A Platform Commentary on the award of the CB Madan Prize to Lady Justice Mumbi Ngugi
By Walter Khobe
Justice Mumbi Ngugi is one of the world’s great living jurists. Her jurisprudence and legal thought as recounted in my commentary ‘Justice Mumbi Ngugi’s Revolutionary Jurisprudence’ (2015) 10 The Platform pp. 44-52, manifest the value of which the famed African American philosopher, literary scholar, mathematician, and educator Anna Julia Cooper had in mind in her provocative essay, “What Are We Worth?” One is worth quite a lot when one gives more than what is invested in one — to give, proverbially, more than one receives.
Justice Mumbi Ngugi has given far more to Kenya than she has received. In her seven years on the bench as a Judge of the High Court of Kenya, Justice Mumbi Ngugi has left her mark on many areas of the law. As one of the three judges (with Justices Isaac Lenaola and David Majanja) who served on the inaugural Constitutional and Human Rights Division of the High Court after the promulgation of the 2010 Constitution, she has played a significant role in helping to shape the laws of our land, the powers of the government, and the constitutional rights of every Kenyan. She has skillfully addressed the difficult questions we face as a free and democratic society. It is impossible to summarize the depth and breadth of her jurisprudence. The deserved award of the C.B. Madan Prize to her provides an opportunity to look back and reflect on one of the defining contributions by Justice Mumbi Ngugi to legal thought: the question of the presumption of constitutionality of pre-constitutional laws.
Constitutional Falsehoods: The myth of the presumption of constitutionality of pre-constitutional Laws
One of the judiciary’s self-imposed limits on the power of judicial review is the presumption of constitutionality of legislations. In many decisions in which courts have been invited to interpret the constitutionality of a statute, the thought is frequently expressed that a certain presumption of constitutionality is to be attached to legislative action. Under that presumption, it is often said that the burden of proof is on the one attacking the constitutionality of a statute. The presumption of constitutionality thus acts as a barrier which the opponent of the law has to hurdle before the Court can shift a burden of justification on the state to prove that the law conforms to the vision of the Constitution.
In addition, this presumption does not merely mean that the burden of proof lies on the party challenging the constitutionality of a statute; it also means that in resolving a doubt or ambiguity, the court should lean in favour of the validity of the statute.
When one reads decisions by Kenyan courts on the question of constitutionality of legislation one comes across a ritualistic citation of two decisions on presumption of constitutionality of legislations. One of the decisions always cited by Kenyan courts is the dicta by the Supreme Court of India in Hambardda Wakhana v. Union of India Air  AIR 554 that:
“In examining the constitutionality of a statute it must be assumed the Legislature understands and appreciates the needs of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a Legislature enacts laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is therefore in favour of the constitutionality of an enactment.”
The other dicta is that by the Court of Appeal of Tanzania in the celebrated case of Ndyanabo v. Attorney General  EA 495 which was a restatement of the law in the English case of Pearlberg v. Varty  1 WLR 534. In the former, the Tanzanian Court of Appeal held that:
“Until the contrary is proved, a legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative”
As an aside it should be noted that Kenyan courts often do not cite the Ndyanabo dicta in full thus leaving out caveats in the dicta. The full dicta by the Tanzanian Court of Appeal reads:
“Thirdly, until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative. Fourthly, since, as stated a short while ago, there is a presumption of constitutionality of a legislation, save where a clawback or exclusion clause is relied upon as a basis for constitutionality of the legislation, the onus is upon those who challenge the constitutionality of the legislation; they have to rebut the presumption.” (the caveat is in bold)
(See Brian Dennison ‘The Curious Case of ‘Smith Dakota v. North Carolina’: The Pathology of a Bad Cite in East Africa’ for a similar case of Kenyan and Ugandan courts failing to cite a dicta in full thus misconstruing its tenor and import.)
The reason for extending this institutional courtesy (presumption of constitutionality) to legislatures is partly rooted in the Montesquieuan doctrine of separation of powers which holds all three branches of the state, viz., the legislature, judicial and the executive, to be co-equal, and partly on the idea that legislatures are representative of and accountable to their electorate and would hence presumably act in the interests of the people and within the confines of the constitution. (See in this regard: Jack Tsen-Ta Lee, ‘Rethinking the Presumption of Constitutionality’ in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (2017, New York, NY: Routledge))
Thus the doctrine of presumption of constitutionality is based on the assumption that the legislature intends to enact laws that do not contravene the provisions of the Constitution. However, what is absurd is that Kenyan courts have invoked the doctrine to be applicable to pre-constitutional laws. See for example Robert Alai v The Hon Attorney General & Another  eKLR by Justice Chacha Mwita; and Law Society of Kenya v Attorney General & 3 Others  eKLR by Justice Mativo, among other decisions where judges have invoked the presumption of constitutionality when pre-2010 legislative provisions have been challenged as unconstitutional.
