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TOPIC:CONSTITUTIONAL INTERPRETATION.
By Mr. MUGAMBI MUHAVI PETER
[LLB Hons (CUEA) ongoing; Dip in Law (IU); GC in IP (WIPO)]1
Email (s): pmugz@yahoo.co.uk
mpmugz@gmail.com
Website: http://mugambimuhavi.blogpost.com
Telephone: (+254) 723282963
Bachelor of Laws (Hons) LLB Degree
Catholic University of Eastern Africa.
CUEA/LLB/101/8508
2011-2014
TABLE OF CONTENTS pg
1 Legal Researcher to the Rtd.Hon.Justice Kasanga J. Mulwa
1.0 INTRODUCTION............................................................
......3
2.0 Interpretation of Constitutional
Provisions.......................17
3.0 Constitutional Interpretation of Human Rights
Cases.......20
4.0 Constitutional Interpretation of Legislative
Actions..........24
5.0 Constitutional Interpretation of Executive
Actions...........28
6.0 CONCLUSION...............................................................
.....30
7.0 REFERENCES................................................................
...31
©Mugambi M.P Page 2
1.0 INTRODUCTION
While knowledge of any kind is a thing to be honored and prized,
one kind of it may either by reason of its greater exactness or of
higher dignity and greater wonderfulness in its objects, be more
honorable and precious than another on both accounts, we are
naturally led to place in the front rank the study of how the
constitution is interpreted.
How the constitution is designed and understood as a legal act
influences the interpretation of the constitution.
The ways a constitution can be interpreted may be broadly
classified into;
a.) Conservative – This approach requires the judges to strictly adhere
to the wording or intended meaning of the constitution. This
approach can be further subdivided into logical, teleological, strict/
legalistic/ narrow, historical interpretation.
b.) Liberal – This gives the judges opportunity to rationalize and check
what the constitution is all about. The constitution is interpreted in
such a manner that it adapts to new conditions and ideas. Under
this we have purposive and broad interpretation.
©Mugambi M.P Page 3
i. Conservative interpretation 2
Logical Interpretation
Logical interpretation becomes exciting when it refers to persuasion
and substantiation concerning the content, which cannot be
checked and chained by strict rules of formal logic. Examples of
persuasive argumentation are argumentum a contrario,
argumentum a simili ad simile (within the legal text or due to a gap
in the constitution), argumentum a fortiori, argument of the nature
of things, etc.
As an example of persuasive argument, the argumentum a maiori
ad minus may be taken. This argument has been used by some
courts when deciding on the conformity of laws with the constitution
and on the conformity of regulations with the constitution and with
laws.
Teleological interpretation
It determines the meaning of linguistic signs with regard to the
purpose of the legal provision. The meaning of the legal rule is
based on criteria contained in the legal text.
Strict / Legalistic / Narrow interpretation
This is when the constitution is interpreted as the wordings are.
There’s no provision whatsoever for the judges to rationalize about
the meaning of clauses.
Historical interpretation
2 See R vs. El-mann
©Mugambi M.P Page 4
Basically the historical circumstances help find the meaning of the
legal text. It considers the historical conditions in which and
because of which the legal text originated, the genesis and the
whole development of how the legal text obtained its final linguistic
expression and it compares any earlier legal text with the new text
regulating the same legal matter.
ii. Liberal interpretation 3
Purposive interpretation
“The legislature passes legislation in order to achieve a certain
purpose. The purpose of a constitution is to provide a foundation for
the social structure and its fundamental values.
This purposive approach to constitutional interpretation has, in
particular, been summarized by the Court of Final Appeal in the case
of Ng Ka Ling V Director of Immigration ; it is a living instrument
intended to meet changing needs and circumstances. So, in
ascertaining the true meaning of the instrument, the courts must
consider the purpose of the instrument and its relevant provisions
as well as the language of its text in the light of the context, context
being of particular importance in the interpretation of a
constitutional instrument.”
Broad interpretation
3 See Rev.Timmothy Njoya & Others vs. Attorney General & Others.
©Mugambi M.P Page 5
This entails interpreting the constitution in accordance with the
changing times.
Principles of Constitutional Construction according to the USA. 4
Constitutional interpretation, or constitutional construction, the term more
often used by the Founders (of USA), 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. Some scholars distinguish between
"interpretation" — assigning meanings based on the meanings in other
usages of the terms by those the writers and their readers had probably
read, and "construction" — inferring the meaning from a broader set of
evidence, such as the structure of the complete document from which one
can discern the function of various parts, discussion by the drafters or
ratifiers during debate leading to adoption ("legislative history"), the
background of controversies in which the terms were used that indicate
the concerns and expectations of the drafters and ratifiers, alternative
wordings and their meanings accepted or rejected at different points in
development, and indications of meanings that can be inferred from what
is not said, among other methods of analysis.
There is also a question of whether the meanings should be taken from
the public meanings shared among the literate populace, the private
meanings used among the drafters and ratifiers that might not have been
widely shared, or the public legal meanings of terms that were best known
by more advanced legal scholars of the time. Most of the U.S. Constitution
appears to have been written to be understood by ordinary people of that
4 See Marbury vs. Madison 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)
©Mugambi M.P Page 6
era, although people then were much more literate in the law than people
are now. However, many of its words and phrases are fairly deep legal
terms that were only well understood by a few of the legally educated
Founders, even though the general population probably had a
rudimentary understanding of them.
