Aside from the Presidential Election Petition judgement, no finding by the Supreme Court has drawn criticism like the court’s finding in the Munya case that it has jurisdiction in electoral disputes other than presidential elections.
In the ruling on the application for stay of the judgment and order of the Court of Appeal, in Gatirau Peter Munya v Dickson Mwenda Kithinji & two Others, Supreme Court Application No. 5 of 2014; [2014] eKLR, the question before the judges was whether the Supreme Court had appellate jurisdiction in an election petition under Article 163(4) (a) of the Constitution, which confers on the court jurisdiction in appeals involving application and interpretation of the Constitution.
Justices Jackton Ojwang and Smokin Wanjala (the reasoning was later endorsed by the full court) held that the central issue in the petition was whether the election was conducted in accordance with the principles of the Constitution, i.e. the provisions of Articles 81(e) and 86. The Court noted that the issues decided by the Court of Appeal, which were then further brought up on appeal to the Court, rested on constitutional interpretation.
The court observed at Para. 77 that: “…the Elections Act, and the Regulations there under, are normative derivatives of the principles embodied in Articles 81(e) and 86 of the Constitution, and that in interpreting them, a Court of law cannot disengage from the Constitution.”
Thus, the question whether an election was free and fair, under Article 81(e) and accurate, verifiable, secure, accountable, and transparent under Article 86 of the Constitution, would engage the Supreme Court’s jurisdiction to hear an appeal, under Article 163(4)(a) of the Constitution.
This ruling has attracted a barrage of criticisms in opinion pieces in newspapers and social media commentary. Theargument goes that the conduct of elections is regulated by statutory law i.e. the Elections Act and thus electoral disputes adjudication does not involve constitutional interpretation. In this piece I seek to show the genius of the Supreme Court’s reasoning and why the criticisms are founded on a failure to appreciate constitutional theory.
It is a virtual axiom in constitutional law that constitutional norms come in two prototypes: rules and standards/ principles. In her 1991 Harvard Law Review foreword, The Supreme Court 1991 Term—Foreword: The Justices of Rules and Standards, 106 Harvard Law Review 22, 121 (1992) Kathleen Sullivan memorably distinguished between a “justice of rules” and a “justice of standards.” The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision.
Rules therefore draw a sharp line between forbidden and permissible conduct. Rules rely on an ex ante perspective and are therefore considered the domain of the constitutional drafter. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Standards do not draw a sharp line between permissible and impermissible conduct. Standards tend to become concretized by means of specific rules.
Standards therefore often invoke delegation i.e. constitutional drafters instruct the legislature to bring the normative intent into application in specific contexts. Thus constitutional rules, for instance, are said to be appropriate when certainty, uniformity, stability, and security are highly valued, whereas constitutional standards are seen as more appropriate when flexibility, individualization, open-endedness, and dynamism are important.
This insight leads us to know that the provisions of Articles 81 (General principles of the electoral system) and 86 (Obligations of the electoral commission during voting) of the Constitution are standards/principles and not rules. Parliament was empowered by Article 87 (1) of the Constitution to enact the enabling legislation and consequently, the Elections Act as well as the Rules and Regulations made there under came into being.
This helps us to delineate the question that the judges faced: what status to accord to interpretation of the rules (legislations) that have been enacted in furtherance of constitutional standards/principles? In a sense, by setting broad standards, the Constitution does not disengage from regulating a particular area, in this case the conduct of elections.
Thus unlike with constitutional rules where there is no direct constitutional seepage into legislations and thus it is tenuous to argue that the constitution regulates that particular subject, with constitutional standards the normative derivatives (legislations and subsidiary legislations) can be perceived as a continuation of constitutional regulation of a particular subject area.
The question that follows is how should judges interpret these legislations derived from constitutional standards/ principles? As Sullivan writes, “A justice of standards” prefers “to collapse decision making back into the direct application of the background principle or policy to a fact situation.” Building from the work of Sullivan, Aharon Barak notes in The Judge in a Democracy that “It is also important to distinguish between a statute based on rules and a statute based on principles or standards. My approach is to give great weight to the intention of the legislature in interpreting a rule-based statute and great weight to the principles of the system in a more policy-oriented statute.
The reason for this approach is that under a statute establishing rules, adjudication usually must draw a clear line between what the statute forbids and what it permits, and that distinction can be derived from legislative intent. By contrast, a statute that formulates principles or policies prescribes an ideal to be achieved. This ideal operates within the framework of the legal system, is shaped by it, and in turn influences it.”
In the end, the judges of the Supreme Court find support from some of the leading constitutional law theorists of our time (Laurence Tribe of Harvard Law School famously called Sullivan “the most extraordinary student I had ever had” while Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit and an authority on jurisprudence has remarked that “if there were a Nobel prize for law, Barak would likely be among its early recipients”) that in interpreting legislations derived from constitutional standards/principles you are not to disengage from the Constitution.
The approach by Justice Ojwang and Smokin is sound in constitutional theory. This leads to the question, to borrow from C.F. Forsyth ‘In Danger for Their Talents’, are the Supreme Court judges being criticized for proper appreciation of constitutional law ?.
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