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Elements Of Progressive Jurisprudence In Kenya: A Reflection

 

31st May 2012, By The Hon. Dr. Justice Willy Mutunga, SC, Chief Justice / President, Supreme Court of Kenya

Chief Justice, Republic of Kenya

My fellow Judges, our distinguished guests

I feel particularly lucky tonight because of three reasons: It is the second time I am addressing you after the colloquium last year when I read a paper on dressing and addressing the Judiciary; Earlier today we launched our Judiciary Transformation Framework whose clarion call is that we reform or we perish (we have plagiarized this clarion call from the Ivory Tower, the academia) and tonight to hear my address are two fathers of our constitution. Professor Yash Ghai is not only my elder brother, but he is my professor, teacher and mentor. He is one of the leading constitutional scholars in the world. With his wife Jill we have the leading couple in the world working on the area of constitutions. Nzamba, the Chair of the CoE was my student at Faculty of Law, University of Nairobi. Later he became the President of the Law Society when I was active in practice. I am proud he chaired a process that gave us the final draft of our constitution that we ratified through a referendum.

It is a fascinating and challenging time to be a judge in Kenya. And I am not talking about a certain process known as “vetting” that some judges seem to view as a sword of Damocles hanging over their heads. Please don’t think that I am unsympathetic: I am sure that, when one does not know whether one will be “sent home” in a month or so, it makes it very hard to focus. But I am hopeful that, as befits what I believe to be one of the highest callings, namely that of doing justice, my colleagues are striving to put such thoughts aside.

What I want to do this evening is to invite my fellow judges, and the legal profession and the country more broadly, to lift their minds above such challenges, and the daily struggles of other sorts, and to focus on a vision.

That vision, I am sure you will guess, is the vision contained in the Constitution of Kenya: the vision of a new Kenya. My concern is the role of the judiciary in the realisation of that vision.

But let me begin by reflecting briefly on the nature of the judiciary of which we are all a part. We are the heirs, albeit by what you might think of as a bastard route, to a tradition that gives a very powerful place to the judiciary: under the common law system. It is a flawed inheritance because it came to us via the colonial route. The common law as applied in Kenya, at least to the indigenous inhabitants, as in the colonies generally, was shorn of many of its positive elements. We were not allowed freedom of speech, assembly or association. Our judiciary was not independent, but was essentially a civil service, beholden to the colonial administration and very rarely minded to stand up to it. In fact many judicial decisions were taken by administrative officers. There was no separation of powers. And institutions of the people that they trusted were undermined or even destroyed. Indeed the common law was a tool of imperialism. Patrick McAuslan, upon whose book with YashGhai most of you cut your constitutional teeth, satirically said (plagiarising the late nineteenth century poet, HilaireBeloc[1]) “Whatever happens, we have got the common law, and they have not”. We can recall the trial of Jomo Kenyatta: a masterful display of juristic theatre in which the apparent adherence to the rule of law substantively entrenched the illegitimate political system in power at the time.

Colonial mindsets persisted, in the executive, the legislature and, unfortunately, even in the judiciary, even after independence. Our public life was characterised by

  • An absence of a culture of obedience to and respect for rules, and a cavalier treatment of even constitutional text
  • Failed systems including the electoral system
  • Failed institutions including a corrupt judiciary and police force and consequent impunity
  • A population tortured and inhibited from fulfilling its full potential
  • Exclusion of women and many groups from full participation in society
  • Gross manipulation of ethnic divisions by politicians for their personal ends
  • Land grabbing, greed and self-aggrandizement on the part of so called “leaders”
  • Extreme inequality, great poverty and failure of even development
  • A society and politics characterized by violence, fragility and instability.

To return to Kenya’s New Constitution. Its making is a story of ordinary citizens striving and succeeding to overthrow the existing social order and to define for themselves a new social, economic, and political order. They did so, as you have just seen in the short documentary you watched, not by bloodily storming the Palace and overturning the existing social and political order in a Revolution like they did in France more than 223 years ago. Nor did Kenyans win the liberties and social vision now enshrined in the New Constitution through a singular but mighty show of civilian force leading to globally-beamed and regime-breaking demonstration as happened in Egypt a little more than a year ago. Yes, there was innocent blood spilled to get this Constitution. Yes, limbs and lives were lost to get us to witness that most proud moment when the President promulgated the Constitution: lifting it high to show it to the people. And yes, many Kenyans suffered detention without trial or imprisonment on trumped up charges to pave the road to that proud day on August 10th, 2010 when Kenyans finally voted overwhelmingly and unequivocally for the new societal order divined by the New Constitution.