There is a problem with the "original public meaning" formulation,
because while the meanings of constitutional terms were "public" in the
sense that they were not "private" or "secret", they were not necessarily
familiar to ordinary people of the era. More accurate would be "legally
educated and still learning public meaning", because many of the
Founders themselves used terms that they had to research to find the
meanings of. An example of this can be seen in the comments by
Dickenson in the Federal Convention Aug. 29, 1787, about ex post facto
only applying to criminal cases, after researching the topic in Blackstone's
Commentaries. So since we can presume the Founders mostly agreed on
the writers they considered authoritative on legal usages, we can
reasonably refer to the writings of those other writers to find the
meanings the Founders intended even if the Founders themselves had not
yet done the research to fully master the concepts.
For constitutional terms the denotata are not empirical objects so much as
ideas, that is, mental models that do not, for the most part, have the
advantage of some formal scientific models of being representable in
mathematical or computer formalisms that we can examine externally. In
particular, they are ideas that existed in the minds of persons long dead,
so we have to develop mental models of their mental models ("theory of
©Mugambi M.P Page 7
mind") based on the things they read and wrote. That can be done. The
verification comes with being able to predict what one of them will say in
a writing one hasn't read yet. Becoming adept at doing so can reassure
one that one has "gotten into their heads". But that is not something one
can demonstrate to others.
This leads to the admonition that the English used in the Constitution and
other legal documents of the 18th century should be read as a foreign
language, putting aside today's meanings of what seem to be the same
words we use today, and attempting to decode the meanings from various
clues we can find. This is not only wise for 18th century English, but for
almost any communications, even among people who communicate with
one another daily, because no two people mean precisely the same thing
by the same words on every occasion. When both speaker and listener are
alive they are able to interrogate one another to arrive at a common
meaning, but when the author is dead we have to find evidence in other
things he or his correspondents wrote.
Constitutional controversies are about whether an official act is consistent
with, and authorized by, a constitution or constitutional statute or court
decision. Since a constitution is a law, and the supreme law within its
domain, and authorizes statutes and other official acts which have a
textual expression, the principles of constitutional interpretation are
essentially the same as the principles of statutory or judicial
interpretation.
Most legal scholars recognize seven main methods of judicial decision
making: textual, historical, functional, doctrinal, prudential, equitable, and
©Mugambi M.P Page 8
natural, although they may differ on what each includes, and there is
some overlap among them.
1. Textual. Decision based on the actual words of the written law, if the
meaning of the words is unambiguous. Since a 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 since it was issued, then textual
analysis must be of the words as understood by the lawgiver, which
for a constitution would be the understanding of the ratifying
convention or, if that is unclear, of the drafters. Some Latin maxims: A
verbis legis non est recedendum. From the words of the law there is
not any departure. 5 Coke 118. Noscitur à sociis. Meaning of words
may be ascertained by associated words. 3 T.R. 87.
2. Historical. Decision based less on the actual words than on the
understanding revealed by analysis of the history of the drafting and
ratification of the law, for constitutions and statutes, sometimes called
its legislative history, and for judicial edicts, the case history. A textual
analysis for words whose meanings have changed therefore overlaps
historical analysis. It arises out of such Latin maxims as Animus
hominis est anima scripti. Intention is the soul of an instrument. 3
Bulst. 67.
3. Functional. Also called structural. Decision based on analysis of the
structures the law constituted and how they are apparently intended
to function as a coherent, harmonious system. A Latin maxim is Nemo
aliquam partem recte intelligere potest antequam totum perlegit. No
©Mugambi M.P Page 9
one can properly understand a part until he has read the whole. 3
Coke Rep. 59.
4. Doctrinal. Decision based on prevailing practices or opinions of legal
professionals, mainly legislative, executive, or judicial precedents,
according to the meta-doctrine of stare decisis, which treats the
principles according to which court decisions have been made as not
merely advisory but as normative. Some Latin maxims are:
Argumentum à simili valet in lege. An argument from a like case avails
in law. Coke, Littleton, 191. Consuetudo et communis assuetudo ...
interpretatur legem scriptam, si lex sit generalis. Custom and common
usage ... interpret the written law, if it be general. Jenk. Cent. 273.
Cursus curiæ est lex curiæ. The practice of the court is the law of the
court. 3 Buls. 53. Judiciis posterioribus fides est adhibenda. Credit is to
be given to the latest decisions. 13 Coke 14. Res judicata pro veritate
accipitur. A thing adjudicated is received as true. Coke, Littleton, 103.
5. Prudential. Decision 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. One such
consideration, avoidance of disturbing a stable body of practices, is
also the main motivation for the doctrinal method. It also includes
such considerations as whether a case is "ripe" for decision, or
whether lesser or administrative remedies have first been exhausted.
A Latin maxim is Boni judicis est lites dirimere. The duty of a good
judge is to prevent litigation. 4 Coke 15.
©Mugambi M.P Page 10
6. Equitable. Also called ethical. Decision 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. Often
resorted to in cases in which the facts were not adequately anticipated
or provided for by the lawgivers. Some scholars put various balancing
tests of interests and values in the prudential category, but it works
better to distinguish between prudential as balancing the interests and
values of the legal system from equitable as balancing the interests
and values of the parties. It arises out of the Latin maxim, Æquitas est
perfecta quædam ratio quæ jus scriptum interpretatur et emendat;
nulla scriptura comprehensa, sed sola ratione consistens. Equity is a
sort of perfect reason which interprets and amends written law;
comprehended in no code, but consistent with reason alone. Coke,
Littleton, 24.
