To achieve transformation, Kenyan law needs to shun a hierarchy of sources

Author: Humphrey Sipalla
Freelance editor

It is opined by some in Kenya that the regime of former President Moi hardly broke constitutional law. For the most part, it rather, applying provisos and rigid compartmentalised thinking, bended and stretched it absurdly. There may be some truth to this. Previously on this platform, I opined that Kenyan society is prone to absolutes, in that instance, equating legitimate use of force with its disproportionate immoral use in “law enforcement”. It would seem that the legal fraternity too suffers its own peculiar version of this Kenyan tendency to be rigid.

At a conference on transformative constitutionalism, Prof. Ambreena Manji noted that for Kenya to realise the aims of its visionary transformative constitution, we needed a certain conversion of the soul, not just the mind, of the Kenyan jurist. At this same conference, the Chief Justice of Kenya, Dr Willy Mutunga lamented the old judiciary’s reliance of “mechanistic jurisprudence”. Such judicial policy led to the dismissal of the late Wangari Maathai’s (later Nobel Peace Prize Laureate) 1989 case against government plans to build a 60 storey building on Nairobi’s Uhuru Park as she did not show what injury would befall her were the environment to be spoilt. In 1989 too, the High Court held that the Bill of Rights could not be enforced as the Chief Justice had not issued enforcement rules as obligated by the Constitution. In 1993, again, presidential candidate, Kenneth Matiba’s election petition ground to a halt as he was unable to serve the sitting president with suit papers personally.

By dint of Articles 2(5) and (6), the former being disturbingly ambiguous, international law is a source of Kenyan law. The August 2005 draft constitution that was rejected by referendum, provided in Article 3 a list of sources of Kenyan law, including the repetitive sub-article (f) East African laws and (g) customary international law and international agreements. While this list thankfully appears not in the current Constitution, it alludes to a strongly held view in Kenyan legal circles as to a hierarchy of sources. Curiously, just like ICJ Statute 38 (See Judge Moreno’s opinion in Right of passage, ICJ 1960), this proposed list did not expressly declare itself to be a hierarchy.

What is clear today is that while we dispute not the supremacy of the Constitution, we debate strongly as to whether there is a hierarchy of sources of Kenyan law under the Constitution. Under the repealed dispensation, the Judicature Act’s list of sources, through judicial policy and case law, was established as the undisputed hierarchy of sources. Today, we wonder, were a treaty to contradict a statute, which would prevail?

This debate has been conflated with another closely related transitional debate: is Kenya monist or dualist, given Constitution Articles 2(5) & (6). PLO Lumumba and Luis Franceschi seem to offer the most lucid view in Constitution of Kenya, 2010: An Introductory Commentary. Monism or dualism relate to the process by which international law becomes applicable in municipal jurisdictions, not whether statute or treaty can claim supremacy over one another. Neither should this debate be conflated with the question as to how to resolve contradictions within the Constitution itself, or rather, whether sections of a constitution can be “unconstitutional” (the problem in Mtikila v Attorney General in Tanzania).

In Re The Matter of Zipporah Wambui Mathara, the ICCPR’s Article 11 was held to oust provisions of the Civil Procedure Act mandating civil jail for debt. In Beatrice Mathara & Another v AG, the High Court clarified there is no ipso facto treaty supremacy but that the ICCPR is an interpretive aid (Also Diamond Trust v Daniel Mulwa, that ICCPR cannot render statute unconstitutional). John Ambani leans to the view that while it is not clear whether Kenya has transitioned to a monist system, we need a clear declaration of hierarchy. Nicholas Orago (2013) is even clearer: international human rights law ought be placed below the Constitution but above statute (“infra-constitutional but supra-legal”). Oluoch Asher (2013), with an incisive view of international law as it sees itself, insists that international law be duly regarded as law in its own right, not applying its parts that suit narrow national, if not nationalistic, aims.

The relevance of these earlier debates is highlighted by the enduring problems of migration from analogue to digital broadcasting in Kenya. In a series of cases involving constitutional norms, international obligations, statute, regulations and policy decisions, three mainstream Kenyan free-to-air broadcasters battled the regulator’s decisions in matters ranging from procurement to freedom of the media. Wachira Maina (Daily Nation, January 2015) critiques the Supreme Court for reading the Constitution in reverse in its decision on digital migration, using legislation and regulations to limit the Constitution instead of the other way round.

A hierarchy is undoubtedly important, in fact, indispensable, but does it have to be of sources? Prof. Kent Roach, in discussing constitutional remedies, has cautioned against the convenience of rules. Rules tend to be rigid, insensitive to context and lead, in their rigid application, to disproportionate results. I would suggest that a hierarchy of sources is one such rule. Prof. Roach rather counsels preference for principles. Principles, unlike rules, maintain normative clarity without rigidity, can be applied to context and still not lose proportionality.

An example can be seen from international law. The absolute prohibition of torture may be encased in treaties, crystallised in international custom, affirmed by judicial decision or critically analysed in scholarly commentary. Regardless of source, it is its status as a peremptory norm that compels other lesser yet principal norms in international law, such as state obligation to prevent crime, to conform to it.

Thankfully, the Kenyan Constitution does not explicitly contradict any norm of ius cogens stature. Freedom from slavery, torture and the rights to fair trial and habeas corpus have been insulated from any derogation (Article 25). Though a limited list, nothing in the Constitution can be said to indicate sanction the limitation other ius cogens norms like the prohibition of genocide or the arbitrary deprivation of life.

A hierarchy of sources is rigid and lends itself to rule by law (as in the case of the mechanistic jurisprudence cited above). In view of the great task of law reform the 2010 Constitution undoubtedly requires, a source hierarchy would place in abeyance the protection of legal rights and expectations of a transformed society.

It may be time for Kenya’s legal fraternity to consider a principled approach to the hierarchy question. It is not always that international law, even human rights treaties, offers the widest protection in law (See, for instance, South Africa’s reservation to the African Women’s Charter that suggests a wider protection for women’s rights in national law). The same can be said of statute (examples here can be cited ad nauseum).

True, a hierarchy of norms is not an easy hard and fast rule as a hierarchy of sources. It requires a keen examination of the Constitution, and more importantly, of whether treaty or statute, international or local custom, regulation or policy directive conforms to constitutional principles, almost on a case by case basis. Normative hierarchy would better serve Kenya’s transformative Constitution, giving principled logic to the difficult application of doctrines like the separation of powers or validly limiting rights like the manifestation of religion. It is purposive, incorporates proportionality, necessity, legitimate aim and historical context. And constitutional support for such a view could be found in Article 20(3) that mandate courts to develop the law and adopt the most rights favourable interpretation. In other words, in the event of a source clash, test the norms against the Constitution.

The problems of a society in transformation are complex, and in such historical context, simple answers cannot but lead the law to disrepute. While the suggested judicial/legal policy may not entirely save the law from the valid yet biting critique of political scientists and legal philosophers (in addition to Michael Freeman in Beyond the law [2012], I have in mind here John Hasnas’ 1995 article, “The myth of the rule of law”), it nevertheless offers the law a greater possibility for consistent and ethical application, and avoiding absurdity.

About the Author:
Humphrey Sipalla is a freelance editor, fascinated with international law. He teaches part time at Strathmore Law School.