Some have spoken of the new Constitution as representing a second independence. This is when our institutions, and the people, are to come into their own. When the legislature will truly act as the representatives of the people, and the supervisors of the executive. When the executive will put the interests of the nation first, above the interests of tribe, individual and class. And when the curse of impunity will be ended and the rule of law prevails. This will only happen if we all, including the judiciary, play our part, for the forces of resistance are strong.

By the rule of law, I do not mean the sort of mechanical jurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court to reach an apparently technically sound decision that the election of a sitting President could not be challenged because the opponent had not achieved the pragmatically impossible task of serving the sitting President in person. It was mechanical jurisprudence that fuelled the decision of a High Court that the former section 84 of the old Constitution (on enforcement of Bill of Rights) was inoperative because the Chief Justice had not made rules on enforcement as he was obligated by the self-same Constitution to do.

Now therefore is the time for the judiciary to rise to the occasion, and shake off the last traces of the colonial legacy. As I see it, this involves a number of strands or approaches.

There must be no doubt in the minds of Kenyans, or of ourselves, about our impartiality and integrity. No suspicion that we defer to the executive, bend the law to suit our long term associates or their clients, or would dream of accepting any sort of bribe.

Secondly, to be a judge has always been the pinnacle of ambition of any lawyer who actually takes pride in her work. So it should be possible to take for granted that a judge is of high intellectual calibre, with mastery of legal principles and techniques, hard working, and committed to applying these qualities in the task of judging.

We were the inheritors of not only the common law but of English Court procedures. But we have not had our equivalent of the Woolf Report, on Access to Justice in 1996[2], I don’t think we have even had an equivalent of the Evershed Report of 1953. Lord Woolf wrote that the system of civil justice should:

(a) be just in the results it delivers;

(b) be fair in the way it treats litigants;

(c) offer appropriate procedures at a reasonable cost;

(d) deal with cases with reasonable speed;

(e) be understandable to those who use it;

(f) be responsive to the needs of those who use it;

(g) provide as much certainty as the nature of particular cases allows; and

(h) be effective: adequately resourced and organised.

Among the concrete proposals that he made, he said of those concerned with case management:

(a) All cases will progress to trial in accordance with a timetable set and monitored by the court.

(b) For fast track cases there will be fixed timetables of no more than 30 weeks.

(c) The court will apply strict sanctions to parties who do not comply with the procedures or timetables, and

(d) The court will determine the length of the trial and what is to happen at the trial.

Since the implementation of his report, procedure has been much simpler, some archaic terminology has been done away with (there are no more plaintiffs, only claimants), case management has been firmer, and ADR has been much more used. But in Kenya we still have cases which are heard in driblets: half a day here, half a day there, cases where lawyers, parties and witnesses turn up only to find nothing happens, cases where parties fail to produce witnesses for no good reason, and are excused, cases which have to be restarted because a judge has been transferred.

I see in the Constitution, especially Article 159 (2), a mandate for us to carry out reforms tailored to Kenya’s needs, and aimed at doing away with these inefficiencies and injustices. It is perhaps remarkable that, although disappointment with the judiciary was at least as great among wananchi as frustration with politicians, it is also true that the Kenyan people chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

But what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. Patriotism (when not being abused as the “last refuge of the scoundrel” in Samuel Johnson’s words) requires putting love of country above love of self. For a judge it does not mean putting country above justice. I conceive that it requires the judge to develop the law in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision.

Former Justice Krishna Iyer of the Indian Supreme Court expressed the same ambition, in his inimitable style:

Jurisprudence must match jurisdiction and jurisdiction must broaden to meet the challenges of the masses hungry for justice after a long night of feudal-colonial injustice….The rule of law must run close to the rule of life and the court, to be authentic, must use native jural genius, people-oriented legal theory and radical remedial methodology regardless of Oxbridge orthodoxy, elitist petulance and feudal hubris.[3]

