charles b g ouma cuea cls 107 lessons 1 and 2
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cuea, constitutional law, charles,oumaTRANSCRIPT
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CLS 107
MAY TO AUGUST 2011
LESSON 1 & 2
CHARLES B G OUMA
LLB MLB
ADJUNCT FACULTY
Lesson Content
1. Preambular Provisions
2. Directive principles of State Policy
3. Constitutional construction and interpretation
4. Enforcement of constitutional provisions
5. Limitations on fundamental rights and freedoms
6. General Provisions of the constitution
7. Amendment of the constitution
8. The effective date
9. Supremacy of the constitution
10. Additional sources of law
Reading list-Texts
1. Motola and Ramaphosa (2002) pp 13- 126
2. Preambular Provisions; Excerpts from Wiki Pedia
3. Ambani and Kibwana; (2005) The case for
constitutional articulation of directive principles of
state policy in Kenya
4. Muthoni Thiankolu (2007)Landmarks from El Mann
to the Saitoti Ruling
5. Phillip Kichana; The High Court judgment in the
Timothy Njoya and others versus CKRC and the AG
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Reading List• Ongoya Z E; Patrick Ouma Onyango and 12
others vs. The Honourable Attorney general and 2 others: a classical case of misapplying and dis-applying jurisprudence?
• Directive Principles in the constitution of India and Uganda
• Preamble to the constitutions of the USA and Kenya
• The new constitution of Kenya; an analysis by Christopher Ram
Reading List-Case Law: KUT
1. El Mann vs. AG [1969] E.A. 357
2. Githunguri vs. R 1986 KLR 1
3. Felix Njagi Marete –vs.- The AG[1987] KLR 690,
4. Joseph Maina Mbacha and 3 ors vs. AG HC Misc 385 of 1989
5. Matiba –vs.- The Attorney –General Misc. Application No. 666 of 1990
6. Crispus Njogu vs. AG (H.C. CR. Application No. 39 of 2000)
7. Charles Onyango Obbo vs Uganda
Reading List-Case Law: KUT
5. Misc APP No 302 of 200 Stephen Mwai Gachiengo
6. Mary Ariviza v Interim Independent Electoral Commission of
Kenya & another [2010] EKLR
7. CREAW and 6 ors vs. AG HC Petition NO 16 OF 2011
8. Jesse Kamau & 25 others v Attorney General [2010] EKLR
9. Timothy Njoya and Others -Versus- CKRC and The Attorney
General and Others, Misc. Civil Application No. 82 of 2004 (
2004 1 KLR 261)
10. Patrick Ouma Onyango and 12 others vs. The Honourable
Attorney general and 2 others HC Misc 667 of 2005 ( 2005
EKLR)
11. Ndyanabo vs. R 2001 EA 485 (TZ)
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Reading List :Case Law (SA)
1. Makwanyane vs S 1995 (6) BCLR 665 (CC)
2. Du Plessis and ors vs De Klerk and ors 1996 (5) BCLR 658 (CC)
3. Larbi-Odam and ors vs.MEC for Education and anor. 1997(12) BCLR 1665 (CC)
4. National Coalition for Gay and Lesbian Equality and ors vs Minister for Home and ors 200 (1) BCLR 39 (CC)
5. Transvaal Agricultural Union vs. Minister of Land Affairs & anor. 1997(2) SA 621
6. S vs. Zuma 1997 (2) SA 621 CC
Reading List :Case Law-US
1. McCulloch vs. Maryland 17 US 316
2. Madbury vs. Madison 5 US I (Cranch) 137.1803
3. Morrison vs. Olson 487 US 654
4. NYT vs. Sullivan 376 U.S. 254
5. Lochner vs. New York 198 US 45
6. Scott vs. Sanford 60 us 393
7. Scott vs. Emmerson 15 Mo 576
8. Roe vs. Wade 410 US 113
9. IPP vs. Casey
10. BOE vs. Rice
Part 1
Preamblular Provisions and Directive
principles of state policy
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The preamble
• Lesson objectives
• At the end of this topic you should be able to1. Define a preamble
2. Define directive principles of state policy
3. Explain the purpose(s) value(s) of directive principles
4. Discuss the justiciability of the preambular provisions or directive principles
5. Enumerate some countries with directive principles in their constitutions
6. Enumerate the directive principles, if any, in the new constitution
7. Make a case for the inclusion of the directive principles in the new constitution
What is a preamble?
