Can a new constitution transform a society from its history of oppression, injustice, corruption and the marginalisation of the politically weak into one where the rule of law and social justice reign supreme? Can the law alone, even if the very grundnorm that is the constitution, transform a nation from its deep seated culture of intolerance, apathy to corruption and disregard for the vulnerable? This is the question Kenya battles with since the promulgation of the new Constitution on 27 August 2010.

At a June 2014 conference on Shaping and Implementing Transformative Constitutions in Nairobi, Prof. Yash Pal Ghai observed that constitutions today are not simply special statutes ordering the state. Rather, they capture the values and principles that a nation aspires to, seeking to transform itself from its own dark past.

In shaping a country’s “radical rupture from the past”, Justice Albie Sachs at that conference urged that proportionality be the guiding interpretative principle. With proportionality, “there is no right or wrong, no black or white, just a maybe.” But, how can we arrive at legal certainty through “maybe”?

Sachs insisted that “maybe certainty” is purposive, not of the narrow statutory or claimant ends, but the constitutional aspiration for transformation in the historical context of the particular society. “Maybe certainty” is not a negation of but the logical end of fully embracing the “rigour and scientific method of the discipline of law.”

At the Conference, Prof. MP Singh spoke of the tension between the colonially trained Indian judiciary and the socialist-oriented Congress Party executive in the early independence years. Politicians sought to redistribute land and nationalise major industries but judges asserted the right to property. When Indira Gandhi declared a state of emergency, suspended the right to property and cracked down on the courts, the people applauded! Thankfully, the Indian courts accepted the error of their aloofness and adopted probably the most fascinating approach to standing and the capacity of the courts to act by their own initiative (suo motu competence) to redress constitutional violations in any common law country. Apparently, a judge can read something in the paper and satisfied of a prima facie violation, initiate proceedings.

“Maybe certainty” recognises the duty to transform in the context of a society’s particular history. In Kenya’s history, several intertwined factors stand out as central to the political economy of injustice and disregard for the rule of law: electoral violence, collective punishments, intolerance of minorities by the majority, disregard for the absolute human rights and the pervading sense of helplessness in the face of these injustices.

In its 5 decades, nothing has ever truly threatened the existence of the republic and the entirety of the peoples of Kenya - except electoral violence. If Kenya is to see its 100th birthday, more than anything else, prohibiting electoral violence must attain a certain peremptory status in Kenyan electoral law, invalidating any other procedural or even substantive norm. Combating it is the reason we changed so much of our Constitution. Maybe this is the reason the Constitution explicitly states “justice shall be administered without undue regard to procedural technicalities” (Art.159.2.d). In Lisamula v IEBC and others (Petition 9 of 2014), the Supreme Court of Kenya reversed the Court of Appeal’s nullification of a constituency election. The appellate judges had among others, found that incidents of violence attract the high penalty of automatic nullification of an election under Article 81(e) of the Constitution of Kenya that lays down conditions of a free and fair election. But the Supreme Court found that the original petition was filed out of time and therefore the lower courts lacked jurisdiction, an error that affected the Supreme Court’s own appellate jurisdiction. “Jurisdiction is everything” said the Supreme Court citing a 1989 case. Timing is a critical element in the constitutional order on electoral justice. This is true for before 2010, electoral disputes took so long to be concluded that the beneficiaries of disputed elections served out their full 5 year terms before judicial determination. So Kenya’s new electoral laws prescribe strict timelines for both petitioners and courts. Thus, two vexing issues in Kenya’s history clash: violence and expeditious resolution of disputes.

As final authority, the Supreme Court has thus settled the matter. Since Kenya has to go for more elections before the next set of electoral issues are refined, was the choice before Kenyan courts one between violent elections resolved expeditiously or peaceful ones resolved out of time? Could “maybe certainty” have offered a third way? One can only hope that, after the 2017 elections, the Kenyan courts, having impressed the immutability of timing requirements will now turn to electoral violence with the steadfast determination shown for timing and restore the tradition of the 1975 case, Raphael Kithika Mbondo v Luka Galgalo and Paul Ngei (14 of 1975) where then powerful politician Paul Ngei’s election was nullified for using threats of violence against the underdog Mbondo.