It is in this context particularly that I referred to the legacy of the common law. I am not referring to what UpendraBaxi refers to as the “tradition of the common law, which entails a large measure of undue deference to the executive and the legislature” and still less am I one of what whatBaxi calls (I quote) “Anglophile (or may one even say Anglo-Philistines?)”.[4] Few people now maintain the myth that judges in the common law system do not make law. Our Constitution tears away the last shreds of that perhaps comforting illusion, especially in the context of human rights, when it says that “a court shall develop the law to the extent that it does not give effect to a right or fundamental freedom”. I understand some people, even lawyers (I am sure not this distinguished gathering) have found this obscure. As I read it, it means that if an existing rule of common law does not adequately comply with the Bill of Rights, the court has the obligation to develop that rule so that it does comply. And it is matched (in Article 20(3)(b), which follows) by an obligation to interpret statute in a way that also complies with the Bill of Rights. This is an obligation, not to rewrite a statute, but to read it in a way that is Bill of Rights compliant if at all possible.

I would urge that it is not just the Bill of Rights that should be used as the touchstone of legal appropriateness, but the Constitution more generally. The Constitution says no less: it binds all persons and all State organs (of which the judiciary is one); and any law that is inconsistent with the Constitution is void.

The Constitution must be a frame of reference for every lawyer and every judge. Not just those who find themselves sitting in the Constitutional and Human Rights Division, or in criminal trials but those of you who deal with company law, land, commercial transactions, negligence, labour law etc. Again the Constitution makes this clear: that national values bind us all not only when we apply or interpret the Constitution itself, but when we apply or interpret any law (Article 10(1)(b)). And those values include, of course, the rule of law, but also human dignity, equity, equality, social justice, non-discrimination, protection of the marginalised, integrity, transparency and accountability. And “any law” would include, in my view, unless and until counsel convinces me otherwise, rules of the common law, as well as statute.

Is this a daunting task? It is not an easy task, but I do not think it need daunt us. By “patriotic and indigenous” I do not mean insular and inward looking. The values of the Kenyan Constitution are anything but. We can and should learn from other countries. My concern, when I emphasize “indigenous” is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of other jurisdictions and courts, however, distinguished. And, indeed, the quality of our robust, indigenous and patriotic jurisprudence should be a product for export to these distinguished jurisdictions. After all our constitution is the most progressive in the world and we could make the world a better place by exporting our quality jurisprudence.

This task involves a partnership: between the judiciary, the profession and scholars. I hope that the bar, too, will respond to the challenge. Standards of advocacy need to improve, the overall quality of written and oral submissions needs to improve.

It is true that our tradition is in some ways rather a passive one. Francis Bacon said “The parts of a judge in hearing are four: to direct the evidence; to moderate length, repetition, or impertinency of speech; to recapitulate, select, and collate the material points of that which hath been said; and to give the rule or sentence.” I believe that our times, and our Constitution require more than this.

We are trying to move more to detailed written submissions (but not excessively detailed). This makes sense only if the judges read the written submissions in advance. And do so with a critical eye, prepared to interrogate the arguments of counsel. And prepared also to put forward alternative ideas: “Have you thought of this?” “Have you read this recent case?” It is a questionable practice to come up with ideas and authorities in the privacy of your chambers when writing your judgment, if counsel had no chance to put forward argument on those ideas and authorities. The very purpose of written submissions is to try to prevent that happening by enabling the judge to be well prepared in advance. If the judge is well prepared, he or she is in a much stronger position to criticise counsel for not being prepared. In this way the bench can help encourage higher standards of advocacy.

We are trying to make this task easier for you by enhancing the quality and quantity of legal materials available to the bench by and appointing legal researchers. It will be a learning experience for judges as well as legal researchers to work out how the cause of justice can best be served by this innovation. Different judges will no doubt use researchers in different ways. Different researchers will have different skills. But we are confident that this offers an opportunity to make major strides in the quality of the jurisprudence in the courts of Kenya.