• A preamble is an introductory and
explanatory statement in a document that
explains the document's purpose and
underlying philosophy. When applied to the
opening paragraphs of a statute, it may recite
historical facts pertinent to the subject of the
statute. It is distinct from the long title or
enacting formula of a law.
What is a preamble?
• A preliminary introduction to a statute orconstitution (usually explaining its purpose)
• It sets out the historical, cultural, and politicalreasons for the drafting of the statute orConstitution.
• A preliminary introduction, usually to a formaldocument
• Synonyms�Foreword, introduction, preface, preliminaries,
prelude, prolegomena, prologue
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Example of a preamble
• The Preamble to the United States Constitutionis:
• A brief introductory statement of theConstitution's fundamental purposes andguiding principles.
• In general terms it states, and courts havereferred to it as reliable evidence of, theFounding Fathers‘ intentions regarding theConstitution's meaning and what they hoped itwould achieve.
• Source Wikipedia
Preamble of the US constitution
• We the People of the United States, in Order to
form a more perfect Union, establish Justice,
insure domestic tranquillity, provide for the
common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish this
Constitution for the United States of America. ”
• Source: wikipedia
What are “directive principles of state
policy”?
• If fundamental rights are a kind of guarantee
to establish political democracy, the directive
principles of state policy are instruments to
bring socio-economic democracy.
• They prescribe the fundamental obligations of
the State to its citizens and the duties of the
citizens to the State
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What are “directive principles of state
policy”?
• The Directive Principles of State Policy are
guidelines to be kept in mind while framing laws
and policies.
• These provisions are usually are not enforceable
by any court, but the principles laid down therein
are considered fundamental in the governance of
the country, making it the duty of the State to
apply these principles in making laws to establish
a just society in the country
What are “directive principles of state
policy
• The Directive Principles of State Policy are
guidelines for the framing of laws by the
government.
• These provisions, are not enforceable by the
courts, but the principles on which they are
based are fundamental guidelines for
governance that the State is expected to apply
in framing and passing laws.
History
• Declaration of the rights of man-France
• Declaration of independence of American
colonies
• Irish Constitution
• UN Charter
• Indian Constitution
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Characteristics
• They are not justiciable
• They are aspirational
• They are expresses in broad terms
• May impose duties and responsibilities on
citizens
Purpose
1. They are fundamental to the governance of thecountry
2. They guide executive legislative and judicialaction
3. They are a yardstick of performance
4. They act as a check on the government
5. Aim to create economic and social democracythrough the welfare state
6. Aim to create social and economic conditionsunder which the citizens can lead a good life
Value
1. They are a guide to constitutional interpretation
2. They guide future amendments
3. They act as a touchstone to the validity of laws
4. They help to avoid ad hoc uncoordinated and unprincipled changes to the constitution
5. They are an indication of the intentions of the framers of the constitution
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Countries with directive principles
1. US
2. Ireland
3. India
4. UN
5. Uganda
6. Tanzania
Preamblular/“Directive principles” in the new
constitution
• We, the people of Kenya—
1. ACKNOWLEDGING the supremacy of the Almighty God of all
creation:
2. HONOURING those who heroically struggled to bring
freedom and justice to our land:
3. PROUD of our ethnic, cultural and religious diversity, and
determined to live in peace and unity as one indivisible
sovereign nation:
4. RESPECTFUL of the environment, which is our heritage, and
determined to sustain it for the benefit of future
generations:
Preamblular/“Directive principles” in the new
constitution
1. COMMITTED to nurturing and protecting the well-being of
the individual, the family, communities and the nation:
2. RECOGNISING the aspirations of all Kenyans for a
government based on the essential values of human rights,
equality, freedom, democracy, social justice and the rule of
law:
3. EXERCISING our sovereign and inalienable right to determine
the form of governance of our country and having
participated fully in the making of this Constitution:
4. ADOPT, ENACT and give this Constitution to ourselves and to
our future generations.