The intention of the Legislature to act within constitutional barriers could not possibly be assumed for a time period in which there existed no such barriers to begin with. Even though the intentions of the drafters, in the case of pre-2010 laws, was in compliance with the constitutional norms at the time of the commencement of the law, the changes in the current scenario, must be taken into account while interpreting such pre-2010 laws. The Judiciary, under the presumption of constitutionality, has fallen out of track by following the concept of paying deference to the Legislature. By granting a presumption of constitutionality to pre-2010 laws, it has, in the current scenario, ignored the need to look at the Legislation with respect to the values and principles of the 2010 Constitution.
In comparative context, the Supreme Court of Ireland has held that pre-constitutional statutes do not enjoy a presumption of constitutionality. In De Burca v Attorney General  1 IR 38, the Supreme Court of Ireland held thus at para 45:
“The Act of 1927 is a statute of the Oireachtas [parliament] established under the constitution of Saorstat Eireann, 1922. As such, it enjoys no presumption as to constitutionality, but falls to be examined in common with all other laws in force at the coming into operation of the Constitution with regard to its consistency with the constitution.”
Similarly in ZS v DPP  IESC 49, the Supreme Court of Ireland held thus at paras 25-26:
“25. However, the presumption of constitutionality does not apply to laws passed prior to the coming into force of the Constitution. Walsh J explained in State (Sheerin) v Kennedy  IR 379.p.386: “All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution—not as to their validity but, even assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution.”
26. As the matter was expressed by O’Higgins C.J. in Norris v Attorney General  IR 36 at 54:“However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not.”
In the recent landmark Navtej Johar v Union of India, Writ Petition (Criminal) Petition No. 76 of 2016 by the Supreme Court of India, rendered on 6th September 2018, declaring criminalization of same sex conduct unconstitutional, Justice Nariman rendered himself thus:
“The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.”
Previously, the Supreme Court of India in The State of West Bengal vs Anwar All Sarkarhabib, 1952 SCR 284, speaking through Justice Fazal Ali said that:
“The framers of the [impugned] Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to Article 14 of the present Constitution. … Article 14 … is bound to lead to some inconvenient results and seriously affect some pre-constitutional laws…….Article 14 could not have been before the minds of those who framed it because that Article was not then in existence.”
The Supreme Court of India had revisited this question in Anuj Garg & Others v Hotel Association of India & Others, Appeal (civil) 5657 of 2007 and held thus:
“When the original Act was enacted, the concept of equality between two sexes was unknown. The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible but it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefore would be on the State.”
In NDMC v. State of Punjab (1997) 7 SCC 339 Chief Justice Ahmadi of the Supreme Court of India, took the view that the doctrine of presumption of constitutionality is not of infinite application and would not apply to a pre-constitutional enactment such as the Punjab Municipal Act, 1911. He observed thus:
“[T]he basis of this doctrine is the assumed intention of the legislators not to transgress constitutional boundaries. It is difficult to appreciate how that intention can be assumed when, at the time that the law was passed, there was no such barrier and the limitation was brought in by a constitution long after the enactment of the law.”
Similarly, the High Court of Delhi in Naz Foundation v. Government of NCT of New Delhi and Others, WP(C) No. 7455/2001 held thus:
“At the outset, the Court observed that the Act in question is a pre- constitutional legislation and although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. There is thus no presumption of constitutionality of a colonial legislation.”
The decision by the Supreme Court of India in Gulabbhai v. Union of India [AIR 1967 SC 1110, illustrates the absurdity of the suggestion that an authority should be presumed to have known the limits on its powers, when the limits have been introduced after the power has already been exercised. In that case, the court took the view that the President of India could not be presumed to have been cognizant of limits on the exercise of his powers under Article 240 of the constitution, when such limits were introduced retrospectively after the President had already exercised the power. By analogy, a pre-2010 legislature in Kenya, could not have possibly had any conception of the limits on the powers of the legislature introduced by the constitution in 2010.