I want also to add that these major strides in the quality of jurisprudence in our courts can be amplified if we improved our collegiality and ability to co-educate each other so that the decisions coming out of our courts will reflect the collective intellect of the Judiciary distilled through the common law method as well as through regular discourses and learning by judicial officers. To be a good judge must involve continuous training and learning and regular informal discourses among judges. The Judiciary Training institute must become our institution of higher learning, the nerve centre of this emerging progressive jurisprudence. JTI will co-ordinate our academic networks, our networks with progressive jurisdictions, our training by scholars and judges, starting with our own great scholars and judges. In our training to breathe life into our constitution our jurisprudence cannot be legal-centric; it must place a critical emphasis on multi-disciplinary approaches and expertise. In the first training organized by JTI for the Supreme Court we not had our own Yash and Jill, but also eminent judges including Hon. Mr. Justice Bokhary, Principal Judge of the Hong Kong Court of Final Appeal, Mr. Justice Albie Sachs, former Judge of the Constitutional Court of South Africa and now a member of the Judges and Magistrates Vetting, Board among other judges. We also had an economist and a political scientist train us. One of the presenters was a young lawyer, SekouOwino, who with other young men have a think tank, Braintrust, that helped JTI organize the training.

There is another aspect of growing progressive jurisprudence that we are paying keen interest on: Law Reporting. I am glad that Judge Ojwang will be spearheading for us, along with the National Council on Law Reporting, the improvements that have to be undertaken to make sure decisions that reflect gems of this jurisprudence do not fall through the cracks. I know that Judge Ojwang will look at unreported decisions of the past decades, those particularly of the High Court, and ensure that we did not miss these gems.

Let us hope that the community of scholars responds to the challenge equally. The quality and quantity of Kenyan legal literature is disappointing. We need high quality commentary on the Constitution, and on our laws. And we need high quality commentary on our judgments. We must not be over-sensitive to criticism. No-one learns anything if they are not criticised. We all learned Lord Atkin’s maxim – as long ago as 1936 – “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men”.[5] There are some small shoots of revival in legal writing; let us hope they thrive and multiply.

We need a purposive approach to our task. Indeed, the Constitution tells us precisely that: Article 159(2)(e) says that the courts must protect and promote the purposes and principles of the Constitution. In establishing his framework for purposive interpretation, the then President of the Supreme Court of Israel, Aharon Barak, wrote:

First, the role of the judge is to help bridge the gap between law and society’s changing needs; second … the judge must preserve democracy and defend the constitution….Unless we protect democracy, democracy will not protect us. All branches of government and all individuals, of course, are responsible for preserving democracy. But judges– particularly supreme courts justices – have a special responsibility to protect democracy. …In my view, only purposive interpretation achieves these goals.[6]

I believe that the purposes of the Constitution should dictate our entire role as judges.

Where do we look for giving legal content to our task? As well as the words of the Constitution we need to be conscious of the context in which the Constitution was drafted, and of the time in which we are deciding cases. What the first President of the South African Constitutional Court, Arthur Chaskalson, said of their constitution could just as well be said of ours:

We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom andequality, lies at the heart of our new constitutional order. [7]

For these reasons, including that our Constitution is couched often in language similar to that of South Africa, I anticipate that we shall learn a great deal from them, though always, as I say, suiting the decisions to our own realities.

In the very first case before the South African Constitutional Court, S v Makwanyane ,[8] Justice Yvonne Mokgorowas explicit about the role that values must play in interpreting the Constitution:

The constitution makes it particularly imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society. To this end common values of human rights protection the world over and foreign precedent may be instructive.

I use the word “jurisprudence” deliberately, to mean a coherent body of case law that develops in response to the concrete disputes and circumstances of a particular jurisdiction. To pluck from the worldwide orchard of potential precedent is a demanding enterprise, for bar and bench. It is not appropriate to reach out and pick a precedent from India one day, Australia another, South Africa another, just because they seem to suit the immediate purpose. Each of those precedents will have its place in the jurisprudence of its own country. A negative side of a mechanistic approach to precedent is that it tends to produce the mind-set: “If we have not done it before, why should we do it now?” I am not suggesting that this should be replaced by an uncritical acceptance of whatever apparently appealing judicial fruit a superficial and rather random internet search may turn up.