• GOD BLESS KENYA
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Something to think about.
• Is the inclusion of the preamble sufficient?
• Was it necessary?
• Should the ‘preamblular’ provisions be
specifically referred to as ‘directive principles’
• Is there a difference between ‘preamblular
provisions’ and ‘directive principles’
Sub-topic 2
Constitutional construction and
interpretation
Lesson objectives
• At the end of this lesson you should be able to ;
1. Discuss the different approaches to constitutionalconstruction and interpretation
2. Explain the fundamental difference between thedifferent approaches
3. Cite and discuss case law on constitutionalinterpretation from KUT and SA US
4. Discuss the underlying social economic legal andpolitical issues underlying the principles governing the
various approaches to constitutional constructionand interpretation
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Interpretation
• Please read Motola and Ramaphosa (2002) pp
13- 126 ( will make it available in the copy
shop between today and Thursday next ,
thereafter it will be in the reference section)
The basis for constitutional
interpretation• Per Ramaphosa and Motola
• We have moved from the west minister model
legislative supremacy to constitutional supremacy
• There are provisions of the constitution that do not
lend themselves to precise measurement and often
call for a value judgment in an area where opinions
may differ
• Many provisions of the constitution , especially the
Bill of Rights, are couched in open ended terms
The basis for constitutional interpretation
• The constitutional court is the final arbiter over the
constitution and has a right to determine what the
vague provisions mean
• Judges use two approaches
1. Constitutional interpretation is a wholly discretionary
exercise that treats the entire text as capable of many
meanings
2. Constitutional interpretation is wholly mechanical, the
meaning of the constitution is embedded in the
constitution itself
• Per Ramaphosa; Neither is wholly satisfactory.
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Per Evans Hughes former CJ of the US
• ‘ We are under a constitution but the
constitution is what the judges say it is, and
the judiciary is the safeguard of our liberty
and of our property under the constitution
• Per Ramaphosa and Motola ‘ this is an
erroneous and dangerous position
Per Kentridge J ;
S vs. Zuma & others 1995 (2) SA 642 CC
• ‘ I am aware of the fallacy of supposing that general
language must have a single ‘objective’ meaning. Nor
is it easy to avoid the influence of one’s personal
intellectual and moral precepts. But it cannot be too
strongly stressed that the constitution does not
mean whatever we might wish it to mean… if the
language used by the law giver is ignored in favour of
a general resort to ‘values’, the result is not
interpretation but divination’
Per Ramaphosa and Motola
• Many provisions of the constitution have
settled meaning and we do not have to go to
the justices to interpret them
• However many provisions of the constitution
are not self defining and have been and will be
objects of judicial interpretation
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Owen Fiss: Constitutional Interpretation
• Constitutional interpretation is a dynamicinteraction between the reader and the text’.There are two concepts involved
1. Disciplining rules or theories ofinterpretation; There are rules limits andstandards by which the validity ofinterpretation is judged
2. The interpretative community; Recognizesthose rules as authoritative
Owen Fiss: Constitutional Interpretation
• Judges have developed different approaches and theories of interpretation
• The idea is to avoid subjective interpretation of the constitution
• The judges are bound by and constrained by these principles
• The principles seek to limit the value determinations judges make in constitutional cases
• These rules are authoritative within the interpretative community of professionals of which judges are part
Methods of interpretation
• There are different approaches non of which is
inherently superior to the others
• It is possible to use more than one approach in the
same case
• The important thing is that the approach should
enjoy broad acceptance within the interpretative
community
• But there is need for consistency in the application of
the approaches
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Two Broad categories
• The many methods, theories and principles can be
classified into two broad categories
• Interpretativist- Formalistic or strict construction.
