Constitutional Interpretation in Kenya

CONSTITUTIONAL INTERPRETATION

Constitutional interpretation is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. Courts usually apply various methods when interpreting a legal text. Some of these methods are: textual, historical, functional, doctrinal, prudential, equitable and natural.

• The textual method relies on the actual words of the legal text, if the meaning of the words is unambiguous. The rationale of this method is that, since law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed, then textual analysis must be in line with the intention of the lawgiver.
• The historical method is based on the understanding revealed by analysis of the history of the drafting and promulgation of the law.
• The functional method is based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system.
• The doctrinal method is based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the doctrine of stare decisis.    
• The prudential method is based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure.
• The equitable method, also commonly known as ethical, is based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide.
• The natural method is based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur.

The capacity of courts to evolve a coherent and principled approach to the interpretation of the Constitution is absolutely essential for the legitimacy of the Constitutional democracy. Certain scholars have championed the application of “neutral principles” in Constitutional adjudication. This approach opines that courts, in exercising their power of invalidation of laws on Constitutional grounds do not decide cases on general grounds of public policy or legislative criteria of importance. Courts are subject to a discipline of reasoning to which legislators are not bound: the disposition of Constitutional questions must be formidable in terms of some Constitutional principle that transcends the case at hand and is applicable to all comparable cases. Decisions cannot be ad hoc. They must be justified and perceived as justifiable on more general grounds reflected in previous case law and other authorities that apply to the instant fact situation. (See Wechsler., 1959. Towards Neutral Principles of Constitutional Law, Vol 73 Harvard Law Review p 1 . See also Richards, DAJ., 1977.  Rules, Policies and Neutral Principles: The Search for Legitimacy in Common Law and Constitutional Adjudication Georgia Law Review Vol 11 p 1069.)

Professor Githu Muigai has captured the challenge of Constitutional interpretation in the words that:

“First, the fact that the Constitution is both a political charter and a legal document makes its interpretation a matter of great political significance, and sometimes controversy. Second, the court’s interpretation of the Constitution by way of judicial review is equally controversial as it is essentially counter-majoritarian. A non-elected body reviewing and possibly overruling the express enactments and actions of the elected representatives of the people would raise the issue of legitimacy. Thirdly, however defined, the Constitution is an intricate web of text, values, doctrine, and institutional practice. It lends itself to different interpretations by different, equally well-meaning people. Fourthly, the Constitution contains conflicting or inconsistent provisions that the courts are called upon to reconcile, and at other times the Constitution implicitly creates a hierarchy of institutions or values and the courts are called upon to establish the order of importance. Fifthly, at times, the Constitution is vague or imprecise or has glaring lacunae and the courts are called upon to provide the unwritten part.”(Muigai, G., 2004. Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation, East African Law Journal, Vol 1 p 1.)

The above character of the Constitution makes the jurisprudence of the courts that exercise jurisdiction over Constitutional matters, and, therefore, the interpretation of the Constitution, to be of specific concern to a student of the judiciary and the judicial process.

4. THE PROPER APPROACH TO THE INTERPRETATION OF THE CONSTITUTION - TO BE LIBERAL OR TO BE RESTRICTIVE?

This issue had for some time remained (unnecessarily) controversial in the Kenyan constitutional litigation history.

Many jurisdictions with a common law tradition defined the approach that should be adopted while interpreting a constitutional text fairly long time ago. The Privy Council in the case of Minister for Home Affairs and Another Vs Fischer([1979] 3 All ER 21) while interpreting the Constitution of Bermuda stated that:

“a Constitutional order is a document sui generis to be interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation… It is important to give full recognition and effect to those fundamental rights and freedoms with a statement, which the Constitution commences.”
Lord Wilberforce, while delivering the considered opinion of the Court observed;

“A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to the language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.”

In spite of other jurisdictions allowing their citizens to draw the fruits of such purposeful interpretation of the Constitution a long time ago, in Kenya, the grasp was of a different character. For some time, courts insisted on interpreting the Constitution like any other statutory text. In R Vs Elman [1969] EA 357 the late Chief Justice Kitili Mwendwa expressed a basic conservative creed in Constitutional adjudication and interpretation when he stated that “in one cardinal respect, we are satisfied that a Constitution is to be construed in the same way as any other legislative enactment.”(The case involved a charge against the appellant made under the Exchange Control Act. The applicant was compelled to give certain information in an official form which tended to incriminate him. He sought to rely on Section 77(7) of the Constitution as protecting him from self-incrimination. The court in rejecting that argument held that the appellant was only protected from self-incrimination at the trial itself and not during interrogation.)

The recognition of the sanctity of the Constitution and its special character calling for special rules of interpretation was captured in the decision of the High Court of Kenya in the case of Anthony Ritho Mwangi and Another Vs The Attorney General Nairobi High Court Criminal Application No 701 of 2001 where the court stated:

“Our Constitution is the citadel where good governance under the rule of law by all the three organs of the state machinery is secured. The very structure of Separation of Powers and independence of the three organs calls for judicial review by checking and supervising the functions, obligations and powers of the two organs, namely the executive, and the legislature. The judiciary though seems to be omnipotent, it is not so, as it is obligated to observe and uphold the spirit and the majesty of the Constitution and the rule of law.”

