The role of the judiciary in promoting constitutionalism under the 2010 Constitution

Prof Ben Sihanya

The Constitution of Kenya 2010, once fully implemented, will usher in numerous changes to the judicial structure and legal system of Kenya. The institutional and structural change is expected to usher in efficient operations and service delivery of the judiciary. Further, the structural change is aimed at ensuring that the independence of the judiciary is fully achieved. The question we ask is, what role will this restructured judiciary play in promoting the rule of law and constitutionalism in the context of the 2010 Constitution?

Just like other legal concepts constitutionalism has varied definitions. It can be defined as the stability in the organization of the state and adherence to a political ideal about how best to organize government and deliver justice. It is also defined as an acknowledgement by society that the constitution is a living standard with which the conduct of public behaviour should conform, and against which it must be evaluated. In this article, I adopt the definition that constitutionalism is the habitual acceptance of the rules enshrined in the constitution or consistent with constitutional values and principles as the ultimate bases of political choice. I thus interrogate how the judiciary is expected to ensure that there is habitual acceptance of the rules and principles in the constitution. This acceptance should be coupled with adherence by the governed, as well as by the leadership and institutions under the 2010 Constitution.

Where there is habitual acceptance and adherence to principles and rules in the Constitution, the rule of law and the supremacy of the Constitution, which are at the core of Kenya constitutionalism, will be achieved (section 3 of 1969 and Article 2 of 2010 Constitution). At least two realities have led some scholars to question whether it remained categorical on the supremacy of that constitution. These include the amendment to section 3 which introduced the National Accord and Reconciliation Act (NARA), and the fact that section 3 of the Judicature Act (and not the Constitution) stipulates the body of applicable laws and hierarchy.
Article 2 (1) of the 2010 Constitution will be the sole supremacy clause once the relevant transition period is over. It states, “This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.”

Other Articles in the 2010 Constitution clearly indicate that the drafters of the Constitution had intended to secure its supremacy. For example, there are stringent amendment provisions regarding the Bill of Rights, the separation of powers, independence of the judiciary, the Supreme Courts mandate to determine constitutional questions, and the amendment formulae, among other provisions.

There are four crucial roles the Judiciary should play in promoting constitutionalism in Kenya. First, the Judiciary should interpret the Constitution faithfully considering the letter and spirit of the instrument. Thus the Judiciary is expected, while interpreting the Constitution, to ensure that its supremacy is not compromised and further to declare void all legislation or conduct that is inconsistent with the Constitution (Article 2, 159). Several issues are likely to emerge in the interpretative role of the judiciary. For example, can the judiciary “develop” Kenyan constitutional law without violating Article 2? What is the role of the judiciary in constitutional innovation? in policy making?

Second, the Judiciary can promote constitutionalism by enforcing the Constitution 2010 through orders where there has been blatant disregard or neglect in enforcing the Constitution, and more importantly, in enforcing rights of citizens as enshrined in the Bill of Rights.

Third, the Judiciary in implementing the Constitution can play a crucial role in promoting constitutionalism.  Implementation overlaps with interpretation.  Can the Judiciary move suo moto on constitutional matters where the other organs of Government have failed or are intransigent or recalcitrant? What is the import of a declaratory order under Article 261(5) - (7)? Can the judiciary order institutions, for example, Parliament, to pass an important implementation Bill if it fails or neglects or refuses to do so?

Fourth, the Judiciary can promote constitutionalism through careful interpretation, construction or translation of the text in the context of the social, economic, technological, cultural or political question before it. There are constitutional issues that will be brought before the courts that are inherently political. For example, the President’s nomination of the Chief Justice, Attorney-General and Director of Public Prosecutions was largely a political issue. Justice Daniel Musinga carefully ruled that the nominations were unconstitutional.

While all institutions and individuals have the right, liberty and power to interpret the Constitution, the Supreme Court is the ultimate arbiter or authority while interpreting the Constitution, to clearly establish what the law of the Constitution is and that the Constitution is supreme. This will promote constitutionalism and the rule of law.

Prof Sihanya teaches Constitutional Process and Intellectual Property Law at the
University of Nairobi Law School