves largely that Kenyan judges are unwilling to do away with the emphasis on formalist and legalistic interpretation of law despite the injunction by the Constitution at articles 10, 20(3) (4), 159 and 259 that judges should adopt a values-conscious, post-positivist and anti-formalist approach to adjudication. Chris Thornhill in ‘The Sociological Origins of Global Constitutional Law’ in Alberto Febbrajo and Giancarlo Corsi (ed.) ‘Sociology of Constitutions: A Paradoxical Perspective’ (Routledge: 2016) upon reflecting on the Kenyan Constitution has explained the methodology and interpretive criteria required by the 2010 Constitution as follows:
‘Article 259 of the Constitution accord[s] a distinctive purposive role to the judiciary and directs the judiciary to promote the values and purposes inherent in the Constitution, and to develop the law… These provisions were intended, at one level, to elaborate the law as a normative foundation for social life. But they were also intended to emphasise the transformative role of the judiciary in social life’.
The Supreme Court, by anchoring its opinion on the claim that it is enforcing the legal timelines in the statute and envisaged by the Constitution failed to appreciate the distinction between formal and substantive notions of legality. Justice Dikgang Moseneke in ‘Shades of the Rule of Law and Social Justice’ points out that a formal articulation of the rule of law translates to, first, the existence of a rule-oriented legal system and, second, adherence to these rules. This approach emphasises the existence of formalised norms rather than their purpose and substance. On this take, the threshold for good law is superficial and low. The rule must be law properly adopted by a competent authority; the law must be made public. It must be clear and understandable and must ordinarily regulate future conduct. On this notion of the rule of law, the substance of the law is immaterial and the fairness of outcomes it produces is irrelevant. This shade of the rule of law is animated by legal positivism. This “amoral legalism” and pathological formalism leads to the familiar escapism that “the law is the law, even if it is an ass.”
As evident in Articles 10, 20(3) (4), 159 and 259 of the Constitution, Kenyans made a different jurisprudential election at the “zero hour” in August of the year 2010. Kenyans embraced a substantive shade of the rule of law that focuses, not on the existence of rules, but on their content, purpose and impact. More explicitly, the content of the rule, the purpose for which it is harnessed and the impact it has, direct or indirect, must not offend the normative scheme of our supreme law. Thus a court cannot ignore the context within which Karua’s petition was not heard and determined on merits and adopt an interpretive choice that results in manifest injustice and claim that such a reading of the law is compatible with the constitutional goal of creating a just society.
It is the position of this commentary that the construction of the constitutional and statutory provisions adopted by the Supreme Court is unconscionable and invariably leads to unsolvable absurdities. The Court took a simplistic approach by simply isolating Article 87(1) of the Constitution and section 75 of the Elections Act, which prescribe the time limit within which to hear the petition, from other related provisions within the Constitution.
The decision by the Court to ‘dismiss’ the petition without it being heard was an abdication of the Court’s Constitutional duty. The decision not to hear the petition ostensibly due to the set time limit led to the absurdity of complying with a deadline but without the purpose or intended event having taken place. A judgment that purports to comply with a legal technique, dissociated from the intended substance of the law, to borrow Professor Ben Nwabueze’s words, “is like a person embarked upon a journey and yet with no clear direction as to which way to go and no idea where he is going…it is like a boat adrift in the sea.”
It is a well-established principle that a Constitution should be read as a whole and no provision should be read in isolation. The Court ignored this approach and decided to decree that the petition should not be heard on the basis of isolated provisions, without regard to other related provisions which might have cast more light on those provisions. Article 10 of the Constitution lists national values and principles, which include social justice, democracy, and constitutionalism as well as good governance and integrity. Articles 10, 159, and 259 of the Constitution provide that the national values and principles shall apply to the interpretation of the Constitution. The Supreme Court never referred to these provisions. Its decision certainly does not advance the constitutional values as required by the Constitution. Not hearing a validly filed petition does not advance democracy, constitutionalism, good governance and integrity.
Article 159 of the Constitution makes it clear that judicial authority derives from the Kenyan people and should be exercised in a just manner that shall promote accountability. The Judiciary, in exercising its authority, is enjoined to ensure that ‘justice shall be administered without undue regard to procedural technicalities.’ Noone who approaches the Court should be prevented from stating their case and having the case determined on its merits.
Justice must be dispensed without being inhibited by procedural technicalities, or as Justice Niki Tobi of Nigeria stated, ‘the court must pursue the substance and not the shadow.’
The Supreme Court simply went for ‘finality’ without endeavouring to ensure the litigants got justice from the courts. In the end, the judges of the Supreme Court failed to heed the compelling advice of Lord Atkin: ‘Finality is good, but justice is better.’
The kind of reasoning in the Karua Case is largely informed by Kenya’s legalistic, positivist, and formalistic legal culture. It is truly an exasperating feature of juridical reasoning in Kenya that judges can still adopt unjust interpretive choices, because of the formal character of Kenya’s legal culture, regardless of its inherently arbitrary outcomes and the negative impact of those interpretive methodologies. (
Writer is a legal scholar. He teaches at Moi University