7. Natural. Decision 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. This has its origin in such ancient Latin maxims as: Jura naturæ
sunt immutabilia. The laws of nature are unchangeable. Jacob. 63.
Impossibilium nulla obligatio est. There is no obligation to do
impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The
law does not compel the impossible. Hob. 96. Lex neminem cogit ad
vana seu inutilia peragenda. The law requires no one to do vain or
useless things. 5 Coke 21. Legibus sumptis desinentibus, lege naturæ
©Mugambi M.P Page 11
utendum est. Laws of the state failing, we must act by the law of
nature. 2 Rol. Rep. 98.
Of these, only the first three, textual, historical, and functional, are
methods of interpreting or constructing the written constitution of
government, and the historical and functional methods may be more a
matter of construction than interpretation. The last, natural, is
construction (not interpretation) of the unwritten constitution of nature, or
the unwritten constitution of society, which form a hierarchy of authority,
with the constitution of nature superior to the constitution of society, and
the constitution of society superior to the written constitution of
government. The doctrinal, prudential, and equitable methods are not
interpretation or construction of any of these constitutions, although
judges often claim they are. There is an misguided tendency among
modern judges to misrepresent what are essentially prudential or
equitable decisions as constitutional constructions. Too many lawyers are
complicit in this by casting what are essentially prudential or equitable
arguments into constitutional terms. There is nothing inherently wrong
with making prudential or equitable decisions. The U.S. Constitution
confers both law and equity jurisdictions on federal courts, as do the state
constitutions. The problem comes with treating such decisions as
establishing precedents, especially binding ones. It is one thing to treat a
decision as a precedent that clarifies some ambiguity in the constitution,
but quite another to essentially insert a prudential or equitable decision
into the constitution as a kind of amendment. Such decisions must not
conflict with constitutions or constitutional statutes, but often do.
©Mugambi M.P Page 12
Doctrinal and prudential decisions are more troublesome. The doctrinal
method may be compatible with the written constitution of government if
it merely involves clarifications of ambiguities in the original text, but not
when those doctrines depart from original legal understanding, as they
sometimes do.[1] The prudential method may be justifiable as necessary to
handle large caseloads, but often neglect to render justice in particular
cases, especially when they involve avoidance of controversy rather than
a desire to settle all issues brought before the court.
Within these methods, we can, by study of the writings of the Founders,
and the writings they read, elicit such principles for interpreting or
constructing the Constitution for the United States as the following:
1. The Constitution is the written document. Although it may be
considered to include the understandings of its words as of the time
of ratification, it does not include the subsequent body of practices
or precedents upon which constitutional decisions might be based,
which may or may not be consistent with it, or authorized by it. The
written document refers to itself as "this Constitution", and provides
for only four methods by which it may be amended, all of which
apply only to the written document.
2. The authority for provisions of the Constitution is the
ratifications and state admissions. Current consent or
acquiescence, or lack thereof, to the Constitution or any practice,
does not affect the original constitutive acts, and has no authority,
unless expressed through adoption of amendments as provided in
Article V.
©Mugambi M.P Page 13
3. Provisions of the Constitution are mutually consistent. There
are no internal logical contradictions, except that a provision of an
amendment inconsistent with a previous provision supersedes that
provision.
4. None of the words are without force and effect, except those
superseded by amendments, unless such amendments are
repealed. Except for the statement of purpose in the preamble,
every word was intended by the Framers to be legally normative,
and not just advisory, declaratory, aspirational, or exhortatory.
Verba intelligi ut aliquid operantur debent. Words should be
interpreted to give them some effect.
5. Rights and powers are complementary. Every right recognized
by the Constitution is an immunity, that is, a right against a positive
action by government, and is equivalent to a restriction on
delegated powers. Conversely, every delegated power is a
restriction on immunities. An immunity may be expressed either as
a declaration of the right, or as a restriction on powers.
6. There are no redundancies within the original unamended
Constitution. However, amendments may be alternative ways of
expressing equivalent content in the original unamended
Constitution or previous amendments. More specifically, the Bill of
Rights added no new content not implicit in the original unamended
Constitution, except the twenty dollar rule of the Seventh
Amendment.
©Mugambi M.P Page 14
7. The Constitution was intended to define a functionally
complete and harmonious system. That does not mean,
however, that all powers anyone might think the nation or any
branch, level, office or department should have, were actually
delegated.
8. Original "intent" is functional, not motivational. The private
motives of the Framers or Founders are irrelevant and largely
unknowable, and likely to have been diverse. The common law rule
of interpretation understood by the Founders was to discern the
functional role of elements of the law, not the private purposes of
the lawgivers.
9. The ratification debates are the best evidence of original
understanding. The arguments of those opposed to ratification are
not just the positions of the losers in the debates, which some might
dismiss as not indicative of original understanding. As the debates
proceeded, understandings evolved and clarified, and positions
changed. Most opponents were satisfied by adoption of a Bill of
Rights, and by assurances by the proponents concerning how the
words of the Constitution would be interpreted, and those
assurances must be considered part of the original understanding.
That means that a construction to which the more significant "anti-
federalists" would object is almost certainly incorrect.