Restricts interpretation to the text of the
constitution. Extrinsic sources seriously discouraged
• Non- Interpretativist- goes beyond the text. Heavy
reliance on extrinsic sources. Charecterised as the
‘living constitution’ approach
Politics vs. Law
• The issue is whether courts are permitted to
use social policy as an aid to interpretation
• Per Mohammed J in Makwanyane ( 1995 (3)
SA 391; There is a difference between the
political role played by the legislature and the
legal role played by the judiciary
Judicial activism vs. Judicial self
restraint
• Non-Interpretativists insists the law andcannot be divorced
• Judicial self-restraint gives more deference tothe legislature
• Judicial activism asserts that the judiciary isdesigned to be the intermediary between thepeople and the government in order to keepthe government within the limits imposed bythe constitution
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Methods of interpretation (10 of
them)
1. Textualism
2. Intent of the framers
3. Precedent
4. Living constitution as an open ended approach
� The constitution as a living structure
� The purposive approach
� Protection of vulnerable groups: representation-reinforcement
� The living constitution and problems with respect to socio-economic
rights
Methods of interpretation (10 of
them)
6. Background values used to interpret the
constitution
7. Influence of international and foreign law
8. Reliance on common law
9. Influence of traditional African society
10.African contribution to human rights
jurisprudence
Constitutional interpretation in Kenya
• In this part of the lesson, we consider the
following
1. Flash back to the old constitutional dispensation
and the judicial interpretation of constitutional
provisions
2. Interpretation of provisions on fundamental rights
and the question of locus standi.
3. Interpretations on the issue of limitation of actions
arising from violation of constitutional rights
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Constitutional interpretation in Kenya
• Not so long ago many courts in Kenya simplyrefused to enforce the bill of rights
• The ostensible reason was that the Chief Justicehad not made rules under s 84(6) pursuant towhich the enforcement proceedings could bebrought
• These rules were in fact not made until 2001 bythe former CJ and the rules were named the“Chunga rules” after the CJ. Later they wereamended and renamed the ‘‘Gicheru rules’’
Githu’s Verdict
EALJ 2004
The judiciary has serious problems with constitutional interpretation?.
Is the constitution a
• political charter or
• a legal document?
Githu’s Verdict
EALJ 2004
The courts had adopted an unprincipled eclectic pedantic inconsistent and conservative approach to constitutional interpretation approach to constitutional interpretation (Githu Muigai another look at the problem of constitutional interpretation 2004)
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El Mann vs R
1969 EA 357
The constitution is to be construed like any other act of parliament
Gibson Kamau Kuria 1985
The rights under the bill of rights were unenforceable because the chief Justice had not made rules for their enforcement
Matiba –vs- The Attorney –General
Misc. Application No. 666 of 1990
“An applicant in an application under section 84(1) of the Constitution is obliged to state his complaint, the provisions of the Constitution he considers has been infringed in relation to him and the manner in which he believes they have been infringed.
Those allegations are the ones which if pleaded with particularly invoke the jurisdiction of the court under the section.
It is not enough to allege infringement without particularizing the details and manner of infringement.”