In Kenya, there has been a raging argument that the Constitution should be interpreted as a living document, and not like an Act of Parliament. According to Justice Ringera, the Constitution:

“is the supreme law of the land; it is a living instrument with a soul and a consciousness; it embodies certain fundamental values and principles and must be construed broadly, liberally and purposely or teleologically to give effect to those values and principles (cited from Njoya and Others v. Attorney General and Others [2004] LLR 4788 (HCK)).”

Justice Kasango supported this position. Cited section 3 of the former Constitution, he posited that “[t]he Constitution of Kenya having so clearly stated its supremacy means that the rules of interpretation cannot be the same as other statutes which are subordinate to it”. These words were echoed in Njogu v Attorney-General to the effect that:

           

We do not accept that a Constitution ought to be read and interpreted in the same way as an Act of Parliament. The Constitution is not an Act of Parliament. It exists separately in our statutes. It is supreme…it is our considered view that, Constitutional provisions ought to be interpreted broadly or liberally, and not in a pedantic way, that is restrictive way. Constitutional provisions must be read to give values and aspirations of the people. The court must appreciate throughout that the Constitution, of necessity, has principles and values embodied in it; that a Constitution is a living piece of legislation. It is a living document.

In Ndyanabo v. Attorney-General, Samatta CJ of the Tanzanian Court of Appeal held:

“We propose to allude to general provisions governing constitutional interpretation. These principles may, in the interest of brevity, be stated as follows. First, the Constitution of the Republic of Tanzania is a living instrument, having a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must, therefore, endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in (tune) with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and the rule of law. As Mr. Justice EO Ayoola, a former Chief Justice of the Gambia stated … ‘A timorous and unimaginative exercise of the Judicial power of constitutional interpretation leaves the Constitution a stale and sterile document’. Secondly, the provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed.”

Further lack of doctrinal clarity on this issue emerges in the case of R.M. (Suing Thro’ Next Friend) J.K. Cradle (The Children Fund) Millie and G.A.O. VS the Attorney General RM (a minor) & 3 others v Attorney General [2006] 2 KLR 697

“In this regard while conceding that some of the reasoning in the case of REPUBLIC v EL MANN 1969 EA 357 have been substantially overtaken especially in the interpretation of the Constitution, one important principle remains intact, that the words of the Constitution or a statute should be accorded their natural and ordinary sense. This is the path we have chosen in the circumstances of this case. … Of course the El Mann principles have quite rightly been buffeted or shaken by the powerful winds of broad and purposive approach in interpreting the Constitution together with the living tree principle of interpreting the Constitution but except in exceptional cases where these two approaches apply the above principle still reigns supreme. The situation where a living spirit has to be injected into the Constitutional provisions, include, where the language used is likely to lead to unjust situations. Even where the living tree principle of construction is invoked the nourishment given must originate from the roots, the trunk and the natural branches. The court would not be entitled to disregard the roots, the trunk and the natural branches in the name of giving flesh to the Constitution, or to graft in, its own artificial branches. The living tree is sustained by the tree and any grafting is likely to be rejected.

By all means let the courts be innovative and take into account the contemporary situation of each age but let the innovations be supported by the roots.
In this regard we endorse fully the presumption of Constitutionality which was powerfully expressed by the Supreme Court of India in the Hamdarddawakhana v Union of India Air 1960 554 where the respected Court stated:

“In examining the Constitutionality of a statute it must be assumed that the legislature understands and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enacts laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment.”

What the court appears to have been saying was that the Elmann doctrine was partly applicable and partly not applicable in Constitutional interpretation in Kenya. That was an ambivalent position. What, however, is outrightly not satisfactory is the court’s reliance on the case of Hamdarddawakhana which was expressly concerned with the interpretation of legislative enactments as opposed to the constitution? Such is the lack of doctrinal clarity that this paper bemourns. 

From the foregoing, one discerns the jurisprudence that in interpreting the Constitution, the court should attach such meaning and interpretation that meets the purpose of   guaranteeing Constitutionalism, non-discrimination, separation of powers, and, enjoyment of fundamental rights and freedoms. 

The High Court has added further support to this position by the dictum that:

“The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones” (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819; (2008) 3 KLR (EP) 325)

A cursory digest of the decisions from the courts tasked with interpreting the Constitution reveals that rarely, if at all, do courts set out these principles as their guiding principles in determining questions before them.

The above digest of various decisions reveals basic doctrinal weaknesses in the Kenyan judiciary. Yet the more the cases one looks at from the Kenyan judiciary, the gloomier the situation looks. The so-called “neutral principles” that are expected to guide Constitutional principles have been conspicuously ignored in the quest for the proper approach to Constitutional interpretation in Kenya.
The golden thread, however, is that courts have consciously or otherwise, attempted to lean towards the so-called liberal interpretation of the Constitution which is in consonance with trends in other progressive democracies.