Inconsistent judgments in the Kenyan High Court

2020

The Republic of South Africa has a constitution that is often lauded as among the best in the world. This can be attributed, at least partly, to the fact that at the heart of it lies transformative constitutionalism, which has the objective of addressing the injustices of the past with the entrenchment of fundamental human rights. Last but not least, the Constitutional Court has to give teeth, metaphorically, to all the human rights in the Bill of Rights. The question this project seeks to answer is whether or not the Constitutional Court does a good jobis consistent-in applying the Bill of Rights to the facts of particular cases. The cases examined in this research project demonstrate that there are inconsistencies in the approach that the Constitutional Court adopts in the adjudication of rights. This study, therefore, attempts to explain why these inconsistencies arise, why they are a problem, and to some degree, how they can be avoided. In an effort to satisfy the above research question and aim of this study, this dissertation is divided into five chapters followed by the requisite bibliography. Chapter 1 introduces the project and gives a historical background to the South African Constitutions with a view to putting the current constitutional position in context. As the inconsistencies seem to play themselves out in the adjudication of rights, the focus of Chapter 2 shifts to the concept of transformative constitutionalism in the hopes of shedding light on why there are inconsistencies in the adjudication of rights. Chapter 3 details the theoretical framework within which judicial decision-making takes place, referring specifically to the work of Ronald Dworkin. This chapter is inextricably linked to Chapter 4 which is an examination of actual applications of judicial decision-making. Finally, Chapter 5 concludes the study and offers some suggestions for the way forward. To briefly note, all the authorities that were consulted for the research are acknowledged in the bibliography. 1 CHAPTER 1 South Africa has had five constitutions since 1910. The first was adopted when the British government decided to withdraw, an action that culminated in a situation whereby the South African government had to be invariably in the hands of the minority who happened to be the white residents of South Africa. This move, which resulted in the unification of the four colonies in South Africa, namely, Natal, Cape, Transvaal, and the Orange Free State, kickstarted legal developments in the country. Of particular significance is the legal development that relates to the establishment of a single Supreme Court with powers to hear the appeals emanating from the Lower Courts and featuring in the legal system of South Africa as the Court with the final say in relation to the decisions that would have been taken by the Lower Courts, with the Lower Courts bound by the decision of the Court of Appeal (although until 1950 there was the right of appeal from the Appellate Division to the Judicial Committee of the Privy Council in London). This 1910 Constitution had legal existence until 1961, the year in which South Africa made the decision to leave the Commonwealth with the result that it became a fully-fledged Republic.

Law Quarterly Review, 2011

2018

This study sets out to critically examine and assess the main limitation provisions of Kenya's constitutional framework in providing a safeguard to the limitation of rights and fundamental freedoms vis a vis the international legal instruments that protect human rights thus setting out an internationally agreed upon standard for the limitation of rights. This study breaks down the provisions and examines it to see if they comply with the minimum requirement of a standard that is derived from an examination of three international instruments that set the stage with regard to the limitation of rights and fundamental freedoms. These instruments are, the African Charter on Human and Peoples Rights (ACHPR), the International Covenant for Civil and Political Rights (ICCPR) and The International Covenant for Economic, Social and Cultural rights (CESCR). Generally, limitation of human rights must take into account the protection of public interest and the rights of the individuals. The ...

2006

Kabarak Journal of Law and Ethics, 2020

This paper interrogates the vexed question of the jurisdictional limits of the Supreme Court of Kenya under article 163(4)(a) of the Constitution of Kenya, 2010. That provision confers a wide jurisdiction to the Supreme Court whose reach is defined as limited to questions involving the 'interpretation and application of the Constitution'. Contrary to claims by many commentators, this paper asserts that the Supreme Court of Kenya has not usurped jurisdiction that was not conferred upon it, rather, the court has remained faithful to the constitutionally prescribed jurisdictional frontiers in its work.

Obiter

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of...

2014

The scope of the Constitution of Kenya, 2010 goes far beyond the traditional understanding that a Constitution structures the relationship of government. It disabuses the Kenyan legal culture of a distinction between public and private law. The scope of the Bill of Rights is comprehensive, as article 20(1) of the Constitution makes plain, many of the rights envisaged in the Bill of Rights bind private individuals and corporations, as well as the state. Article 20(2) provides a textual pointer that depending on the nature of the right in question, private individuals may not be bound by the Bill of Rights in some circumstances. On the other hand, Article 20 (3) of the Constitution enjoins courts to develop the law to give effect to a right or fundamental freedom. While Article 10 of the Constitution introduces a normative value system upon which the Kenyan society must be ordered. This leads to the assertion that the Bill of Rights has a pervasive reach beyond the traditional vertica...

International Journal of Constitutional Law, 2007

This is a pre-publication version of the article that has been published as (2007) 5 International Journal of Constitutional Law 122-152. The text is the same as the published version, which can be accessed on-line from http://icon.oxfordjournals.org/cgi/reprint/5/1/122?ijkey= SQaLFMxbabuy9uz&keytype= ref, except for minor differences in the footnotes. In certain jurisdictions, among them Malaysia, Singapore, and the United States, the practice of consulting comparative legal materials in interpreting domestic bills of rights has been criticized as illegitimate. This article examines four main concerns: (1) the texts of bills of rights-the argument that a bill of rights is to be interpreted within its own "four walls" and not in the light of analogies drawn from other jurisdictions; (2) national identitythe argument that a bill of rights embodies the values of a nation's people, and it is wrong to refer to foreign experiences to determine such values; (3) different domestic conditions-the argument that comparative legal materials do not reflect local economic, political, social, or other conditions that differ from those in other jurisdictions; and (4) certain practical concerns. The article concludes that, notwithstanding these concerns, there are sound justifications for courts to take a comparative approach to the interpretation of bills of rights and substantial benefits to be derived from such an approach. * Ph.D. candidate and postgraduate teaching assistant, School of Law, University of Birmingham, United Kingdom. I thank Dr. Elizabeth A. Wicks, senior lecturer at the School of Law, for her valuable comments on earlier drafts.