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Joseph Maina Mbacha & 3 ors vs. AG
1989
Justice Norbury Dugdale held that the enforcement provisions were as dead as a dodo because the CJ had not made rules under s 84(6)
Gitobu Imanyara vs. AG
1991
The provision under s 2A that Kenya shall be a single party state did not infringe on the freedom of association under s 70(b) and 80
Fotoform & 3 ors vs. AG
1993
Per Dugdale J
Because of s 16 of the Govt Proceedings Act, Cap 40,an injunction could not issue pursuant to s 84, against the government to prevent a violation of a right under the bill of rights
This was despite the clear wording of s 84 which does not limit the type of orders under that section
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Mwangi Stephen Muriithi vs.AG
1981
Civil servants in Kenya hold office at the pleasure of the president
John Harun Mwau vs AG
1988
A citizen could not challenge the action of the state to deny him a passport on the rounds that it denied him his freedom of movement
Raila Odinga vs AG 1988
A citizen could be detained without being given reasons for such detention
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Felix Njagi Marete –vs- The AG
[1987] KLR 690,
Shields J. “The Constitution is not a toothless bulldog nor is it a collection of pious platitudes. It has teeth and in particular these are found in section 84. Both section 74 and 84 are similar to the provisions of other commonwealth constitutions. It might be thought that the newly independent states who in their constitutions enacted such provisions were eager to uphold the dignity of the human person and to provide remedies against those who wield power.”
Njoya
The constitution is not an act of parliament
The court should adopt a broad, liberal, and purposive, construction
The constitution embodies certain values and principles and it is the duty of the court to interpret the constitution in such a manner as to give value to those principles
Samatta CJ Ndyanabo vs.AG
2001 EA 485 (TZ)
It must be construed liberally and purposively
It must be construed in tune with the lofty purposes for which it was made
It must not be crippled with narrow and technical interpretation
The constitution is a living instrument having a soul and a consciousness of its own
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Crispus Njogu vs AG
2000
The constitution is not an act of parliament it must be interpreted broadly or liberally not in a pedantic way
Saitoti’s case
2009
R vs. Judicial Commission of Inquiry into the
Goldenberg Scandal Ex Parte George
Saitoti
Hon Saitoti argued that prosecuting
him on the strength of the Goldenberg report violated his rights to a fair trial
under s 77.
The court agreed
Post Moi
Rumba Kinuthia vs the Attorney General, HC. Misc. App. No.1408 of 2004, a sum of Kshs.1.5 million was awarded in 2008.
James Njau Wambururu vs the Attorney General (supra), where Kshs.800,000/= was awarded in;
Dr. Odhiambo Olel vs the Attorney General, HCCC (Kisumu) No.366 of 1995, a sum of Kshs.12 million was awarded, including exemplary damages of Khs.4 million;
Dominic Arony Amolo vs the Attorney General , a sum of Kshs.2.5 million was awarded in the year 2005, for similar violations;
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Dominic Arony Amolo vs The Attorney
General 2003
The plaintiff’s claim filed in the year 2003 which was more than 20 years after the cause of action arose, was allowed.
Constitutional Application No.128 of 2006 in the matter of Lt. Col. Peter
Ngari Kagume & others vs the Attorney General
• Nyamu J. (as he then was), considering a similar suit stated:
• “The petitioner had all the time to file their claimunder the ordinary law and the jurisdiction of thecourt but they never did and are now counting on theconstitution. None of the petitioners has given anyexplanation as to the delay for 24 years. In my viewthe petitioners are guilty of inordinate delay and inthe absence of any explanation on the delay; thisinstant petition is a gross abuse of the court process
Constitutional Application No.128 of 2006 in the matter of Lt. Col. Peter
Ngari Kagume & others vs the Attorney General
• ……. In view of the specified time limitation in other
jurisdictions the court is in a position to determine what a
reasonable period would be for an applicant to file a
constitutional application to enforce his or her violated
fundamental rights. I do not wish to give a specific time
frame but in my mind, there can be no justification for the
petitioners delay for 24 years. A person whose constitutional
rights have been infringed should have some zeal and
motivation to enforce his or her rights. In litigation of any
kind, time is essential as evidence may be lost or destroyed
and that is possibly the wisdom of time limitation in filing
cases.”
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Wachira Weheire v Attorney- General
[2010] eKLR
• The limitation of actions act does not apply to
actions brought to enforce fundamental rights
and freedoms
Wachira Weheire v Attorney- General
[2010] eKLR
• We have considered the case Lt. Col. Peter
Ngari & Others -Vs- Attorney-General (supra),
which was relied upon by the defendant. We
note that the Judge did not say that there was
a limitation period for filing proceedings to
enforce constitutional rights, though he found
no justification for the delay in that particular
case.