It is important to understand, at the most elementary level, what sort of response a foreign precedent has elicited on its home ground. At the bare minimum, is it the last word or has it perhaps been overruled, or even reversed on appeal? Has it been, on reasonable grounds, criticised. Has it proved unworkable? Were there circumstances that applied in its home jurisdiction that might make it unsuitable here? Was it perhaps the product of judicial eccentricity, political intrigue, or legal fashion? If it is well argued, none of these need debar it from consideration of course. We are all probably aware that the US Supreme Court has radically changed its direction on certain issues; “separate but equal”, new deal legislation, affirmative action, the death penalty, abortion, will all ring bells with most of us. We are perhaps less aware that some have analysed the history of the Supreme Court of India into rather different phases: seven for one distinguished author.[9] “If we have not done it before, why should we do it now?”, as the reaction to a new jurisprudential idea, should not be replaced by “If they have done it, we should do it too!” but rather by “Let us understand how and why they did it and see if it would suit us”. And the answer to whether it might suit Kenya must lie in our Constitution, in our social circumstances, and in the more progressive aspects of our own legal tradition. In the Makwanyane case cited earlier, in which the South African Constitutional Court had to decide whether capital punishment was constitutional in that country, the court referred, with respect, to decisions of many courts, including the USA, India, Tanzania, the European human rights system, Canada, Germany and Hungary, as well as the purposes of punishment and the issue of effectiveness of the penalty as a deterrent. But in the end the question had to be what was the right decision on the basis of the Constitution of South Africa?

Not only may foreign precedent be instructive, but we may find much in international law that will give flesh to the bones, or bones to the flesh, of our constitutional principles and values.

The Constitution took a bold step and provides that “The general rules of international law shall form part of the law of Kenya” and “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”.[10] Thus Kenya seems to have become a monist state rather than a dualist one!

The implications of this will have to be worked out over time, as cases come before the courts. Even in the past, Kenyan judges have not ignored international law. They have often quoted the Bangalore Principles on Domestic Application of International Human Rights Norms, including:

7. It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law- for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.

8. However, where national law is clear and inconsistent with the international obligations of the State concerned in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation, which is undertaken by a country.

Now, however, the courts have greater freedom. Many issues will have to be resolved: what precisely are the “The general rules of international law”?; what is the effect of the direct application of a treaty of which the language is not self-executing, such as “States Parties shall take all appropriate measures” rather than “everyone has the right”? And what is the effect of a treaty provision that does not fill a gap in domestic law but inescapably conflicts with it? Indeed, we now have great opportunity to be not only the users of international law, but also its producers, developers and shapers.

In order fully to understand the possible implications of Article 2, we must become familiar not only with the words of the treaties themselves, but with the broader international jurisprudence, and the foreign national jurisprudence that has drawn on it. It is not possible fully to understand the significance of the constitutional provisions about economic, social and cultural rights, the use of words like “respect, protect, promote and fulfil”, “progressive realisation” , “accessible and adequate”, without getting to grips with the work of UN special rapporteurs, and monitoring bodies, and also with the decision of countries like South Africa. And in recent years the courts of South America have been giving a lead on the judicial enforcement of these rights, and, with the sorts of caveats entered earlier, I suggest that we might find some inspiration from this source, unusual for insular common lawyers.

I should also like to quote another Bangalore Principle, relevant to my theme of indigenous jurisprudence:

6. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs.

Some of you may feel a bit despondent when I stress the past suspicion of the courts in this country. But the history of legal systems is studded with examples of judiciaries that have resurrected themselves, or risen like Phoenixes from the ashes of their reputations. All the common law jurisdictions except the English were of course once colonial courts. Courts that we now think of as models of judicial independence and integrity had to establish themselves against a background of colonial subservience. The English courts themselves are not the same as those of a past in which Sir Francis Bacon could write: “Let judges also remember, that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.” We today think of the Constitutional Court of South Africa and the Supreme Court of India as being among the great courts of the world. But the Constitutional Court had to establish its reputation in a country in which courts, though technically highly competent, had been viewed as bastions of apartheid, and thus not trusted. And the Supreme Court of India developed its own theory and practice of public interest litigation, which has had a powerful impact on many countries, including upon our own Constitution, as part of a process of rehabilitating itself after a period of abject subservience, on the part of some of its judges, to the executive, notably to Indira Gandhi and her great betrayal of Indian democracy in the declaration of emergency of 1975. While the South African court comprised entirely “new broom” judges, the leaders of the Indian post-emergency renaissance were the self-same judges as had so shamefully kowtowed to Mrs Gandhi.

In some ways our task is rather easier than that faced by some other court systems struggling to establish the validity of their place in the constitutional scheme. The principle of Marbury v Madison, that established the possibility of judicial review of legislation, and at the same time the key place of the courts in the upholding of the US Constitution, is enshrined in our Constitution (Articles 23(3)(d) and 165(3)(d)). So are the basic characteristics of the Indian public interest litigation (Articles 22(2) and 258(2)). Our path has been smoothed: we do not have to strive to establish our role as guarantor of the supremacy of the Constitution, or of the rights of the downtrodden. We are indeed clearly mandated to fulfil these roles.

