Interpreting the Constitution

By Dr Justice Willy Mutunga

In 2010 Kenya created a new modern transformative Constitution which replaced both the 1969 Constitution and the former colonial Constitution of 1963. This was the culmination of almost five decades of struggles that sought to fundamentally transform the backward economic, social, political, and cultural developments in the country.

The making of the Kenyan 2010 Constitution is a story of ordinary citizens striving and succeeding to reject or overthrow the existing social order and to define a new social, economic, cultural, and political order for themselves. Some have spoken of the new Constitution as representing a second independence.

There is no doubt that the Constitution is a radical document that looks to a future that is very different from our past, in its values and practices. It seeks to make a fundamental change from the 68 years of colonialism and 50 years of independence.

In their wisdom the Kenyan people decreed that past to reflect a status quo that was unacceptable and unsustainable, through reconstitution or reconfiguration of a Kenyan state from its former vertical, imperial, authoritative, non-accountable content under the former Constitution to one that is accountable, horizontal, decentralised, democratised, and responsive to the vision of the Constitution.

“Perhaps realising its own ambitious project, and hence its vulnerability and fragility, the Kenyan Constitution sets, through the judiciary, its barricades against destruction of its values and weakening of its institutions by forces external to itself. Such is the responsibility of Kenya’s judiciary” — Professor Yash Pal Ghai

Role of Judiciary in implementing a transformative Constitution

Let me reflect briefly on the nature of the judiciary of which all Kenyans are a part. We are the heirs, albeit by what you might think of as a bastard route, to a tradition that gives a very powerful place to the judiciary: the common law system. It is a flawed inheritance because it came to us via the colonial route. The common law as applied in Kenya, at least to the indigenous inhabitants, as in the colonies generally, was shorn of many of its positive elements. During the colonial era, we were not allowed freedom of speech, assembly or association. Our judiciary was not independent, but was essentially a civil service, beholden to the colonial administration and very rarely minded to stand up to it. Indeed, administrative officers took many judicial decisions. There was no separation of powers. Institutions of the people that they trusted were undermined or even destroyed. Indeed the common law was a tool of imperialism. Patrick McAuslan, upon whose book with Yash Ghai most Kenyan constitutional lawyers cut their teeth, wrote satirically (plagiarising the late nineteenth century poet, Hilaire Beloc “[w]hatever happens, we have got the common law, and they have not”. We can recall the trial of Jomo Kenyatta — a masterful display of juristic theatre in which the apparent adherence to the rule of law substantively entrenched the illegitimate political system in power at the time. Colonial mindsets persisted, in the executive, the legislature and, unfortunately, even in the judiciary, even after independence.  We continued to yearn for the rule of law.

By the rule of law, I do not mean the sort of mechanical jurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court in independent Kenya to reach an apparently technically sound decision that the election of a sitting President could not be challenged because the losing opponent had not achieved the pragmatically impossible task of serving the relevant legal documents directly upon the sitting President. Again it was this purely mechanical jurisprudence that fuelled the decision of a High Court that the former Section 84 of the independence Constitution (that mandated the enforcement of Bill of Rights) rendered the entire Bill of Rights inoperative because the Chief Justice had not made rules on enforcement as he was obligated by the self-same Constitution to do. 

Decolonising jurisprudence

It is perhaps remarkable, and indeed, a paradox that, although disappointment with the judiciary was at least as great among the common Kenyan as frustration with politicians, it is also true that they chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

They did this by promulgating a Constitution that provides for the appointing of women and men of integrity by an independent and broadly representative Judicial Service Commission: by providing for institutional and decisional independence of the judiciary and the judicial officers respectively; through the vetting of judges and magistrates who served before August 27, 2010 by a Board which had a broad criteria upon which to determine the suitability of these judicial officers; by setting up the Judiciary Fund to signal financial independence of the Judiciary; and finally and above all by setting up an apex court, the Supreme Court that would act as the final protector and custodian of the supremacy of the Constitution.

By vetting the old judicial officers and by recruiting new judicial officers in a transparent manner that called for public participation, the new Constitution created a new judiciary. It is time for the judiciary of Kenya to rise to the occasion, and shake off the last vestiges of the colonial legacy. As I see it, this involves a number of strands or approaches.

