By Daniel Benson Kaaya
The majority decision in ‘Simon Mbugua & another v Central Bank of Kenya & 2 others  eKLR’ in respect with the issue of whether the design of new Kenyan currency notes violates Article 231 of the Constitution, especially the design of the one thousand note, perpetuates and irrigates the mischief that the Constitution of Kenya, 2010 intended to uproot. The purpose of Article 231(4) was to exclude from the design of any notes and coins the likeness or depiction of any person. The purpose is to depart from personal branding and adoration of individuals through the Kenyan currency as the Petitioners correctly put it.
In their analysis, the majority employed two approaches which are essentially complementary to each other in the attempt to interpret Article 231(4). First, the Court belaboured to differentiate by way of definition the following; an image, portrait, statue, sculpture, and sculpture-portrait. Admittedly, as a matter of English definition, there is a semantic difference. Second, it is evident that the majority decision relied on the literal approach to the interpretation of the law.
The first approach validates the second one in the Court’s attempt to adjudicate that there is a difference between an image and a portrait and that the impugned image was not a portrait but an image. This is evident in Paragraph 121 where the majority mulched the mischief comprehensively by rendering, “We thus find that it would be a strained construction of Article 231 (4) of the Constitution to say that the image is a portrait.”
Under the literal rule, the legal text is conferred its natural and ordinary meaning. This approach limited the Court to interpret whether the impugned image was a portrait (which is prohibited) and an image (which is permitted if it symbolises Kenya or an aspect of Kenya). This approach is limited in various respects including advancing manifest absurdities. The reason is that the literal approach does not involve the interrogation or inspection of the drafter’s purpose or intention in the legal text. Due to its iconic inefficiencies, progressive courts have turned their interpretative compass towards the purposive approach to the interpretation of the law. Purposive construction of the law requires an interpreter of the law to interpret the law in light of the purpose for which it was enacted.
The purposive construction with respect to Article 231(4) aims at de-personifying the Kenyan currency. Therefore, the literalism in interpretation and semantic examination of the provisions is curious and mainly aimed at usurping and/or ousting the purpose and the spirit of Article 231(4). The elementary rationale is that both an image and a portrait depicts the likeness of the subject, meaning from both an image and a portrait, any person of average observational skills can make out whom the image or portrait resembles. Mrima J, in his dissenting judgment in Paragraph 8 correctly observes, “the image is easily recognisable as that of the Founding Father of our nation. It is also enlarged and is not proportional to the tower.”
Curiously, in Paragraph 120 the Court admits that the impugned picture is that of the first President from head to his feet. In its admission, the contention of the Court is only that the Petitioners have failed to demonstrate that the impugned picture amounts to a portrait or a sculpture-portrait. A literal construction of the law upholds technicalities (as in this instance) in the text of the law which then bears manifest absurdities – for instance, seeking to differentiate a portrait from an image, despite the two being artistically different and have essentially the same function to depict the outlook of its subject. Thus, in the purposive construction of Article 231(4) the drafters intended to exclude any depiction of a person from notes and coins notwithstanding the nature, prominence or presentation of that depiction.
There is a consensus by the Court that the impugned image is part of the KICC complex. Interestingly, the majority decision admits in Paragraph 116 that the image of the statue has been given great prominence on the notes than the KICC tower; however the court notes that the image does not appear in isolation or independent of the complex. Technology in photography has advanced apace over the years and it is possible to have a picture of the KICC, as a whole, from an angle that does not enhance grievous mischief such as this. Rendering great prominence of the statue on the one thousand note it is disingenuous, mischievous and calculated to infringe on Article 231(4) of the Constitution.
The permissive part of the provisions is qualified; it is only permitted to the extent that the image depicts or symbolise Kenya or an aspect of Kenya. This then begs the question of what symbolises Kenya or an aspect of Kenya. Article 9(1) of the Constitution and the Second Schedule to the Constitution provides for National Symbols. They include the national flag, anthem, coat of arms, and public seal. KICC, being a gazetted monument, would suffice. However, it has been manipulated to give great prominence to the impugned image and there lies the mischief.
From the dissenting judgment, the learned justice observes in Paragraph 6 that the Central Bank of Kenya during the tendering process properly dealt with the image aspect of the new notes and coins. It instructed in its Technical Specification 6.2.13 in Restricted Tender No. CBK/64/2016–2017, for the Production, Supply, and Delivery of Currency Origination Materials, Proofs and Dataset Files for New Design Kenya Currency Banknotes provided thus:
Where images depicting people have been used, the final images shall have no semblance to their original or capable of being related to their originals/original person. This technical specification correctly upheld the purpose of Article 231(4). The eventual departure from this technical specification is thus suspicious and outright mischievous. The impugned image has a resemblance to the first President and it is effortlessly capable of being related to him.
In summation, the Court, in order to uphold and promote the purpose of Article 231(4) should have employed the purposive construction of law. Venturing into literalism and semantic examination of the text of the provisions of Article 231(4) was calamitous in jurisprudence; it suffocates the spirit of the Constitution. (