By Evans Ogada
When the Nairobi Law Society of Kenya tasked me to speak on a topic and I saw the terms Young and Prowess in the same sentence constituting the heading of that topic, it appeared daunting, an oxymoron of some sorts. Prowess means great ability or skill, while youth, the noun form of the adjective young, means ‘the early period of existence, growth, or development. It therefore appears inherently ironical to vaunt the great skill or ability (prowess) of persons in their early period or existence in the legal profession. Nevertheless, I take the allocated topic to be a challenge; a dare; that young advocates are expected to develop rigour and competence; it is expected of us to scale the stairs while chewing gum. Ladies and gentlemen, that it is our duty, one that we must embrace to and the allure of that call is inescapable.
Winston Churchill reminds us that the price of greatness is responsibility. We have responsibility thrust upon us and live we shall to meet the challenge.
The aspiration to attain great skill or ability that has been thrust on us by divine appointment, fate, sheer luck or conscientious choice and that responsibility is particularly exigent, especially in the context of Constitutional and Human Rights litigation.
It behoves of us to remember that the Constitution and its promise enliven in us the desire to change the fortunes of our society, the waning standards of decency, decorum in public office and constitutionalism in Kenya.
It requires what Justice Emeritus Dikgang Moseneke, Former Deputy Chief Justice of the Republic of South Africa called ‘the courage of principle’. The Courage of Principle, according to Judge Moseneke, bespeaks ‘three fundamental and inter-connected patterns of behaviour;’
- First be the bearer of a vision,
- Secondly, identify concrete steps to pursue and realise the vision
- Thirdly, the preparedness to pay the price for a rigorous pursuit of the vision.
The state of Constitutionalism and the Rule of Law in Kenya today hankers for the Courage of Principle. The national vision, the Kenyan vision is encapsulated in the Constitution. It is the road map. The concrete steps aimed at achieving that vision hinge on a robust constitutional reading and interpretation.
The function of Constitutional reading and interpretation is labyrinthine, complex, contentious but all the while, pivotal, a sine qua non in constitutional extrapolation and meaning. In engaging in Constitutional litigation and adjudication, we have to be prepared for the hazards; Constitutional law by nature checks power, it seeks to delimit governmental authority, it empowers the lowly and the disadvantaged.
It seeks to conform wielders of power to what is prim and proper.
It seeks to test tensile strength of that famous aphorism Power never concedes anything without a demand. It never did. It never will. The price we must pay is to stay the course of eternal vigilance.
We must remain fidel to unadulterated constitutional reading and interpretation. We have to resist the seduction of straying away from principle, tempted by the allure of extraneous annihilators. The Constitution is and remains our assured guarantee of remaining on the path of fidelity to a national vision, fighting for it and if need be, paying the price in its defence. However, the term Constitution is assumed to be axiomatic, common place and one that does not need explaining. That assumption may not be necessarily true; the question that I should then pose is, what then is a Constitution?
Conceptualizing a Constitution
Mahomed J. in the case of the State v. Makwanyane & Mchunu states as follows with regards to the function of a Constitution; ‘All Constitutions seek to articulate, with differing degrees and intensity and detail the shared aspirations of a nation; the values that bind its people and which discipline its government and its national institutions; the basic premises upon which judicial , legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; the moral and ethical direction which that nation has identified for the future.’
Deducting from the conceptualization rendered by Justice Mahomed, a Constitution can be spoken of as evincing the following elements:
- First, the Constitution speaks, it enjoins. The meaning of what it says may not always enjoy consensus but that meaning in a liberal democratic setting such as ours can be discovered and is indeed discoverable because constitutional concepts do have a minimum agreed content, no matter how much discordance can be impugned on their meaning.
The path to the discovery of the agreed minimum is sometimes long and tortuous. It involves disciplined and sustained reading. It involves consistent discovery and questioning of traditionally held views and notions about the Constitution.
It calls for a paradigm shift in thinking and construing the Constitution. The Constitution of Kenya is unique, in the sense that it is a product of struggle; it is inked in precious blood. It presents a decisive break from the past and it is an emphatic rejection of the violent past, where whims, fiats, arbitrariness, authoritarianism, official corruption, insularity and all the vile attributes that came with public governance.
The Constitution 2010 cataclysmically charts a new path by vigorously identifying with a commitment to a ‘democratic, universalistic, caring and aspirationally egalitarian ethos expressly expressed in the Constitution.’
- Secondly, the Constitution aims to check and regulate the exercise of power. In its attribution of the source of power, the Constitution squarely identifies the people of Kenya as both the repository and the grantors of power.
The Constitution as a template of governance and structurally read, requires that the State must and shall be construed to be subservient to the people. The Constitution in its scheme of arrangement, declares there to be an agent-principal relationship, the principal being the people and the agent being the state and her organs.
