Illiberal decisions from a liberal constitution

The High Court in the Gay rights case did not only misapply the constitution, it misidentified it

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Activists in court during the hearing.

By Shadrack Muyesu

EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) in which the High Court upheld the constitutionality of Sections 162 and 165 of the Penal Code criminalising homosexual relations was an important decision, not just because it interrogated the contentious issue of gay rights but more so, because it presented an opportunity for the Court to affirm the Constitution of Kenya, 2010, as a liberal democratic constitution. Simmering below the issues was a contest between whether the Constitution should be applied in light of acceptable public morality or whether jurists should rise above the politics of society and apply the law as it is. 

In one part the petitioners argued that the Court shouldn’t be influenced by morality and general public sentiment and that the contested provisions should only be considered against the lofty standard of the Constitution. In a rejoinder, the respondents urged the Court to consider the history of the Constitution and apply it in its cultural context. While both arguments are valid, the nature of the Constitution ought to be the one which holds sway.

Public morality

The idea of an acceptable public morality has its origins in the works of Emile Durkheim. According to Durkheim, punishment strengthens community bonds by affirming what is acceptable and moral. Laws reflect public sentiment and a general consensus that the public abhors certain behaviours. Therefore, to create a law that departs from this general consensus is unacceptable as it an attempt to re-order society. 

A criticism of Durkheim is his assumption that all laws are publicly promulgated. Take the Penal Code for instance; Durkheim would assume that the people had a direct input in the drafting of its provisions. While one may argue that in a representative democracy, the law from the law makers is an accurate representation of the social pulse, it’s also plausible that the law makers will depart from the Society’s wishes and legislate to suit their nefarious intents. It’s a growing phenomenon in Kenya. Not only so, the idea of citizen input in legislative processes is a fairly recent phenomenon. For the longest time, the law was as determined by the Prince: and even as deliberative democracy is concerned, public participation only emerged as a legal demand with the 2010 promulgation of the Constitution. The Penal Code existed long before then.

Nevertheless, it is indeed true that in a large part, the Penal Code accurately reflects our public morality. As a social contract, the Constitution, it ought to follow the same trend. Unfortunately, it does not.

Evolutionist judges propose that words and phrases within statute be given the prevailing societal meaning. It’s evolutionism that caused the judges to misapply the values and principles articulated in the Preamble, Article 10, 159 and 259.

Democratic constitutions should be separated from liberal democratic ones. The former are what the respondents speak of.  They are a concession between the governors and the citizens in which the citizens accept to be governed by (the governors) who in return are duty bound to carry out the wishes of the majority. In other words, the majority rules and the minority have no say. The liberal democratic constitution on the other hand is one which accepts the rule of the majority yet protects the minorities and even prefers their opinion when it makes constitutional sense to do so. As a result, it is likely to accommodate interest and processes that the larger public wouldn’t approve of.

The provision establishing Kenya as a secular state is a one example. What this ought to mean is that there is no state religion and if international best practice is to offer any guidance, that religious undertones are prohibited from public functions (see Lemon v Kurtzman 403 US 602). The reality is rather different. Prayer is not only a critical segment of government functions, the vast majority of citizens ascribe to certain accepted religions while frowning on others. Gay rights would be another but for the erroneous determination of the Court. For liberal democracies, the constitution and not the people is king. 

To aid these objectives, the liberal democratic constitution employs a number of tools. The first is a deliberative set up which mandates citizens’ participation in legislative processes: the people are not just rubberstamps. The second is a Diecian rule of law which calls for the obviousness of the law, its supremacy above all else and an equality (before the law). And finally there is a separation of powers principle which creates institutions operating independent off yet in collaboration with each other. At the heart of it all is an empowered judiciary whose function is to apply the law scrupulously and without undue regard to political concerns (far from meaning that the judiciary is apolitical, this only means that the politics are considered necessarily so as not to render impossible judgments, within acceptable judicial norms and blindly so as not to demonstrate an obvious bias for the prevailing powers). 

There is no place for populist decisions for a court living in a liberal democracy. Decisions have to be legally justified as opposed to relying on the shifting sands of morality. 

This is where the learned judges went wrong. For starters, they agreed with the respondents in misrepresenting the Constitution as merely democratic. It is true, as the Court observed at paragraph 379 that the Constitution is a mirror reflecting the national soul, the identification of the ideals and aspirations of the nation; articulates the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must therefore preside and permeate the process of judicial interpretation and judicial discretion. What is not true is a subsequent conclusion at paragraph 390 that the Constitution did not accommodate same sex unions and therefore did not envisage gay rights. 

As already stated, the Constitution does not only fight for the majority, it also protects minorities, however unpopular. Liberal democracy emphasises individual autonomy. Liberalism means the right of everyone to peacefully co-exist and it is the message repeated throughout the Constitution. Inter alia it establishes a lofty standard to be met before a right can be limited; prohibits discrimination on any ground, identifies rights as God Given as opposed to being donated by the Constitution and requires that the law be interpreted in a manner that favours rather than limits the application of rights. This is the true spirit and tenor of the constitution.  

The problem of evolutionism

Evolutionist judges propose that words and phrases within statute be given the prevailing societal meaning. Since this definition is dependent on society, the meaning of words and phrases and therefore the import of statute is bound to shift with the evolution of society and changes in the Bench. In the long term, applying this method, jurists not only end up replacing the written code with an uncertain, unwritten one, they also commit the grave error of moulding the law in their favour and creating (a law) that is totally different from what was originally meant. In so doing, they usurp the people’s sovereign power to legislate.

It’s evolutionism that caused the learned judges to misapply the values and principles articulated in the Preamble to the Constitution, Article 10, 159 and 259. To justify this error, its evolutionism that caused him to rely on public morality rather than the clear wording of Article 27(4). Therefore while the respondents accused the petitioners of trying to amend the law through the back door and inducing the Court to do so ultra vires, it is they that caused the Court to assume extra powers and amend Article 27(4) of the Constitution. Far beyond the illegal amendment, the court had failed to strike a blow for liberal democracy. To reduce the progressive constitution to a mere democratic one was a grave sin. (

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