10. Powers are narrow, rights broad. The entire theme and
tenor of the ratification debates was that delegated powers were to
be interpreted as strictly as possible, consistent with the words, and
©Mugambi M.P Page 15
rights as broadly as possible, with the presumption in favor of the
right, and the burden of proof on those claiming a power. Potestas
stricte interpretatur. A power is strictly interpreted. In dubiis, non
præsumitur pro potentia. In cases of doubt, the presumption is not
in favor of a power.
11. Delegated powers cannot be subdelegated. The U.S.
Constitution vests all legislative powers in Congress, and all judicial
powers in the Supreme Court and inferior courts, except as
specifically expressed. Executive branch officials may subdelegate
but must remain responsible for the actions of their subordinates.
There can be no authority exercised that is not accountable through
constitutional officials.Delegata potestas non potest delegari. A
delegated power cannot be delegated. 9 Inst. 597.
12. The power to regulate is not the power to prohibit all
modalities of something. It is only the power to issue
prescriptions to "make regular", enforceable only by deprivations of
property or privileges, not of life, limb, or liberty. There must always
be some modality that is not prohibited.
13. Implied powers are only to "carry into Execution" an
expressed power and not to do whatever is necessary to
achieve the intent for which a power might be exercised.
Delegation of a power is delegation of the right to make a certain
©Mugambi M.P Page 16
kind of effort, not to do whatever is necessary to get a desired
outcome.
14. There can be no common law crimes. They are in conflict
with the prohibitions on ex post facto laws and bills of attainder.
15. Rights may not be disabled or unduly burdened by
legislative or executive process. "Due" process is judicial only,
involving the granting of a petition to disable a right of the
defendant, with the burden of proof on the plaintiff or prosecutor,
and with the defendant having at least those minimum protections
that prevailed during the Founding. with similar disablements
having similar standards of proof and protection.
16. There is no right without a remedy. Ubi jus ibi remedium.
There must always be an accessible forum in which a complainant
has oyer and terminer for any petition.
17. The Founders were learning. "Original meaning" is not just
about what the Founders consciously meant at the moment of
ratification, but includes what they would discover with further
study of the legal tradition they invoked in the words they chose.
Thus, they referred to authors like Blackstone and Coke when they
were unsure what they meant, and so must we.
18. Early practice indicative but not dispositive. Early
practice by the Founders may provide evidence of their aspirations
in the words they chose, but should not be regarded as perfect
expressions of their intent. Practice can represent compromise with
©Mugambi M.P Page 17
practical concerns and may lag behind the ideals contained in the
words.
19. Mental models of mental models. Each of us has a mental
model of the world that includes a model of the mental models
others have of the world. Communication is possible only to the
extent that our mental models of the mental models of others are
somehow accurate or congruent. When a lawgiver issues a law, a
command to others for future compliance, he is relying on others to
understand his words the way he does, and those others are relying
on him to use words with the meanings they have for them. But
words are an imperfect way to convey meanings, and if the recipient
of the command cannot interrogate the lawgiver for his meaning, he
must try to improve his mental model of the lawgiver's mental
model by such means as learning to accurately predict what the
lawgiver will write about matters the recipient has not previously
read.
20. Find the right level of abstraction. It was common for the
Founders to use somewhat more concrete words to mean broader
principles. Thus, "press" or "arms" is not limited to the technology of
the time, but refers to the general function they served. "Militia"
does not mean merely those legally obliged to respond to an official
call-up, but defense activity generally.
©Mugambi M.P Page 18
2.0 INTERPRETATION OF CONSTITUTIONAL PROVISIONS.
It is interesting to consider the approach the courts have taken in
interpreting constitutional provisions. The spectre of narrow and
restrictive interpretation, first proposed by Republic vs. El Mann5, has
been finally cast away. The Kenyan Constitution Court in Njoya vs.
Attorney-General and the Ugandan counterpart in Olum and Another vs.
Attorney-General6 both rejected arguments of restrictive approach to
interpretation, incorporating fundamental values and principles. The Njoya
court did a review of constitutional literature and unilaterally introduced
certain fundamental values as unwritten values of the old Kenyan
constitution.
The Ugandan trilogy on constitutional interpretation: Olum and
Ssemogerere vs. Attorney-General all contain insightful analyses of
constitutional interpretation. The harmonisation principle of interpretation,
the concept of supremacy of the constitution and the integration of the
preamble and the national goals, values and aspirations in interpreting
were all incorporated into this set of decisions. The courts held a statutory
provision unconstitutional, and even a provision of a Constitution
Amendment Act.
Interesting interpretations have been given to various constitutional
provisions in the reported cases. In Attorney-General vs. Shekimeri7
'removal' and 'retirement' were interpreted to mean substantially the
same thing. The Tanzanian court noted that the primary text of the
5 (1969) EA 3576 (1995-1998) 1 EA 2587 (2002) 1 EA
©Mugambi M.P Page 19
Constitution is the Kiswahili language version. This was also noted in SMZ
vs. Ali where the sovereignty of the United Republic of Tanzania was in
consideration.
The right to a fair trial or access to justice has received broad attention. It
has been held to include the right of access to evidence without extra-
judicial control(Olum vs. Attorney-General No.1), Tinyefuza vs. Attorney-
General and Ssemogerere vs. Attorney-General).It has also been held to
include the right to attendance during submissions, hence making written
submissions unconstitutional (Akhuya vs. Republic).In Juma and Others
vs. Attorney-General, the right to a fair hearing was stated to include
access to witness statements to allow preparation of the defence case.