- Thirdly, the Constitution propounds and venerates a morality, an ethos which can be woven from the express language of the Constitution, a decreed commitment evident in the pre-amble in its call for egalitarianism, respect for architectonic values and principles, demonstrated for example, in article 244, in its edict that the National Police Service must comply with constitutional standards and human rights, in its rightful rejection of archaic habits such as brutality and villainy; the constitution frowns at the imposition of the death penalty as a valid penal consequence and most importantly, the Bill of Rights and Freedoms intends to co-opt an all- inclusive value system. The Bill of Rights envisions the breeding of a national culture.
- The Constitution’s Affliction.
Despite the promise of the Constitution, it has to be admitted that we are in dire straits in so far as the reality and the promised vision of the Constitution are concerned.
We have a chasm, a widening cleavage that should nigglingly prick our conscience as a civic people. The Constitution and its implementation stare at the following as examples of gangrenous sores in its integument:
- A resistant executive that is actively involved in power grab, abuse of it and utter subversion by all rational accounts.
- An ineffective and atrophying legislature.
- Parallelism: Parallelism as a phenomenon manifests in the form of the existence of sub-constitutional law and realities that are enforced in total subversion and/or disregard of the portent constitutional provisions. For example, the High Court recently issued orders for the release of lawyer Miguna Miguna. These orders included inter alia, an order for habeas corpus under article 25, article 25 orders being non-derogable. These orders were roundly ignored by the powers that be. The state machinery that superintends the disregard of Court orders sends the message that we live by our own rules, we do as we want and as we please. We are law unto ourselves. Ladies and gentlemen, when fiats, whims, idiosyncrasies, tastes, appetites and personal choices prevail over and above Court orders thereabout manifests the phenomenon of parallelism.
- Erratic and indisciplined use of discretionary powers: Discretionary power is going to be an ever present phenomenon in governance matters. The use of discretion as a legal-rational norm however presents formidable challenges more so in the context of judicial adjudication in Africa, Kenya not being an exception. ‘African legal systems tend to give broad poorly circumscribed discretionary powers.’ The erratic and indisciplined use of discretionary power obfuscates the line between the rule of the person and the Rule of Law.
The Young Lawyer’s fate: Staying the course or being the morticians?
For the Constitution to realize its ample potential, it requires amplitude of vision. The Constitution stands as a monument to Kenya’s commitment in treating and healing the national afflictions. It is our call to duty to be part of those that shall stay the course that will ensure that the promise, the hope, the potential of the Constitution will usher the cathartic influence into our socio-political fabric as a polity. The converse is true. We can choose to be morticians, the generation that administered the last offices to a Constitution, full of aptitude, a Constitution that inspired vim in Kenyans; our potential ticket to national renewal.
What can be the input of the young lawyers so as to avoid the ignominy of being the generation that read the last rites to such a vibrant Constitution? The reading and interpretation of the Constitution has to depart from the staple habit of regurgitation of case law and emphasis should instead be placed on a disciplined and sustained synthesis of Constitutional principles and constitutional reading.
The employment of case law shouldn’t always be our default action. It can only be a follow up to the synthesis and extrapolation of principle. It any case does not and should not replace disciplined and principled constitutional reading and interpretation.
Constitutional Reading and Interpretation.
Generally, there are several ways in which a Constitution may be read and construed. The archetypes of construing a Constitution have been argued to include the historical argument, the textual argument, the structural argument, the prudential argument, the doctrinal argument and the ethical argument.
The historical argument concerns itself ‘with the intent of the draftsmen of the Constitution and the people who adopted the Constitution,’such intent decipherable from the ‘attitudes, controversies and decisions during which a particular constitutional provision to be construed was proposed and ratified.’
The historical argument would seek to examine ‘the original understanding of a constitutional provision to be construed.’
A historical assessment of a constitutional provision would require an examination of evidence extrinsic to the Constitutional text.
The textual argument seeks to give meaning to the ‘present sense of the words of a provision.’ A Structural argument understands that ‘a particular principle or practical result is capable of being implied from the structures of government and the relationships that are created by the Constitution among citizens and governments.’
A Prudential argument ‘advances particular doctrines’ that are motivated by a Court’s practical wisdom. It is ‘a constitutional argument actuated by the political and economic circumstances surrounding a decision.’
A doctrinal argument reinforces ‘the principles derived from a judicial precedent or from a judicial or academic comment on a precedent.’
An ethical constitutional argument is ‘an argument whose force draws from the characterization of (state) institutions and the role within them of the (state’s) people. Ethical arguments seek to advance ‘the character of a polity as a normative source from where a decision is derived.
