Towards a culture of liberal legalism

By Tioko Ekiru Emmanuel

The 2010 Constitution embodies a trenchant commitment and promise to free the minds and harness the potential of all citizens, especially those muzzled by the authoritarian regimes of yesteryear. That said, we must acknowledge that our Constitution is reactionary and remedial in character. While acknowledging problems and contemplating solutions, it relies on those who implement it for success. 

This commentary interrogates the Supreme Court’s ruling in ‘Methodist Church of Kenya V Mohamed Fungicha and others’ on whether sponsored schools can bar Muslim students from wearing hijab while in school.It argues that far from addressing the substantive issues before it, the Majoritylost itself in technicalities – or what Dennis Davis in ‘Elegy to Transformative Constitutionalism’referred to as judicial mind-set or legal culture.    

Transformative adjudication  

As the appointed guardian of the Constitution, the Supreme Court is expected to be the primary space where the law can be shaped. As the apex court, it should appreciate that the Constitution was developed with a view to correcting past mischief. To quote former Chief Justice Willy Mutunga:

“The Constitution itself has reconstituted or reconfigured the 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 principles and values enshrined in Article 10 and transformative vision of the Constitution. The new Kenyan state is commanded by the Constitution to promote and protect values and principles under Article 10.”   

In the same breadth, Justice JB Ojwang’ in ‘Joseph Kimani Gathungu v Attorney General & 5 others’ observed:  

“A scrutiny of the several constitutions Kenya has had since independence shows that whereas the earlier ones were designed as little more than a ‘regulatory formula’ for state affairs, the Constitution of 2010 is dominated by a ‘social orientation’and, as its main theme, ‘rights, welfare, empowerment’… it offers these values as a reference point in governance functions.”

Transformative adjudication should be the tool to reshape our destiny through the “never again” call echoed by the Constitution. 

Although the Supreme Court has made some robust decisions in the past, it is still mired with the retrogressive culture of positivism and formalism. Its implementation requires activist judges alive to the call by Henk Botha in ‘Democracy and Rights: Constitutional interpretation in a post Realist World.’ 

The legal tenets and normative structures in our Constitution, being explicit and post-liberal, demand a rethink of Kenya’s legal culture as the way of approaching legal matters confronting the courts. A country’s legal culture –the characteristic legal values, habits of mind, repertoire of arguments and manners shared by jurists at a given time – borrows from legal practitioners’ shared experiences whether by training or socialisation. It is the basic concept that organises legal thinking and execution.  

In the practical sense, legalism, formalism and positivism remain the dominant language(s) of the western legal application. These dominant doctrines leave legal theory and the ‘practice’ of law impoverished.

Legalism represents the ‘official version’ (metanarrative) of the law. It is the law’s explanation of itself. Marinos Diamentides describes legalism thus:

“Law’ has a life of its own and… it arrives at a judgment by means of an almost mechanical process. It claims the closure of legal meaning which it purports to be contained in the stillness of the letter of the law that is universally acceptable.”

The metanarrative aspect is a tendency of the belief that law is a closed logical system. This approach is labelled as formalism, which contemplates the existence of a legal science and so lays claim to the objective determination of disputes. On the other hand, legal positivism entails an outright rejection of the law having a metaphysical or natural existence. Drawing in this sense, positivism merely reinforces the legal status quo by placing unquestionable faith in the legal canon. It should be emphasised that legalism, formalism and positivism serve the same end, which is to legitimise the authority of the law and eventually render transformation a difficult task.

If the law is treated and approached in terms of legalism, formalism and positivism, then we would be ignoring the process of becoming. D.H. Lawrence expresses this using the metaphor of the regulation cabbage:

“…We are like the hide-bound cabbage going rotten at the heart. We hang back, we dare not even peep forth, but safely shut up in bud, safely and darkly and snugly enclosed, like regulation cabbage, we remain secure till our hearts go rotten, saying all the while how safe we are.”

The jurisprudence emanating from legalism, formalism and positivism is heavily based on a liberal and closed textual interpretation of human rights discourse. It should be borne in mind that the Constitution of Kenya calls for the rejection of these three tenets, as well as objectivism, which are relics of the pre-2010 oppressive regime. Our Constitution and its Bill of Rights have been hailed as bridges from the previous past to the future – a triumph of human rights. Reclaiming both the past and present require a committed and revolutionary bench to stand for the peoples’ welfare and rights.

Ettienne Mureinik in his insightful commentary ‘A bridge to where? Introducing the interim Bill of Rights’, conceptualises the interim South African Constitution as a bridge that facilitates the transition from a culture of authority to a culture of justification, entrenching the image of the Constitution as a bridge that spans the abyss of potentially violent transition. The term ‘bridge’ as a metaphor has been entrenched in the South African Constitutional discourse and in popular consciousness as a powerful image of social, political and legal transformation and progress. The bridge has been defined as “an instrument of escape and liberation, of linear movement from old to new, from inside to outside…”  The bridge is the expression of the wish to break away from a violent and divided past and to complete the transition, once crossed.