So, to recap: the people of Kenya wanted the new judiciary to be in the forefront of the task of societal transformation. Some people may think that this statement represents unwarranted hubris, not to mention being anti-democratic. It is important to clarify. The Constitution clearly requires the executive and the legislature, at the national and the county levels to be pro-active in the fulfilment of its vision. In the nature of things, it is far easier for the executive and legislature to take initiatives. It is most likely that the courts will be asked to put the other branches back on the rails because their policies and actions have violated the Constitution. Sometimes they may be able to take some steps to compel action. But if the other branches act in a way that would merit the sort of scathing descriptions that Indian writers have used to describe government there, who can complain if the courts take the initiative, indeed the complaint should be if they do not? I have in mind observations such as those of Rajeev Dhavan:

As Indian governance has dissolved into corruption and there is an increasing spiral of atrocities committed by the state and state officials, the judiciary has exercised greater powers of review over them.[11]

And also he refers to the Supreme Court (and of course this should not be restricted to the highest court) “forcing other institutions of governance to do what they are supposed to do by using new and powerful methods of investigation through public interest litigation”.[12]

Let me again remind you that our Constitution specifically mandates public interest litigation. And that our appointment process is precisely designed to give us independence of the executive and the legislature so that we can if necessary “force other institutions of governance to do what they are supposed to do”. We can only pray that we have the moral stature, the legal skills and the courage to do what we are directed to do.

The responsibilities are awesome. They are also humbling. We must never forget the opening words of Article 1: “All sovereign power belongs to the people of Kenya”. And to us, as to the legislature and executive apply the words of Article 73:

Authority assigned to a State officer—

is a public trust to be exercised in a manner that—

is consistent with the purposes and objects of this Constitution;

demonstrates respect for the people;

… and

vests in the State officer the responsibility to serve the people, rather than the power to rule them.

Finally, Professor UpendraBaxi wrote, of PIL in India,

The Supreme Court of India is at long last becoming…the Supreme Court for Indians. For too long the apex court had become “an arena of legal quibbling for men with long purses”. Now increasingly, the court is being identified by the Justices as well as people as “the last resort of the oppressed and bewildered”.[13]

I hope that the courts of Kenya will truly be viewed as the courts for Kenyans, and the salvation of the Kenyan oppressed and bewildered. And, to return to where I really began: I believe we shall only do this through the rigorous but creative use of the basic values of our Constitution, indeed through the judiciary’s becoming the embodiment of those values, especially of patriotism, social justice and integrity.

I hope through this speech I have managed to spur a constructive debate among all of us about our grund norm; the ultimate binding instrument and covenant that Kenyans have inscribed their social contract with the state and with each other which we are called on to not only interpret but to fulfil and bring life.

Thank you.

Dr. Willy Mutunga, SC

Chief Justice and President of the Supreme Court of Kenya, Nairobi, 31stMay, 2012.


[1] Whatever happens, we have got

The Maxim gun, and they have not.

[2] (1996) You can find the full report on the internet, and the specific extracts quoted here are at http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/overview.htm.

[3] “Judicial Excesses –Myth and Reality” in Our Courts on Trial (Delhi: B R Publishing, 1987) p. 120.

[4] “The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlessness in India” in Kumar and Chockalingam, Human Rights, Justice and Constitutional Empowerment (New Delhi: Oxford University Press, 2007), 3,8.

[5]Ambard v Attorney-General of Trinidad and Tobago [1936] AC 322.

[6]Purposive Interpretation in Law (Translated from the Hebrew by Sari Bashi) (Princeton and Oxford: Princeton University Press, 2005) p. 236.

[7]Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) at para 8.

[8][1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1, para. 302.

[9] Rajeev Dhavan, “Judges and Indian Democracy: The lesser evil?” in Frankel et al, Transforming India: Social and Political Dynamics of Democracy (New Delhi: Oxford University Press, 2000), 314, 325-6.

[10] Art. 2 (5) and (6).

[11]op. cit p. 340.

[12] P. 326. I have substituted ‘through’ for ‘of’ in the original, which seems not to make full sense.

[13] In “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India” in Dhavan et al., Judges and the Judicial Power (London and Bombay: Sweet and Maxwell and Tripathi,

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