By Mr. MUGAMBI MUHAVI PETER [LLB Hons (CUEA) ongoing; Dip in Law (IU); GC in IP (WIPO)]1 Email (s): Website:

Telephone: (+254) 723282963 Bachelor of Laws (Hons) LLB Degree Catholic University of Eastern Africa. CUEA/LLB/101/8508 2011-2014



1.0 ......3


Legal Researcher to the Rtd.Hon.Justice Kasanga J. Mulwa































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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.

Conservative interpretation2 Logical Interpretation


See R vs. El-mann

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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 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
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expression and it compares any earlier legal text with the new text regulating the same legal matter.


Liberal interpretation


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 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
3 4

See Rev.Timmothy Njoya & Others vs. Attorney General & Others. See Marbury vs. Madison 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)

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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 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.

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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 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.
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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 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
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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.

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 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
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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.
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
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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 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
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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. 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

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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








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.
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
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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, Amendment.
7. The Constitution was intended to define a functionally









complete and


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
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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 "antifederalists" would object is almost certainly incorrect.

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 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.

Delegated powers cannot be subdelegated. The U.S.

Constitution vests all legislative powers in Congress, and all judicial
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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.

The power to regulate is not the power to prohibit all 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.


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 kind of effort, not to do whatever is necessary to get a desired outcome.

There can be no common law crimes. They are in conflict

with the prohibitions on ex post facto laws and bills of attainder.

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
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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.

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.

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.

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 practical concerns and may lag behind the ideals contained in the words.

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
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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.

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.





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.

(1969) EA 357

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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 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 extrajudicial control(Olum vs. Attorney-General No.1), Tinyefuza vs. AttorneyGeneral and Ssemogerere vs. Attorney-General).It has also been held to
6 7

(1995-1998) 1 EA 258 (2002) 1 EA

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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. 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
8 9

(2002) 2 EA (2000) 1 EA

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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 coordinate 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.

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.


(1995-1998) 1 EA

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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. 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


(2001) 1 EA

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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 investigation by FBI officers in Kenya. In Juma and others v AttorneyGeneral, 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

12 13

(2000) 2 EA 514 (2002) 2 EA 323

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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 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

14 15 16

(2004) 1 EA 194 See (2001) 1 EA 127 (1999) 1 EA 254

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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 coordinate 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.


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 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.

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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 AttorneyGeneral’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 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

17 18 19

(2000) 1 EA 67 (2001) 1 EA 253 (2003) 1 EA 158

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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 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

(2004) 1 EA 306

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(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 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
21 22

Constitutional Appeal Number 1 of 1998 [2000] LLR 30 (CAU)

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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.



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. 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

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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 recomposition of the Constituent Assembly since it would have been impossible to establish particular formulae to determine proper and adequate representation. 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.

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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 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.

(2004) 1 EA 194

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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.

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.

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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









democratization in Africa Pretoria: Africa Century Publications Series

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

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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 (18952001) 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 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
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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 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
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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 (site accessed 20 July 2010).contribution by the Secretary General of the International Commission of Jurists, Mr.N. Howen. %28in_Continental_Europe%29
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