Wachira Weheire v Attorney- General
[2010] eKLR
• We find that, although there is need to bringproceedings to court as early as possible in orderthat reliable evidence can be brought to court forproper adjudication, there is no limitation period forseeking redress for violation of the fundamentalrights and freedoms of the individual, under theConstitution of Kenya. Indeed, Section 3 of theConstitution provides that the Constitution shall havethe force of law throughout Kenya, and if any otherlaw is inconsistent with the Constitution, theConstitution shall prevail
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Comparing the Moi and Post Moi
Era
• Interpretation in the Moi era- Largely
pedantic and restrictive but with some rare
gems like Madan J in Githunguri and Shields J
in Felix Njage Marete. Towards the end of the
Moi era the courts became notably
emboldened
• Interpretation Post-Moi –Largely liberal and
purposive but we still have lapses like those of
Nyamu in Peter Ngare Karume
The new constitutional dispensation
• Enforcement of constitutional provisions enhanced by
1. Prescribing a purposive interpretation
2. Incorporating international law
3. Declaratory not constitutive conferment of rights
4. Locus standi facilitated not frustrated through
devices like amicus curiae and representative
action
5. Technicalities of procedure and formalities are
minimised
6. Invalidating acts done in contravention of the
constitution
The new constitutional dispensation
�Access to justice enhanced through
1. Reasonable or no court fees
2. Jurisdiction extended to subordinate
courts
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Construing the Constitution
• 259. (1) This Constitution shall be interpreted in a mannerthat—
• (a) promotes its purposes, values and principles;
• (b) advances the rule of law, and the human rights andfundamental freedoms in the Bill of Rights;
• (c) permits the development of the law; and
• (d) contributes to good governance.
• (2) If there is a conflict between different language versions of
this Constitution, the English language version prevails.
• Article 259 adopts a non Interpretativistapproach to constitutional interpretation
The law is always speaking!
• Article 259(3)
• Every provision of this Constitution shall be
construed according to the doctrine of
interpretation that the law is always speaking
and, therefore, among other things
Case Law on construction (SA)
1. Makwanyane vs S 1995 (6) BCLR 665 (CC)
2. Du Plessis and ors vs De Klerk and ors 1996 (5) BCLR 658 (CC)
3. Larbi-Odam and ors vs.MEC for Education and anor. 1997(12) BCLR 1665 (CC)
4. National Coalition for Gay and Lesbian Equality and ors vs Minister for Home and ors 200 (1) BCLR 39 (CC)
5. Transvaal Agricultural Union, S vs. Zuma 1997 (2) SA 621 CC
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Case Law on construction-US
• McCulloch vs. Maryland 17 US 316
• Morrison vs. Olson 487 US 654
Case Law on construction KUT
1. Ndyanabo vs R
2. Njoya and 6 ors vs AG and ors
3. Jesse Kamau vs AG
4. Crispus Njogu vs R
5. Paddy Ouma Onyango vs AG
6. Stanley Githunguri vs R
7. Charles Onyango Obbo vs Uganda
Part 3 :Enforcement
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Lesson objectives
• At the end of this lesson, you should be able to
1. Discuss the general and specific enforcement provisions of the new constitution
2. Identify and explain the constitutional issues raised in constitutional enforcement
3. Discuss the typical constitutional enforcement mechanisms
4. Discuss the enforcement mechanisms adopted by the new constitution
5. Discuss the limitation on fundamental rights and freedoms
6. Explain how the new constitution expands access to justice
7. Explain the progressive approaches to constitutional enforcement in the new constitution
Enforcement provisions
• General enforcement provisions article 258
• Specific enforcement provisions
�On consequential legislation Article 261
�On environmental rights Article 70
�On human rights Article 22
The general provisions-
Enforcement of this Constitution
• 258. (1) Every person has the right to
institute court proceedings, claiming that
this Constitution has been contravened, or
is threatened with contravention.