The Ugandan counterpart has distinguished between interpretations of
the constitution under article 137, and has only issued substantial
remedial orders to redress infringement under article 50 where the said
infringement was determined upon constitutional interpretation.
(Nakachwa vs. Attorney-General)8.Thus in the sequel to Nakachwa, the
court in Karugaba vs. Attorney-General declined to exercise jurisdiction
once the interpretation action of the constitution had abated.
It is interesting that while the Tanzanian court in SMZ vs. Ali9 insisted on
issuing a ruling on constitutional interpretation even after abatement of
the cause of action, the Ugandan court adopted the opposite approach
and declined to allow continuation of a constitutional interpretation action
where a petitioner had died.
8 (2002) 2 EA9 (2000) 1 EA
©Mugambi M.P Page 20
The Kenyan court has interpreted the constitutional provision against
discrimination to nullify an evidentiary requirement for corroboration in
sexual offences (Mukungu vs. Republic).In a different case (Meme vs.
Republic), a statute creating ''special magistrates'' was interpreted widely
to avoid conflict with the constitutional establishment of judicial offices.
The Kenyan court has also been interested in an interpretation of its own
jurisdiction, which is constitutionally prescribed as ''unlimited original
jurisdiction in civil and criminal cases’’. In Nyachuma vs. Republic, the
Court of Appeal affirmed the High Court's constitutional jurisdiction and
held that it could not be ousted by a statute. The Children's Act had
bestowed special jurisdiction to special magistrates. In contrast, the High
Court in Narok County Council vs. Transmara County Council declined
jurisdiction on the ground that the same had been ousted by statute.
In the problematic Kombo vs. Attorney-General10, the High Court declined
to exercise jurisdiction when invokes as a constitutional court on the
ground that the same would involve sitting on appeal against the decision
of the High Court sitting as an election court which had equal and co-
ordinate jurisdiction. This reasoning is supported by a 2004 decision
(Pattni vs. Ali and Others (1998) LLR 2585 (CCK), where the Kenyan High
Court held that despite the administrative establishment of a
Constitutional and Judicial Review division, the High Court is always a
constitutional court.
3.0 CONSTITUTIONAL INTERPRETATION OF HUMAN
RIGHTS CASES.
10 (1995-1998) 1 EA
©Mugambi M.P Page 21
Cases of interpretation often arise directly in relation to protection of
fundamental rights and freedoms. Some of the East African countries have
robust Bill of rights provisions in their constitutions. Section 30(2) of the
Tanzanian Constitution however reduces the vibrancy of its Bill of Rights
in so far as it provides that the bill of rights will not invalidate any
legislation or prohibit the enactment of any legislation so long as the
legislation is for the public benefit or to protect the rights of others.
The Ugandan constitution is also the most assertive of fundamental rights,
with 22 articles and numerous provisions dedicated specifically to
declaring fundamental rights and freedoms. Kenya’s fundamental rights
under the 1969 Constitution have not historically been protected, save
that the last decade has seen growing assertiveness by the courts in
ensuring protection of fundamental rights. However with the coming of
the new constitution in Kenya has in it, a comprehensive Bill of rights both
civil and political and also economic and social rights.
The reported cases disclose a variable approach to protection of
fundamental rights. In Tanzania, the court in Ami vs. Safari11 held that the
bill of rights enacted pursuant to the 1977 Constitution could not apply
retrospectively to an infringement of property effected in 1974.In a more
assertive decision, the Tanzanian Court in Ndyanabo vs. Attorney General
held that the right to a fair trial and access to justice had been
compromised by an election statute that required a large compulsory
court fee prior to entertaining an election petition.
11 (2001) 1 EA
©Mugambi M.P Page 22
Ugandan Courts have been increasingly vibrant in enforcing fundamental
rights. The right to a clean environment has been recognised in BAT Ltd
vs. Environmental Action Network and Greenwatch vs. Attorney-General.
Such rights may be litigated by a member of a large class of affected
persons, or even a public spirited individual engaging in public interest
litigation. The right of access to information has been affirmed in the Olum
and Ssemogerere vs. Attorney-General trilogy and the related cases of
Attorney-General vs. Tinyefuza and Serugo vs. Kampala City Council
(Supreme Court).
However, the courts have restricted expansion of fundamental rights in
Serugo vs. Kampala City Council and Karugaba vs. Attorney-General12. In
the latter case the court ruled that a constitutional petition did not
constitute a chose in action, as to be transmissible with the estate of
deceased person. In the former case the court held that no fundamental
right could have been infringed by the ordinary performance of judicial
function by a judicial officer.
The Kenyan court has also had its fair share of decisions on fundamental
rights. The Court of Appeal has taken to invoking fundamental rights of
due process in criminal appeals to set convicted persons free. In Akhuya v
Republic and Mwaniki v Republic13 the right to fair trial was held to include
a right by the accused to be present during oral submissions and not to
have duplex charge presented against him respectively.
The High Court invoked fundamental rights in habeas corpus application,
Salim v Federal Bureau of Investigations, which arose out of anti-terrorism
12 (2000) 2 EA 51413 (2002) 2 EA 323
©Mugambi M.P Page 23
investigation by FBI officers in Kenya. In Juma and others v Attorney-
General, the right to adequate facilities for preparation of the defence was
held to entitle the accused to access to witness statements and other
documents in the possession of the prosecution in good time before the
hearing of the case. However in Meme v Republic the court disagreed that
the applicant’s fundamental rights had been infringed by the setting up of
anti-corruption courts and investigation agencies, since his presumption of
innocence and due process rights had been retained.
