Constitutionalism and Interpretation of CoK 2010

Constitutionalism can simply be defined as a belief in a constitutional government. However out of this definition, a lot of questions emerge such as does it refer to a government-run by a constitution, a government formed by a constitution or a government acting in accordance and conformity with the constitution. From the above definition, we can be able to realize that a lot of perplexing questions come up and therefore this definition is not watertight. Constitutionalism can be defined as the doctrine that governs the legitimacy of government action, and it implies something far more important than the idea of legality that requires official conduct to be in accordance with pre-fixed legal rules . In other words, constitutionalism checks whether the act of a government is legitimate and whether officials conduct their public duties in accordance with laws pre-fixed/ pre-determined in advance. 

However, the presence of a constitution in a country does not necessarily mean constitutionalism. Around the globe, many countries have written constitutions to the exceptions of a few states which have an unwritten constitution such as the United Kingdom. The presence of a constitution is not as important as the practice of constitutionalism.  So, for there to be constitutionalism, the following elements need to be seen as present, sovereignty, separation of powers, responsible and accountable government, independence of the judiciary, rights and fundamental freedoms. Sovereignty in a nutshell can be elucidated to mean independence of a people within a certain geographical territory. For there to be sovereignty, independence ought to be the first pillar and secondly, other states should be able to recognize and accept that a state is independent, contains geographical accepted boundaries and territories and autonomy of its citizens. Sovereigns as they are so called citizens living in a specific territorial area demarcated with boundaries and possess democratic rights. In Kenya, citizens enjoy a democratic right in which they form a government through direct representation via voting of elected leaders in office and indirect representation through appointment of personnel such as cabinet secretaries and the like. 

Secondly, separation of powers is provided for by the constitution and is proposed by constitutionalism as an approach in which arms of government can work coherently and according to the law. The doctrine of separation of power provides that no body and or person shall have consolidated power to deter from anarchy, totalitarianism and draconian rule as was in the case during the KANU regime. During this regime, the repealed constitution of 1963 provided three arms of government namely the legislature, executive and the judiciary. The president beting the head of the executive had a lot of consolidated power such as appointing public servants and the like. The president was also tasked with the mandate of appointing judges and magistrates after suggestions from the judicial service commission. This therefore meant that presidential appointees could be fired by the president at any given moment and thus a lot of public servants, magistrates and judges walked on eggshells for fear of presidential authority. The legislature on the other hand was not spared either for KANU made the majority numbers in the August house making it impossible for the opposition and or any other party to table and pass a bill that was not to the liking of KANU’s regime. Draconian laws were also passed since parliament was under KANU’s thumb. The infamous repealing of section 2A of the constitution made Kenya fall under a one-party state thus quashing democratic rule. 

Accountability of governments is also an element of constitutionalism. The executive arm of government headed by the president, is kept in check by the legislative arm of the government and any issues arising thereafter are to be settled by the judicial arm of the government. According to my own opinion, the judiciary is the most important arm of government in any government and as such it ought to be treated with respect and decorum. Independence of the judiciary and its independent authorities is provided for in the constitution of Kenya 2010. The judiciary is tasked with being an independent arbiter whose work is to adjudicate upon governmental matters where conflicts occur between the national government and the county governments and between both levels of government being the legislature and the executive. The judiciary is also tasked with the responsibility of interpretation of law and the recognition of rights and fundamental freedoms accorded to citizens by the constitution of Kenya 2010. 

