Constitutional Interpretation.

TOPIC:CONSTITUTIONAL INTERPRETATION.

By Mr. MUGAMBI MUHAVI PETER

[LLB Hons (CUEA) ongoing; Dip in Law (IU); GC in IP (WIPO)]1

Email (s): [email protected]

[email protected]

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

http://mugambimuhavi.blogpost.com/

mailto:[email protected]

mailto:[email protected]

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

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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.

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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

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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.

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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)

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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

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http://www.constitution.org/tb/tb-0000.htm

http://www.constitution.org/dfc/dfc_0829.htm

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

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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

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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.

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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

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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.

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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.

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http://www.constitution.org/cons/prin_cons.htm#FN-01

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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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)

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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

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

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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

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

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

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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

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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

http://www.ipu.org/pdf/publications/law-and-justice-e.pdf

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

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/barak0906.htm

http://www.kenyalaw.org/Downloads_Other/thiankolu_landmarks.pdf

http://ivrenc.info/index.php?title=Constitutional_Interpretation_(in_Continental_Europe)

http://ivrenc.info/index.php?title=Constitutional_Interpretation_(in_Continental_Europe)

http://kenyalaw.org/caselaws.pdf

Constitutional Interpretation.

Documents

Transcript of Constitutional Interpretation.