Kenyan courts have also had occasion to consider allegations of
discrimination. In Njoya v Attorney-General14, the court held that the
constituent assembly in the Kenyan assembly in the Kenyan Constitution
review process was discriminatory in general for allowing skewed
representation that turned majorities into minorities and vice-versa. The
court however declined to grant any remedy because the applicants had
not personally been discriminated against. In like manner, the court in
Suba v Egerton University disagreed that a public university had
discriminated against final year students as compared to other students in
establishment of university programs, because no ground of constitutional
discrimination had been shown.
Kenyan courts often invoked the right to property in their decisions. Thus
in Microsoft Corporation v Mitsumi Computer Garage15 and Royal Media v
Commissioner of Customs and Excise the acts of a litigant wrongly
purporting to effect seizure under Anton Piller Orders and the acts of a tax
14 (2004) 1 EA 19415 See (2001) 1 EA 127
©Mugambi M.P Page 24
Commissioner purporting to seize goods under statutory powers were held
to infringe on the constitutional rights of the applicants.
The courts have however been reluctant to declare infringement of
fundamental rights in the course of judicial proceedings. In Republic v
Gachoka16, the Court of Appeal failed to give the respondent a full right to
be heard, or right of appeal, but then went on to declare that the
applicant ‘has had his day in court’ on the basis of his oral submissions.
Likewise the High Court in Kombo v Attorney-General held that it could not
consider any purported denial of fundamental rights during a High Court
hearing because the High Court as an election court is a court of co-
ordinate jurisdiction.
There is however a positive trend towards greater enforcement of
fundamental rights in the three East African countries. As the courts
recognise more the supremacy of the constitution, any assertion of
fundamental rights will serve to challenge purported exercise of statutory
power by public officers.
4.0 JUDICIAL REVIEW OF LEGISLATIVE ACTIONS.
In Constitutional jurisprudence, the relationship between the three arms of
government is exposed. While the Executive and the Legislature tend to
be the two centres of power deriving popular legitimacy from the people,
the Judiciary interposes between them as an arbiter. In modern
constitutions, it is indicated clearly that the judiciary also derives its
legitimacy from the sovereign will of the people, and hence it is able to
16 (1999) 1 EA 254
©Mugambi M.P Page 25
strike down actions of both the Legislature and Executive as
unconstitutional.
The common law Crown-agency doctrine of the source of the powers of
the Judiciary has been considered in dome of the reported cases and
discarded as inapplicable to a country with a written constitution. The
Ugandan court has also gone further in considering the extent to which
the Judiciary can review the actions of the Legislature.
Two of the reported Kenyan cases involved the declaration of Whole Acts
of Parliament as unconstitutional. Gachiengo v Republic17 declared that
the Kenyan Anti-Corruption Authority and its enabling statute as
unconstitutional on the ground that they conflicted with the Attorney-
General’s constitutional prosecutorial mandate and investigative mandate
of the Kenya Police. Ruturi and another v Minister of Finance18 declared
the implementation provision of the Central Bank of Kenya (Amendment)
Act unconstitutional because it purported to give retrospective effect to
provisions that were penal in nature or that would involve distortion of
existing contractual obligations.
Subsequent to these decisions, the Kenyan High Court has now become
more uncompromising in its review of legislative action. In Michuki v
Attorney General19 the court declared the purported amendment to a
Constitution Amendment Act by an ordinary Act of Parliament as
unconstitutional. The Court however saved the districts created under the
Act, even while it acknowledged the creation of administrative districts
17 (2000) 1 EA 6718 (2001) 1 EA 25319 (2003) 1 EA 158
©Mugambi M.P Page 26
and electoral boundaries had failed to comply with the constitutional
requirements for proportionality.
In Njoya v Attorney-General the Court adopted a similar pragmatic
approach. The court declared section of the Constitution of Kenya Review
Act as contrary to unwritten but fundamental principles underlying the
Constitution of Kenya. The court followed Michuki and grappled with the
legacy skewed representation in the constituent assembly. Like Michuki
the court declined to give a supervisory order, but limited itself to a
declaration that the Review Act was unconstitutional in certain particulars.
The new approach of the courts has become commonplace, leading
judges to fault legislative provisions almost casually. Legislative
enactments are endangered not only where they expressly contradict the
Constitution, or where they are passed unconstitutionally, but even where
constitutional provisions or even unwritten principles are implicitly
contradicted. Thus in Republic v Maitha and another ex parte Waudi20 the
court stretched the provisions of section 33 of the constitution, which
dealt with nomination of MP’s, o apply mutatis mutandis to nomination of
local authority councillors. After that successful stretching exercise,
section 27(2) of the Local Government Act was held to be inconsistent
with the stretched section 33 of the Constitution.
The discovery of a “spirit” in section 33 of the Constitution (Republic v
Maitha) and of “a soul of consciousness” in the entire constitution (Njoya v
Attorney-General) is an indicator of the teleological and broad approach to
constitutional interpretation. It however risks converting judicial review of
20 (2004) 1 EA 306
©Mugambi M.P Page 27
legislative actions into activist judicial legislative action. Constitutional
democracy assumes the constitution is supreme, but when an activist
judiciary makes innovative and legislative readings into an eloquently
silent constitution, the Judiciary usurps the constitution and makes itself
supreme. This is inappropriate.