As mentioned in chapter one, chapter two will also look at interpretation of the constitution of Kenya 2010. Purposive approach has been put forward by various scholars amongst them  John Mutakha Kangu. In his book, JM Kangu devises an approach in which judiciary can interpret the written text of the constitution. JM Kangu goes forward to state that the constitution of Kenya 2010 ought to be interpreted using the purposive interpretation approach. Purposive interpretation requires a court of law, to look at the intent and or purpose of the written text in the constitution. Purpose interpretation also gives the go ahead to judges while interpreting the constitution of Kenya 2010, to adopt new contexts and challenges including those which might not be foreseen by the original drafters of the constitution. According to former Israel Supreme court president, purposiveinterpretation combines subjective elements and objective elements when interpreting a constitutional text JM Kangu goes further to state that in order to achieve a purposive interpretation of the constitution, then one ought to apply an intra textual and an extra textual approach to be able to correctly interpret the constitution . Intra textual elements include but not limited to context, title, preamble, headings, proviso and punctuation. On the other hand, extra textual elements include historical background, objectives and reasons for the written texts, judicial interpretation of words amongst other elements. It is therefore my understanding that the purposive approach is in use when courts of law adopt extraneous materials from pre enacted phrases of legislation including early drafts, Hansards, committee reports and white papers. This is because for a constitution to be promulgated, the constituted draft has to be floored in the August house, deliberations made on it, then a national referendum is carried out before the draft constitution can be promulgated into law. In Kenya, this was witnessed on the 27th of August 2010, where Kenyans were able to pass and put in effect the new constitution.

Subjective elements to be considered when using purposive interpretative approach include but not limited to the authors texts, in this case the drafters of the constitution of Kenya 2010,whereas the objective elements include but are not limited to the intent of the authors and the legal system’s fundamental value. There have been however emerged critics of the purposive interpretation approach, arguing that the use of purposive interpretation to interpret the constitution fails to acknowledge the separation of power between the legislator and the judiciary as it acknowledges more freedom of interpretation via extraneous materials in interpreting the law . However, I would like to differ with critics which suggest that the purposive interpretation approach does not observe the doctrine of separation of powers by giving more latitude in interpretation of laws by the judiciary and thus shades the legislature in bad lighting. Legislative passes statutes are also open to interpretation though not directly via the purposive interpretation approach, there are other approaches in which legislative statutes and bills can be interpreted. 

First and foremost, legislative statutes can be interpreted using the plain meaning rule. This rule, states that courts ought to interpret legal texts using ordinary and natural meaning of words as was drafted by the legislators. The plain meaning rule is the thumb rule judges should first apply when faced with issues of interpretation of legislative statutes. In a leading case of Fisher vs Bell 1961 , it was declared an offence to offer to sell of an offensive weapon. The defendant had displayed through his window a flick knife and was on offer to be sold. Superior court, overturned the decision of the lower court by stating that the knife being on display at the defendant’s window does not amount to an offer of sell of the said offensive weapon but it was an invitation of treat. Therefore, the defendant could not be charged for violation of restriction of offensive weapons act of 1958.  Secondly, there was the golden rule which was put forward to be a tool of interpretation of legislative statutes.

The golden rule allows courts of law to deviate from the plain meaning rule if the meaning and the use of the plain meaning rule may lead to absurdity and ambiguity. This was well elaborated in the case of Re Sigworth 1935 (Bedford v Bedford) . In this case, the defendant was accused with the murder of his own mother. However, issues arose when it came time to dispense the victim’s will and it was noted that she had indeed passed away intestate. The Administration of Justice Act 1925, provided the way forward in the case of a person passing on intestate. The property of the deceased was to automatically be inherited by her son, the defendant according to the Administration of Justice Act of 1925. The courts could not rely on the plain meaning approach in handling this matter for an injustice would have occurred due to the ambiguity and absurdity of application of the Administration Justice Act of 1925 and therefore opted to use the golden rule instead. 

Lastly, there was the mischief rule which was applied to legislative statutes in the interpretation of statutes passes with the intent of curbing mischief. In construction of statutes, Elmer Driedger defines mischief rule as statute is to be so established as to be able to suppress the mischief and advance the remedy and restitution. This therefore gives the court ample space and latitude to achieve the objectives of the legislature despite any inconveniences which may arise in the language used. In using the mischief rule for interpretation of statutes, the following elements need to be considered by the judiciary. First and fore most, what was the common law before making of a certain act, secondly, what was the mischief and or defect that was noted and which the common law had no answer to and thirdly, what remedy the legislature had applied while passing of statutes to curtail mischief. 

Using the three rules of statutory interpretation, it is crystal clear the purposive approach in constitutional interpretation is not a stumbling block in the doctrine of separation of power as put forward by critics of purposive interpretory approach. According to JM Kangu, purposive approach includes the following key elements; textual, structural and contextual, originalism, and history . 