The argument formulated here is that the Majority’s failure to address to the merits brought before the Court in Mohamed Fungicha is testament to how the Kenyan legal community preserves and nurtures the dangerous sins of legalism, positivism and formalism. The majority got it wrong by dodging its duty to interpret the substantive question before it in the following manner:

“[81] It is the Bench-majority’s standpoint that the 1^st respondent had no right to pursue it at first instance, or in the appellate process: only because he had appeared as “interested-party”. It is the majority’s stand that the Appellate Court, once it beheld a “cross-petition” from an “interested party”, was a – bound to remit it back to the High Court, to conduct a fresh hearing upon it, before it might subsequently find its way to Appellate Court. From the facts attending the proceedings, however, it is abundantly clear that the trial judge did deal with the merits of the “cross petition.” 

In rejecting the Majority’s formalistic reasoning, Justice JB Ojwang held (wisely) thus:

“[189] While it is the case that the reference to “ cross-petition” had been inexact in a technical sense, it is for recognition that such flaw was, a matter of law, mitigated by the superior processes of both the High Court and the Appellate Court, which reaffirmed the clause embodied in the “cross petition”, appraised the pertinent question, and made the governing pronouncement thereupon…[92]I apprehended the terms of Article 259(1)of the Constitution, with regard to the prescriptions that this charter is to be “interpreted in a manner that” (a) “promotes its purposes, values and principles”,(b) “ advances  the rule of law, and human rights and fundamental freedoms in the Bill of Rights”,( c) contributes to good governance”.-to ordain that it devolves to judges to assign objective meaning and constructive perception to the unbounded prescriptions of the constitutional norms.[93] I consider the same precept to extend to all statute law, or particular provisions thereof, so as to bear unbounded normative prescriptions.[94] It is in that context that I now interpret the terms of Section 27(d) of the Basic Education Act,2013(act No.14 of 2013): imposing upon school’s sponsor(such as the petitioner herein) the obligation of “ maintenance of spiritual development while safeguarding the denominations or religious adherence of others.”

Justice Ojwang’s departure from the majority’s culture of formalistic reasoning is an embodiment of what Digkgang Moseneke baptised as “a creation of new plane of jurisprudence.”

Articles 10, 20(4) and 259 of the Constitution invite the Judiciary as a whole to craft the body of laws desiring to sustain the implementation of our transformative project.  

Jurisprudence of different

According to Karl Klare, multiculturalism is a celebration of diversity within a framework of national reconciliation and Ubuntu. It expressly promotes gender justice and rights of vulnerable members of the society. Multiculturalism is the co-existence of diverse cultures. The Preamble of Kenya’s Constitution celebrates diversity as envisioned in Articles 7(3), 10, 11, 32 and 44 of the Constitution promoting and protecting cultural, religious, linguistic diversity. Ngcobo J. in ‘Prince vs. the president of Law Society of Cape of Good Hope’ correctly appreciated in majestic terms multiculturalism in the right to religion, culture and expression of diverse language with the following endorsement:

“Our society is diverse. It is comprised of men and women of different cultural, social, religious and linguistic background. Our constitution recognises this diversity. This is apparent in the recognition of the different languages, the prohibition of discrimination on the ground of among other things, religion, ethnic and social origin, and recognition of freedom of religion and worship. The protection of diversity is the hallmark of a free and open society. It is the recognition of inherent dignity of all human beings.”

Article 27 of the Constitution of Kenya establishes a generous equality clause which prohibits unfair discrimination on listed grounds. In other words, the Constitution commits itself to what Iris Marion Young embraced as “a jurisprudence of difference”. Such jurisprudence affirms and accommodates “the others” within our polity.  Iris Young put forward as follows:

“A goal of social justice … is social equality. Equality refers not primarily to the distribution of social goods, though distributions are certainly entailed by social equality.  It refers primarily to the full participation and inclusion of everyone in a society’s major institutions, and the socially supported substantive opportunity for all to develop and exercise their capacities and realize their choices.”   

Courts must therefore craft a body of jurisprudence that appreciates ‘the right to be different’ as a celebration and acknowledgment of our diversity. That is the essence of a mature and progressive society that is ready to take off from the dust of authoritarianism.

Transformative adjudication invites judges to a new plane of jurisprudence. It rejects the culture of legalism, formalism and positivism that the majority adopted in the Hijab case. Sachs J, wrote in the famous ‘Port Elizabeth Municipality’ case that in deciding a matter of that kind, the Court is expected to break away from a purely legalistic approach and have in regard to extraneous factors such as morality, fairness, social values and implications and circumstances which would necessitate bringing out an equitably principled judgment. The right approach transformative adjudication requires is one that affirms Justice JB Ojwang’s position. 

The Constitution of Kenya 2010 is a document that was enacted with clear mandates to transform the nation from majoritarian mindset to one that celebrates diversity and respects the dignity of those different from us. The Hijab decision should provide an instructive lesson for the Courts to wake up and carry out soul-searching: how do we accommodate ‘others’? (