There must be no doubt in the minds of Kenyans, or for that matter all judges, about our impartiality and integrity; no suspicion that we defer to the executive, bend the law to suit our long term associates or their clients, or would dream of accepting any sort of bribe.

Secondly, to be a judge has always been the pinnacle of ambition of any lawyer who actually takes pride in his or her work. So it should be possible to take for granted that a judge is of high intellectual calibre, with mastery of legal principles and techniques, hardworking, and committed to applying these qualities in the task of judging.

Thirdly, we in Kenya have been the inheritors of not only the common law but of English court procedures. While English court procedures have over time been made simpler, some archaic terminology has been done away with, case management has been firmer, and Alternative Dispute Resolution has been much more used, in Kenya we still have cases that are heard in driblets; we need radical changes in judicial policies, judicial culture, and end of judicial impunity and laziness.

Fourthly, I see in the Constitution, especially Article 159(2), a mandate for us to carry out reforms tailored to Kenya’s needs, and aimed at doing away with these colonial and neo-colonial inefficiencies and injustices.

Fifthly, what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. I conceive that it requires the judge to develop the law in a way that responds to the needs of the people, and to the national interest. I call this robust (rich), indigenous, and patriotic jurisprudence as decreed by the Constitution and also by the Supreme Court Act of Kenya. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision. 

Sixthly, few people now maintain the myth that judges in the common law system do not make law. Our Constitution tears away the last shreds of that perhaps comforting illusion; especially in the context of human rights, when it provides in terms of Article 20(3)(a) that when applying a provision of the Bill of Rights “a court shall develop the law to the extent that it does not give effect to a right or fundamental freedom”. As I read it, it means that if an existing rule of common law does not adequately comply with the objectives of the Bill of Rights, the court has the obligation to develop that rule so that it does comply. And it is matched (in Article 20(3)(b), which follows) by an obligation to adopt the interpretation that most favours the enforcement of a right or fundamental freedom. This is an obligation, not to rewrite a statute, but to read it in a way that is Bill of Rights compliant if at all possible. I would urge that it is not just the Bill of Rights that should be used as the touchstone of legal appropriateness but also the Constitution more generally. The Constitution says no less.

The Kenyan judiciary must guard against the development of a two-tracked system of judicial review. One that looks like the old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles of judicial review on the other. Those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution — Professor James Gathii

Elements of robust, indigenous, patriotic, progressive jurisprudence

The elements of this decolonising jurisprudence would include the six strands and approaches discussed above, would shun mechanical jurisprudence, but would also reflect the following ingredients. The decolonising jurisprudence of social justice does not mean being insular and inward looking. The values of the Kenyan Constitution are anything but. We can and should learn from other countries. My concern, when I emphasize “indigenous”, is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of other jurisdictions and courts, however, distinguished. And, indeed, the quality of our progressive jurisprudence would command respect in these distinguished jurisdictions. After all our Constitution is the most progressive in the world.

While developing and growing our jurisprudence, Commonwealth and international jurisprudence will continue to be pivotal, the judiciary will have to avoid mechanistic approaches to precedent. It will not be appropriate to reach out and pick a precedent from India one day, Australia another, South Africa another, the US another, just because they seem to suit the immediate purpose. Each of those precedents will have its place in the jurisprudence of its own country. A negative side of a mechanistic approach to precedent is that it tends to produce a mind-set: “If we have not done it before, why should we do it now?” The Constitution does not countenance that approach. 

Our jurisprudence must seek to reinforce those strengths in foreign jurisprudence that fit our needs while at the same time rescuing the weaknesses of such jurisprudence so that ours is ultimately enriched as enjoined by the Supreme Court Act.

The task of growing such jurisprudence involves a partnership between other judiciaries, the profession and scholars. I hope that the bar, too, will respond to the challenge. Standards of advocacy need to improve, the overall quality of written and oral submissions needs to improve. We have so far found the jurisdictions of India, South Africa and Colombia to be great partners as our respective constitutions are similar in many respects. Besides, decolonizing jurisprudence requires South-South collaboration and collective reflection.

The Constitution took a bold step and provides that “the general rules of international law shall form part of the law of Kenya” and “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”. Thus Kenya seems to have become a monist state rather than dualist as in common law tradition and Kenya’s history. The implications of this will have to be worked out over time, as cases come before the courts. Even in the past, Kenyan judges have not ignored international law. They have often quoted the Bangalore Principles on Domestic Application of International Human Rights Norms not as binding but merely as a useful guide. 