Interpreting a Constitutional text: Analyzing the Purposive interpretation in the context of multiple ways of reading of the Constitution 2010
Interpretation has been defined as ‘constituting a process whereby the legal meaning of a text is extracted from its semantic meaning. It is a rational activity through which meaning is given to a text.’ A distinction can be made with regards to the function of interpretation: interpretation with the aim of filling in the gaps and interpretation aimed at giving meaning to a legal text.
The Constitution of Kenya 2010 prescribes the manner in which it should be interpreted. Article 259 declares that the Constitution shall be interpreted in a manner that, inter-alia, promotes its purposes, values and principles as well as advances the rule of law and human rights and fundamental freedoms in the Bill of Rights.
Given the fact that the purpose, values and principles of the Constitution 2010 can easily be identified within the constitutional text, the instruction in peremptory terms under article 259 of the Constitution for meaning to be given to the principles, values and purposes of the constitution call for a purposive reading of the constitution.
‘Purposive interpretation is hinged on the concept of purpose,’purpose being understood as ‘the real intent of the author (the subjective purpose) or the realization of the fundamental values of a system or the intent of the rational author (the objective purpose).’
Comprehensively, the purposive interpretation of the Constitutional text is ‘determined by the relationship between the various subjective elements (the author’s real intent) and the various objective elements (the hypothetical intent of the author or the intent of the legal system).’ Therefore, a purposive reading of the Constitution calls for a much detailed and comprehensive reading of the Constitution.
A comprehensive interpretation of the Constitution would endeavour to test the various methods of Constitutional reading such as to establish which method best serves the purposes of the Constitution. It therefore calls for an evaluation of the historical argument, the textual argument, the structural argument, the prudential argument, the doctrinal argument or the ethical understanding of a Constitutional text such as to establish which of the effectively serves identified purposes of the Constitution in ensuring that its values and principles are given meaning.
For example, and from a historical perspective, the preamble again provides guidance as to the construing of the historical context from where the Constitution emanates; ‘HONOURING those who heroically struggled to bring freedom and justice to our land.’ Further, under article 19 of the Constitution, historical nuances can be traced therein.
It is stated that, ‘the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State,’ and that ‘the rights and freedoms are subject only to the limitations contemplated in this Constitution.’ This is a historical recognition of the overbearing state infrastructure that treated rights as donated charity and their protection as mere benevolence.
It is therefore evident that the Constitution was written in the background of struggle and injustice and therefore, it was imperative that the rights contained in the Bill of Rights needed to have been shielded from the State, which hitherto was and potentially is, a source of injustice leading to collective struggle in defence of our civil liberties.
A structural perspective would discover that the Constitution places the people at the very top of the Constitutional hierarchy with the express declaration that, ‘All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.’
The supremacy of the people is echoed in other provisions namely, that ‘The legislative authority of the Republic of Kenya derives from the people and at the national level, is vested in and exercised by Parliament’ and that ‘No person or body other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.’
The express statement that power draws from the people and that the exercise of authority must respect the will of the people as decreed in the Constitution is reiterated in article 129(1) and 159(1). Another vital component of the structural perspective is that the Constitution has demarcated institutional power and such as to ensure that the institutions respect each other’s sphere of operation, the Constitution expressly states that, ‘No person may claim or exercise State authority except as authorized under this Constitution.’
A prudential approach ‘advances particular doctrines’ that are motivated by a Court’s practical wisdom…… and is ‘a constitutional argument actuated by the political and economic circumstances surrounding a decision,’ is highly discretionary and would permit the Court a lot of leeway in constructing the circumstances within which to make its decision.
Fortunately, the Constitution has provided basic parameters that should guide the exercise of discretion in terms of interpretation, and these guidelines considerably narrow the wide judicial discretion that is afforded by the prudential approach.
Allow me to end by drawing from the Late French Philosopher Jacques Maritain; ‘The Constitution must be the expression of faith to be maintained, no less than a program of actions to be carried out. It is a foundation for convictions shared by all Kenyans.’
Young advocates and indeed lawyers in general, ours is a duty to keep the faith in the Constitution, ours is the fearless attachment to liberty and her fruits; ours is an earnest commitment to respect the precious sacrifice of blood and sweat that birthed the Constitution; ours is to conscientiously remain alive to that rallying call by Judge Dikgang Moseneke, the Courage of Principle. That is the prowess that any advocate can claim to have in matters Constitutional Litigation.
Evans Ogada, L.L.B University of Nairobi; Diploma Kenya School of Law; L.L.M (Candidate-Public International Law) University of Nairobi. This article constitutes a speech that was delivered at the Inns of Court organized by the Law Society of Kenya, Nairobi Branch, held at the Memorial Hall at the Milimani Court Buildings Nairobi on 9th October 2018.