Ugandan courts have been more vibrant in their review of legislative
action. First section 121 of the Evidence Act was declared unconstitutional
(Attorney-General v Tinyefuza)21 for seeking to restrict right to access to
government documents for use in court. In like manner section 15 of the
National Assembly (Powers and Privilege) Act was declared
unconstitutional for restricting court use of Parliamentary proceedings.
(Olum v Attorney-General.)
Subsequently the Supreme Court declared the Referendum and Other
Provisions Act void (Ssemogerere and Olum v Attorney-General) for
having been passed without requisite quorum and in disregard of other
applicable constitutional provisions. To redress this issue, Parliament
passed a Constitution (Amendment) Act No 13 of 2000 to validate past
acts of procedure, and to secure the voice vote and Parliamentary control
of its record from judicial challenge. In Ssemogerere v Attorney-General
(No 3), the said amendment Act was also declared unconstitutional for
seeking to amend entrenched provisions by infection but without following
the right procedure.
Aside from this interesting battle for constitutional supremacy between
the Ugandan Courts and Parliament, the Supreme Court in Kyamanywa v
21 Constitutional Appeal Number 1 of 1998
©Mugambi M.P Page 28
Uganda [2000] 2 EA 426 paved the way for a declaration by the Court of
Appeal in Kyamanywa v Uganda22 that corporal punishment, authorised by
certain penal provisions of law, was unconstitutional in Uganda.
Ugandan courts in reviewing legislative acts have had recourse to
directive principles of state policy and national objectives, to the preamble
of the Constitution and to Constitutional rights, both entrenched
provisions (like the Bill of Rights amendment rules) and general
provisions. The Courts have adopted ideas from other jurisdictions, such
as amendment by infection, the principle of considering legislative
intention as well as effect in determining constitution harmonisation
principle.
The Ugandan Court emerged triumphant from the battle for Constitutional
Supremacy and is now ready to review legislative action, both in its
intention and in its effect, in the light of the Constitution.
5.0 JUDICIAL REVIEW OF EXECUTIVE ACTIONS.
Judicial review on executive actions is another interesting area of
constitutional jurisprudence. It is possible for the executive to ignore or
disobey constitutional provisions. In fact, most human rights actions tend
to be complaints against an agency of the state since it is the state that is
charged with safeguarding human rights.
22 [2000] LLR 30 (CAU)
©Mugambi M.P Page 29
Judicial review of executive action extends beyond the traditional sphere
of judicial review in common law, whereby the courts had supervisory
jurisdiction over inferior courts and tribunals, and administrative or quasi
judicial bodies that administered public responsibilities. Traditional judicial
review action is circumscribed by the doctrines of natural justice, the
principles of jurisdiction and ultra vires and the redress of patent illegality
and procedural unfairness. However, traditional judicial review is hobbled
by various limitations and restrictions, such as the requirement for
Wednesbury unreasonableness, or excess of jurisdiction before the court
would agree to act.
Under judicial review of constitutionality of executive actions, none of the
traditional constraints to jurisdiction apply since the courts are not
exercising a common law but a direct constitutional jurisdiction. The
courts have treaded cautiously but firmly in asserting their supervisory
role over the executive. Thus the question of grant of orders against the
government has been considered in several of the reviewed cases.
The constitutional court has declined to grant supervisory orders where it
will be difficult or impartial to enforce compliance. Thus the Kenyan High
Court in Michuki vs. Attorney-General declined to order the Electoral
Commission to redraw boundaries according to a specific formula.
Similarly in Njoya vs. Attorney-General the court declined to order a re-
composition of the Constituent Assembly since it would have been
impossible to establish particular formulae to determine proper and
adequate representation.
©Mugambi M.P Page 30
Where a declaration sufficed, or a straight forward order of mandamus,
the Court would be willing to make the order. Thus in Director of Pensions
vs. Cockar the court issued a certiorari and a mandamus to compel
payment of the proper pension to the retired Chief Justice. Likewise in
Royal Media vs. Commissioner of Customs and Excise where the court
determined that an injunction would be granted to prevent action of
government officials which is irrational, arbitrary or capricious.
6.0 CONCLUSION.
We are wholly persuaded by the force and logic in the case of Njoya vs.
Attorney General23 where justice Ringera (as he then was) said that he
23 (2004) 1 EA 194
©Mugambi M.P Page 31
shall approach constitutional interpretation on the premise that the
Constitution is not Act of Parliament and is not to be interpreted as one. It
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 teologically to give
effect to those values and principles; and that whenever the consistency o
any provision(s) of an Act of Parliament with the Constitution are called
into question, the court must seek to find whether those provisions meet
the values and principles.
7.0 REFERENCES.
BOOKS
EALS Practice Manual Series-Number 3, Constitutional Law Digest (2005)
Ghai, Y.P. Reviewing the Proposed Constitution: A Guide to the
Kenya Constitution. Nairobi: The CKRC Publication, 2002.
Ghai, Y.P. & McAuslan J.P.W.B. Public Law and Political Change in
Kenya London: Oxford University Press, 1970.
Mark Freeman. Making Reconciliations work: the role of parliaments.
Geneva: Inter-Parliamentary Union Publishers, 2005.