Now, however, the courts have greater freedom. Many issues will have to be resolved. Indeed, we now have great opportunity to be not only the users of international law, but also its producers, developers and shapers.

In some ways our task is rather easier than that faced by some other court systems struggling to establish the validity of their place in the constitutional scheme. The principle of Marbury v Madison that established the possibility of judicial review of legislation, and at the same time the key place of the courts in the upholding of the US Constitution, is enshrined in our Constitution (Articles 23(3)(d) and 165(3)(d)).

The 2010 Constitution constitutionalizes public interest litigation which in India was judicially created. Our path has been smoothed — we do not have to strive to establish our role as guarantor of the supremacy of the Constitution, or of the rights of the downtrodden. We are indeed clearly mandated to fulfil these roles.

Our appointment process is precisely designed to give us independence from the executive and the legislature so that we can if necessary “force other institutions of governance to do what they are supposed to do”.  We can only pray that we have the moral stature, the legal skills and the courage to do what we are directed to do.

Kenya’s distinguished constitutional lawyer, Professor Yash Pal Ghai, in one of his unpublished reflections, has stated: “Perhaps realizing its own ambitious project, and hence its vulnerability and fragility, the Kenyan Constitution sets, through the judiciary, its barricades against the destruction of its values and weakening of its institutions by forces external to itself. Such is the responsibility of Kenya’s judiciary.”

A transformative constitution and its attendant transformative constitutionalism are both about change from a status quo that is neither acceptable nor sustainable. Transformative constitutions are not revolutionary, but transformative. Transformative constitutionalism is anchored by progressive jurisprudence from the judiciary and observance of the Constitution by other state organs, indeed all Kenyans. This jurisprudence is not insular. It is the basis of African, South-South, and global collaboration. It is a jurisprudence that allows us to be producers, developers and shapers of international law. At the economic, social, cultural and political levels transformative constitutions and constitutionalism aimed at change that can put a nation in a social democratic trajectory and a basis of democratic sustainable development.

We have moved from a past characterized by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analysed and justified rationally. The idea of a constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law — S v Makwanyane 1995(3) SA (CC) Para 156

What are the challenges to this vision? What are the national and global trajectories within which transformative constitutions, the new rule of law, decolonized progressive jurisprudence are to be viewed, analysed, problematized, and historicized? What does or can jurisprudence do apart from disposing of a particular case — or outside the juridical field? Does a judicial decision in the style I advocate have any impact on public discourses? What are the solutions? What are the limits of a radical constitution?

We begin with Eric Hobsbawm’s conclusion that “our world risks both explosion and implosion. It must change.” Since the end of the Cold War debates have raged on the subject of this change. The paradigms of neo-liberalism, socialism and communism still engage us. The World Social Forum has been convinced since its inception that a new world is possible by invoking radical paradigms, but mainly human rights and social justice paradigms. Radical social democracy is seen as a basis for debating change although revolutionary change rather than transformation has never been discarded from these debates. 

As we envision progressive African jurisprudence based on our transformative constitutions, what is also called the gospel according to the Africans, we cannot forget that Africa is still dominated, exploited and oppressed. We cannot forget that our political elites have hardly formulated an economic, political, and ideological template that reflects African interests in the context of global imperialism. The Africans though are revisiting the ideas of our patriots as shown recently by two publications. 

We may wonder of what use are these thoughts in African judiciaries that struggle to transform their institutions for all their citizens. Given the inherent limitations of implementing transformative constitutions are aspirations enough? Given that African elites invariably lack the political will to support transformation how is judicial transformation to be aligned to challenges that such lack of political will pose? 

These and other ideas and questions must engage our judiciaries that are embracing multi-disciplinary approaches in their work. There is no doubt in my mind that academia must play a critical role in nurturing these ideas in the African judiciaries. 

Ultimately, we must concede that the project of transformation is fundamentally a political project. In countries where the transformation of the judiciary has irreversible support from the political elites, much progress can be quickly made. We should, therefore, interrogate the limitations that face the various judiciaries.

— This is an abridged version of an inaugural lecture delivered at the University of Fort Hare Distinguished Lecture Series on 16 October 2014.