Textualism basically is an interpreting approach used by judges and courts to analyze and interpret the constitution amongst other legal documents such as legislative statutes. Textualism simply is a formalist theory which requires judges and courts to give importance of text in a written constitution or statute and interpret the text using ordinary meaning and natural words in the interpretation of a legal text. Such approach of textualism can be used to find and analyze contemporary problems faced in a nation which are documented and the interpretation of legal texts to help curb problems faced in the country. A good example can be given of the bill of rights which is provided by the Constitution of Kenya 2010. Prior to the promulgation of the 2010 constitution, the executive arm of government was extremely powerful and as such discrimination of citizen rights was on the increase and extra judicial prosecutions was the icing on the cake. As such, the 2010 constitution of Kenya insisted on the bill of rights and set out laid rights and fundamental freedoms. In the case that certain rights or fundamental freedoms are brought for deliberation and interpretation, the judiciary via judges and courts adopt a textual approach in interpreting the bill of rights in the constitution and certain questions arise.

Key questions such as why the bill of rights was enacted in the constitution comes in place and interpretation of such rights and fundamental freedoms take a textual approach when being interpreted so a to bring out the natural and or ordinary meaning of the said right or fundamental freedom. However there has been a debate as how far the textual approach can be used in the interpretation of the constitution. With certain scholars of the view that textualism advances a constitution that is a living document as opposed to originalism in view of a constitution. This debate between originalism and a living constitution can be capped of by the statement of Holmes in the theory of legal interpretation . Holmes stated as follows “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”. From this statement, textual approach seeks to define and interpret ordinary and normal meaning of words as used in a legal text and in our case interpretation of the constitution. 

Structuralism on the other hand can be defined as a method in which interpretation and analysis of elements of language, literature and the general society which centers its attraction on elements of structure and how such elements of structure relate to an entire system which is made of structures . In our case (Kenya), the structures that are the founding pillars of the constitution of Kenya 2010 are sovereignty, bill of rights, democracy and separation of powers in contemporary Kenya. Structuralism as an interpreting tool can also be deemed as inference of a constitution’s design. In Kenya, the structural aspect of the constitution dealt in this paper is the ability of the three arms of government to work in harmony, equidistant, equally, independent and interdependent of each other. Amongst structuralism pops another form of structure between levels of government between the national government and the devolved governments. In other jurisdictions for instance the United States of America, the level of structuralism can also include federalism which is a relationship between the federal government and the state government. Above all, structural approach in interpreting the constitution of Kenya 2010 seeks the clear establishment and maintenance of relationship between the government and the sovereigns. This can be further elucidated by various principles such as public participation which is a way of including sovereigns in matters of state, governance and democracy. An example of the use of structuralism in interpretation was seen in the case of Immigration and Naturalization Service v. Chadha . in this case, the court opined that one house of congress cannot be seen to unilaterally curtail the powers of the executive to allow a deportable person to remain in the United States of America. The court continued to opine that under the structure of the constitution, that both houses of congress ought to deliberate on the matter and forward the resolutions to the president for assent. In this case, the court found that the structure of the constitution forbids one house legislative veto.

Contextual approach of interpretation of the constitution can be defined as the approach in which texts, literature and language used are interpreted according to the surroundings and or nature of the text, literature and language in relation to a specific issue of deliberation . Many texts, literature and language have more than one meaning and this might cause conflicts when it comes to interpretation of a legal text. According to my understanding of the term contextual, it is important to apply this approach in interpreting the Constitution of Kenya 2010. This is because in every jurisdiction there is a different approach in understanding and interpreting legal texts. For example, Kenya has the right to ratify and sign treaties with other states and member bodies such as the United Nations and the European Union. In order to interpret the constitution and treaties ratified by Kenya it is important for any person with the interest of interpreting the constitution of Kenya visa vie ratified treaties use and adopt contextual approach for it considers various factors such as language and literature difference and barriers. As such courts of law adopt a contextual approach and each case, presents different language, textual and literature approach. This therefore requires the judiciary while interpreting such legal text to take every language, text and or literature in context while interpreting laws which might have one or more understanding of legal texts. 