The Radiance of Justice Mumbi Ngugi: Single handedly illuminating the logic of justice
Unlike the illogical claim by other Kenyan judges that pre-constitutional claims enjoy a presumption of constitutionality, Justice Mumbi Ngugi is the one judge who has so far explicitly recognized that pre-constitutional legislation do not enjoy the presumption of constitutionality. In Anthony Njenga Mbuti & 5 Others v Attorney General & 3 Others  eKLR, Justice Mumbi Ngugi held thus:
“A fourth important consideration is enunciated in the case of Ndyanabo -vs- Attorney General of Tanzania  EA 495, which is to the effect that there is a general presumption that every Act of Parliament is constitutional. The burden of proving the contrary rests upon any person who alleges otherwise. However, this presumption is qualified by the Constitution of Kenya 2010 in respect to legislation that was enacted prior to its promulgation.”
This lone voice by Justice Mumbi Ngugi in uncovering the logic of the Constitution is reminiscent to the lone path by the revered Justice Hans Raj Khanna, considered by many as the greatest judge to ever serve on the Supreme Court of India, in his celebrated dissent in the ADM Jabalpur v Shivkant Shukla case.
To put the comparison between the Mumbi Ngugi and the legendary Justice Khanna in context, it should be noted that Hans Raj Khanna, served at the Supreme Court of India during 1967-77. He had given many life changing decisions during his judicial tenure but the one that catapulted him to international acclaim was his stand in the Habeas Corpus Case (the ADM Jabalpur case) during Indira Gandhi’s emergency, what is considered to be the darkest hour in Indian democracy.
When Indira Gandhi lost her election case on June 12, 1975, she was granted only conditional stay which meant that she could not exercise her voting or speaking powers in the Lok Sabha and became just a nominal prime minister. She immediately declared a state of internal emergency. This gave her the authority to rule by decree, which allowed her to suspend elections and civil liberties. This type of rule is often used by dictators. Justice Khanna was the only judge in a five-member bench to go against the decision that if a person is ill-treated or his family members are detained without legal authority, he can’t approach the court for any justice and there is no remedy to this situation.
While all the other four judges agreed to this contention and supported the government, Khanna maintained that the state had no power to deprive a person of his life and liberty without legal authority. In his dissent, Khanna said, “What is at stake is the rule of law… the question is whether the law speaking through the authority of the Court shall be absolutely silenced and rendered mute…” The court went by the majority and declared that a person has no remedy for illegal detentions, unauthorized demolitions, murder and mayhem. It has been argued by critics that the Supreme Court of India sanctioned “the rule of lawlessness” by virtue of this decision. For example, the doyen of Indian constitutional theory, the great Indian constitutional theorist and eminent jurist, H.M. Seervai, later famously commented: “The four judgments were delivered in the darkest hour of India’s history after independence, and they made the darkness complete… ordinary men and women would understand Satan saying ‘Evil be thou my good,’ but they were bewildered and perplexed to be told by four learned judges of the Supreme Court, that in substance, the founding fathers had written into the Emergency provisions of our Constitution ‘Lawlessness be thou our law.” (As quoted in Gopal Subramanium ‘Emergency Provisions under the Indian Constitution’ in B. N. Kirpal, et al (eds) Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press, 2000)
The New York Times on 30 April, 1976 wrote an editorial about the case and Justice Khanna’s dissent which has become locus classicus now and opined thus:
“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings… The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.”
The lone path struck by Justices Khanna and Mumbi Ngugi should be an inspiration to later day constitutionalists on the need to uphold and defend the Constitution and uphold the logic of the Constitution even if one were to take a lone stand and go against the grain embraced by the crowd.
The presumption of constitutionality has been used by courts in constitutional cases to maintain a fairly deferential stance towards the legislature. Such deference stems from Kenyan courts’ modest role of judicial review thus a manifest stance of refusal to subject legislative action to rigorous scrutiny. However, as argued in this commentary, the presumption is unwarranted given that debate in parliament during enactment of legislation in the pre-2010 dispensation did not take into account the norms, values, and principles of that revolutionary charter. At any rate, even with respect to the post-2010 legislations where it can be presumed that legislators have given considered thought to the implication of a proposed law to the guarantees and the vision of the 2010 constitution, the judiciary still has a duty to ensure they have done so correctly. In sum, there is an urgent need for a fundamental mindset change by judges concerning their role in the post-2010 constitutional order.