©Mugambi M.P Page 32
Marston, J. & Ward, R. Cases and Commentary on Constitutional and
Administrative Law. London: Pitman Publishers, 1997 (4)
Blindenbacher, R & Koller, A (eds) (2003) Federalism in a changing
world Montreal & Kingston: McGill-Queen‘s University Press.
De Villers, S (2001) A people’s government. The people’s voice Cape
Town: Ince Cape De Villiers B & Sindane J (eds) (1996) Managing
constitutional change Pretoria: HRSC Publishers
Ebrahim H (1998) The soul of nation: constitution making in South
Africa New York: Oxford University Press
Gayim, E (2001) The concept of minorities in International law
Rovaniemi: University of Lapland Pres
Heyns C Heyns & M Killander (eds) Compendium of key human rights
documents of the African Union (2007) C Heyns & Killander M (eds)
(2007) Compendium of key human rights documents of the African Union
Cape Town : Pretoria University Law Press
Hyden, G & Venter, D (2001) Constitution-making and
democratization in Africa Pretoria: Africa Century Publications Series
©Mugambi M.P Page 33
Kerwin, CM (2003) Rule making, how government agencies write
law and make policy Washington D.C: CQ Press
Kioko, W (2003) The State of constitutional development in Kenya
Kampala: Fountain publishers
Kubwana, K; Maina PC & Nyangabyaki B (eds) (2001) Constitutionalism
in East Africa, progress challenges and prospects in 1999 Kampala:
Fountain publishers
Massime K & Kibara G (2001) Kenya’ constitutional evolution (1895-
2001) Nairobi: center for governance and development
Mute L (ed) (2004) Constitutionalism in East Africa Kampala:
Fountain Publishers.
Mutua M (2008) Kenya’s quest for democracy: Taming the leviathan
Boulder, Colo: Lynne Rienner Publishers
Mutunga, W (1999) Constitution making from the middle: Civil society
and transition politics in Kenya: 1992-1997 Nairobi: SAREAT Books
Mwagiru M (2008) The water’s edge, mediation of violent electoral
conflict in Kenya Nairobi: Institute of Diplomacy and International
studies
©Mugambi M.P Page 34
McWhinney E (1981) Constitution-making: Principles process and
practice Toronto: University of Toronto Press
Odhiambo M (2004) Constitutionalism under a reformist regime in
Kenya: One Step forward, two steps backwards? Kampala: Fountain
Publishers
Ogot, A & Ocheing, WR (eds) Decolonization and independence of
Kenya 1940- 1993 (1995) London: James Currey Ltd
JOURNALS
Cottrell, J. & Ghai, Y. ‘Constitution making and democratization in
Kenya (2005-2005).’ Democratization. Hong Kong: Taylor & Francis,
2007.
Lumumba, P.L.O. ‘The Kenya’s constitution making journey: Home
at last.’ Paper Presented at Sarova Stanley Hotel on Tuesday, 4 May
2010.
CASES
Akhuya vs. Republic (2002) 2 EA 323
Ami vs. Safari (2001) 1 EA 3
Attorney-General vs. Rwanyarare and Others (2003) 1 EA 9
Director of Pensions vs. Cockar (2000) 1 EA 38
Gachiengo vs. Republic (2000) 1 EA 67
Juma and Others vs. Attorney-General (2003) 2 EA 461
©Mugambi M.P Page 35
Karugaba vs. Attorney-General (2003) 2 EA 489
Kombo vs. Attorney-General (1959-1998) 1 EA 168
Meme vs. Republic (2004) 1 EA 124
Michuki and Another vs. Attorney-General (2003) 1 EA 158
Mwaniki vs. Republic (2002) 2 EA 482
Nakachwa vs. Attorney-General and Others (2002) 2 EA 495
Narok County Council vs. Transmara County Council (2000) 1 EA 161
Ndyanabo vs. Attorney-General (2001) 2 EA 485
Njoya and Others vs. Attorney-General and Others (2004) 1 EA 194
Nyachuma vs. Republic (2004) 1 EA 261
Olum and Another vs. Attorney-General (2002) 2 EA 508
Royal Media vs. Commissioner of Customs and Excise (2002) 2 EA 576
Royal Media vs. Telkom Kenya (2001) 1 EA 210
Rwanyarare and Others vs. Attorney-General (2003) 2 EA 664
SMZ vs. Ali (2001) 1 EA 216
Ssemwogerere and Others vs. Attorney-General (2004) 2 EA
INTERNET SOURCES
Inter-Parliamentary Union. ‘Law and Justice: The Case for
Parliamentary Scrutiny.’ Seminar for Members of Parliamentary Human
Rights Bodies organized jointly by the Association for the Prevention of
Torture, the Inter-Parliamentary Union and the International Commission
of Jurists, Geneva, IPU Headquarters, 25-27 September 2006.Available at
http://www.ipu.org/pdf/publications/law-and-justice-e.pdf (site accessed 20
©Mugambi M.P Page 36
July 2010).contribution by the Secretary General of the International
Commission of Jurists, Mr.N. Howen.
http://kenyalaw.org/caselaws.pdf
http://ivrenc.info/index.php?title=Constitutional_Interpretation_
%28in_Continental_Europe%29
http://www.kenyalaw.org/Downloads_Other/thiankolu_landmarks.pdf
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/barak0906.htm
©Mugambi M.P Page 37