Contextual form of interpretation was applied in the case of Commonwealth v Bralleycase. A statute had provided that no person shall be permitted to make any intoxicating drink for sale or a common seller thereof without the authentic and authorized licensing and registration. The issue arose in the interpretation of the word thereof. It meant alcohol made by the defendant, whereas the defendant argued that the statute stopped only manufacturer from distributing for sale or being common sellers of liquor. In such instances, only context from other clauses of the statute set clear that not only manufactures but all persons were prohibited from selling alcohol without clear authorization and registration. In this case, contextual approach had to be used to interpret the statute because using any other form of interpretation would derive the required meaning and interpretation of the clause, from the other sections of the statute and would therefore render the clause or the statute ambiguous. 

Originalism is a complexed and disputed form of interpretation of the constitution. This is because there has been a never-ending debate between originalist those who support originalism and those supporting the doctrine of a living constitution. Originalist believed that the constitution once drafted ought not be challenged by new eras and generations and that its original text retains thoracic legal implications . On the other hand, there are scholars who believe constitutions ought to be interpreted according to current regimes and eras and they go forward to argue that law or a legal norm should contain a progressive element . The latter go forward to state that we cannot interpret a constitution in the form and language used by its drafter due to the simple fact that time changes and law being progressive ought to also include progressiveness when it comes to the interpretation of the constitution. Originalist however oppose this fact and state that written constitution in themselves contains articles for the provisions of amendments. Originalists claim that for one to interpret a constitution in current regimes they ought to use the intentions and literature that original drafters provided. They go forward to state that originalism allows the constitution to evolve through amendments.

Originalists reply to non-originalists who propose that a constitution ought to be interpreted according to contemporary means, values and or understandings, and they state that such an approach would give judges too much power to change the constitution according to their own political ideologies, contrary to the procedure for formal amendment mandated by the constitution itself. It is therefore the thought of originalists that unless the constitution has been formally amended, the constitution continues to mean today what it meant when it was enacted and promulgated. Therefore, the debate between originalist and non-originalists boils down to two aspects. First is whether constitutional texts ought to be taken to mean the same thing today that they had when the constitution was first adopted and secondly, whether those meaning are determined by the intentions of the founders and or drafters of the said constitution. In contemporary Kenya, the Constitution of Kenya 2010 is said to be a living document because it acknowledges change of time and thus interpretation of the constitution of Kenya 2010 can use a more advance approach. However, there are other sections of the constitution of Kenya 2010, in which originalism can be adopted because the structure of the constitution of Kenya 2010 remains intact unless amendments are done. Such sections include sovereignty, democracy and separation of powers as provided from chapters eight through ten. Unless such sections talking about sovereignty, democracy and separation of powers are amended, then an original approach to interpret the constitution of Kenya 2010 can be adopted.

History is one of the elements that should be included when it comes to interpretation of the constitution of Kenya 2010. Political parties especially their long and enriching history are an important pillar for judges, academics and lawyers to use when interpreting the constitution of Kenya 2010. Courts have indeed relied on history and historical practices when interpreting the constitution when it comes to matters concerning separation of powers and interpretation of individual rights where the constitutional text provides no clear answer . An example of judicial reliance in historical interpretation was seen in the case of National Labour Relations Board v. Canning When determining, among other things, that the President lacked authority to make a recess appointment during a Senate recess of fewer than ten days, the Court cited long-settled historical practices showing an absence of a settled tradition of such recess appointments as being relevant to the resolution of a separation-of-powers question not squarely addressed by the Constitution. In Kenya, historical background provides for a vast scene of precedents and adjudicated matters. Matters that were previously heard and mentioned before the court, form the basic and foundation of laying of the constitution of Kenya 2010. Amongst elements provided by the element of history as per the Kenyan constitution 2010, the supreme law of the land recognizes amongst other laws customary laws and the muslin sheria laws which are interpreted by Khadi’s court. It is also evident that practices in history such as female genital mutilation also led to the campaign of awareness against FGM and child marriages. Finally, the 2007 post-election violence which was a key contributor to the formation of the Constitution of Kenya 2010 continues to bind all Kenyans together with majority of citizen viewing the Constitution of Kenya 2010 as the vehicle through which peace and tranquility is conveyed.