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The general provisions-
Enforcement of this Constitution• 258 (2) In addition to a person acting in their own
interest, court proceedings under clause (1) may be instituted by—
• (a) a person acting on behalf of another person who cannot act in their own name;
• (b) a person acting as a member of, or in the interest of, a group or class of persons;
• (c) a person acting in the public interest; or
• (d) an association acting in the interest of one or more of its members
Constitutional Issues on
Enforcement
1. Judicial review and democracy
2. Centralised vs decentralised jurisdiction
3. Access to court
4. Politics and the appointment of judges
Typical Enforcement mechanisms
1. The courts discretionary power
2. Reading down-presumption of constitutionality
3. Reading in- include the excluded
4. Severance-only to the extent of the inconsistency
5. Invalidations and striking out
6. Mandamus
7. Damages
8. Declaration
9. Injunction
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Enforcement Mechanisms in Article
23
• Article 23 –Powers of the court ( include)
1. Declaration of rights
2. Injunction
3. Conservatory order
4. Declaration of invalidity
5. Order for compensation
6. Order of judicial review
See article 259(4)(b) for meaning of ‘include’
Enforcement mechanisms
• See article 261 (5) to (9) on the power of the
court to compel parliament to enact
consequential legislation to operationalise the
constitution
Enforcement of Bill of Rights
• 22. (1) Every person has the right to institute
court proceedings claiming that a right or
fundamental freedom in the Bill of Rights has
been denied, violated or infringed, or is
threatened.
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Enforcement of Bill of Rights
• 22 (2) In addition to a person acting in their owninterest, court proceedings under clause (1) may beinstituted by––
• (a) a person acting on behalf of another person whocannot act in their own name;
• (b) a person acting as a member of, or in the interestof, a group or class of persons;
• (c) a person acting in the public interest; or
• (d) an association acting in the interest of one ormore of its members.
Enforcement of Bill of Rights
• 22(3) The Chief Justice shall make rules providing for
the court proceedings referred to in this Article,
which shall satisfy the criteria that—
• (a) the rights of standing provided for in clause (2)
are fully facilitated;
• (b) formalities relating to the proceedings, including
commencement of the proceedings, are kept to the
minimum, and in particular that the court shall, if
necessary, entertain proceedings on the basis of
informal documentation;
Enforcement of Bill of Rights
• 22(3)(c) no fee may be charged for
commencing the proceedings;
• (d) the court, while observing the rules of
natural justice, shall not be unreasonably
restricted by procedural technicalities and
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Enforcement of Bill of Rights
• (e) an organisation or individual with
particular expertise may, with the leave of the
court, appear as a friend of the court.
• (4) The absence of rules contemplated in
clause (3) does not limit the right of any
person to commence court proceedings under
this Article, and to have the matter heard and
determined by a court.
Part 3 – Specific application of rights
• Interpretation of this Part
• 52. (1) This Part elaborates certain rights to
ensure greater certainty as to the application
of those rights and fundamental freedoms to
certain groups of persons.
• (2) This Part shall not be construed as limiting
or qualifying any right.
Enforcement of environmental rights
• 70. (1) If a person alleges that a right to a clean and
healthy environment recognised and protected
under Article 42 has been, is being or is likely to be,
denied, violated, infringed or threatened, the person
may apply to a court for redress in addition to any
other legal remedies that are available in respect to
the same matter.
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Enforcement of environmental rights-Article 70
• (2) On application under clause (1), the court may make any
order, or give any directions, it considers appropriate––
• (a) to prevent, stop or discontinue any act or omission that is
harmful to the environment;
• (b) to compel any public officer to take measures to prevent
or discontinue any act or omission that is harmful to the
environment; or
• (c) to provide compensation for any victim of a violation of
the right to a clean and healthy environment.
• (3) For the purposes of this Article, an applicant does not have
to demonstrate that any person has incurred loss or suffered
injury.
Limitation of rights and fundamental freedoms
• 24. (1) A right or fundamental freedom in the Bill
of Rights shall not be limited except by law, and
then only to the extent that the limitation is
reasonable and justifiable in an open and
democratic society based on human dignity,
equality and freedom, taking into account all
relevant factors, including—
Limitation of rights and fundamental freedoms
• (a) the nature of the right or fundamental freedom;
• (b) the importance of the purpose of the limitation;
• (c) the nature and extent of the limitation;
• (d) the need to ensure that the enjoyment of rights
and fundamental freedoms by any individual does
not prejudice the rights and fundamental freedoms
of others; and
• (e) the relation between the limitation and its
purpose and whether there are less restrictive means
to achieve the purpose.
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Access to justice
• 48. The State shall ensure access to
justice for all persons and, if any fee is
required, it shall be reasonable and shall
not impede access to justice.
5 progressive approaches to
enforcement
1. Expanded locus standi
2. Representative action permitted and
broadened
3. Access to justice enhanced
4. Purposive interpretation adopted
5. International standards integrated into our
laws
Constitutional Interpretations
Since August 2010
• HCC Election Petition No 16 of 2011 CREAW
and 7 ors vs AG
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Part 4-General
Lesson Objectives
• At the end of this lesson you should be able to
1. Discuss the transitional provisions of the new constitution
2. Explain the concept of the effective date
3. Explain how the new constitution may be amended
4. Discuss the implications of the inclusion of international law in the sources of law in Kenya
5. Discuss the concept of constitutional supremacy
Transitional provisions
• Article 261 consequential provisions
• Article 262 transitional and consequential
provisions esp. Clauses 4-9
• Article 264 repeal of the existing constitution
• Sixth Sch. Reg. 7 existing laws
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The effective date• 263. This Constitution shall come into force
on its promulgation by the President or on
the expiry of a period of fourteen days from
the date of the publication in the Gazette of
the final result of the referendum ratifying
this Constitution, whichever is the earlier
Amendments
• Articles 255 to 257
1. By parliament 256
2. By popular initiative 257
• Amendments needing referendum 255(1)
• Amendments that do not need referendum
255(3)
• See Articles. 2(2) 10 and 11 sixth sch. Does
the current parliament have the power to
amend the constitution?
Amendments
• Njoya vs AG
• Paddy Ouma Onyango vs AG
• Kanjama and Mungai Sunday Nation 22/29-
08-2010
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Supremacy Of The Constitution
• 2. (1) This Constitution is the supreme law of
the Republic and binds all persons and all
State organs at both levels of government.
• (2)No person may claim or exercise State
authority except as authorised under this
Constitution.
Supremacy Of The Constitution
• (3) The validity or legality of this Constitution
is not subject to challenge by or before any
court or other State organ.
• (4)Any law, including customary law, that is
inconsistent with this Constitution is void to
the extent of the inconsistency, and any act or
omission in contravention of this Constitution
is invalid.
Additional Sources of Law
• (5) The general rules of international law shall
form part of the law of Kenya.
• (6)Any treaty or convention ratified by Kenya
shall form part of the law of Kenya under this
Constitution.
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Case law on supremacy
1. ,Madbury vs. Madison, Roe vs Wade, IPP vs. Casey, NYT vs. Sullivan ,Lochner vs. US, BOE vs. Rice,
2. Makwanyane vs. R,
3. Okunda vs. R
4. Margaret Magiri Ngui vs. R
5. Stephen M Gachiengo vs. AG,
6. LSK vs. AG
7. KBA vs. Minister of Finance
8. Njoya vs. AG
9. Jesse Kamau vs. AG
10. Godfrey Ngotho Mutiso vs. R
END OF LESSON 1 and 2
ANY COMMENTS?ANY QUESTIONS?
CHARLES B G OUMA
LLB MLB
ADJUNCT FACULTY CUEA