Following the Westgate terror attacks in Nairobi in September 2013, Kenyans watched in disbelief as in March and April 2014, large contingents of security personnel zeroed in on the Somali community, especially in the Eastleigh area of Nairobi, conducting mass arrests, separating families, detaining what was alleged to be in the thousands at the largest Kenyan stadium. The Federal Republic of Somalia recalled its ambassador to Kenya after the arrest of a diplomat at his home in Nairobi. Although there were strong protests from rights groups, the government did not back down. Several NGOs sent urgent appeals to the African Commission on Human and Peoples’ Rights, alleging a whole catalogue of human rights abuses including discrimination, sexual abuse and the peremptory ill treatment. The constitutional Kenya National Commission on Human Rights protested being barred from visiting the stadium size police station. By July, the Independent Police Oversight Authority formally found “The operation was not conducted in compliance with the law, respect for the rule of law, democracy, human rights and fundamental freedoms,” and urged criminal and disciplinary action against officers involved.

The Truth, Justice and Reconciliation Commission of Kenya reports similar suffering of the Kenyan Somali community especially during the Shifta War and the Wagalla massacre. Given such distinct historical context, would the Indian practice of judicial activism have been appropriate to stop such manifest collective punishment. Is the loss of public trust in the capacity of the new constitutional dispensation to prevent or stop flagrant abuses even calculable? Is the “maybe certainty” of an inquisitorial common law court necessary to ensure at the very least, some guarantees of non-repetition? The answer to these question remains as, as it were, the jury is still out.

In the face of expanded judicial review and almost universal standing, since 2010, there has been a veritable avalanche of long suffering petitioners rushing to the courts seeking redress. Many have been misplaced about the true power of courts to challenge power structures. Some may even be frivolous and vexatious. But the nature of the societal transformation Kenya’s new Constitution demands is best highlighted when qualified rights clash. Which should prevail? How?

Religious liberty and the right to education present such a conundrum. In South Africa as in Kenya, uniformity is a mainstay of school discipline but, the history of Apartheid urged the Constitutional Court of South Africa to consider that constitutional transformation gave room for each culture to be expressed in the collective. And so, in MEC for Education: Kwazulu-Natal and Others v Pillay, the majority was compelled to accept Ms Pillay’s “unusual” nose ring for it was central to her cultural and religious expression. In India, private schools lost their bid to be exempted from affirmative action that seeks to reverse deep seated prejudice against the “lower castes”. In Europe, however, the European Court on Human Rights has preferred the margin of appreciation in favour of the French state’s assertions of the nature of separation of church and state applicable to France under the European Convention.

In Kenya, Ms SMY’s right to wear a hijab at Kenya High School was rejected by the High Court (Republic v Head Teacher, BOG Kenya High School, ex-parte SMY, eKLR) which preferred that uniformity be preserved at the expense of cultural and religious expression. The court also noted failure to adhere to timing requirements. Also in Kenya, the Adventists, whose peculiar and inconvenient day of worship and adherence to norms of Sabbath day of rest put them at odds with school timetables sought the protection of the courts. In Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others (Petition No. 431 of 2012) the state argued that as religious liberty is a qualified right, not exempting SDA students from Saturday classes, examinations and cleaning is reasonable and justifiable. The right to hold religious beliefs is absolute but its manifestation can be limited by the necessities of an open and democratic society. In this excellent decision, Lenaola, J, set the test for this manifestly delicate question as assessing the harm of limiting the right to individual and community as opposed to the harm caused to [the other"> individual or community were the right to be affirmed as petitioned, and considered every aspect of the balance required. While finding no violation of the Adventist students’ right to religious liberty in the instant case, the judge reiterated that it was unclear whether similar circumstances are afforded all Adventist students in all public schools and therefore ordered that the Minister for Education promulgate regulations and directions for public schools concerning respect for religious liberty, including enforcement and complaints mechanisms. Of significance, too, is that the Adventist faith’s own theological understanding of Sabbath adherence was taken into account. In this, bar and bench must give way to the theologians, just as they would in other matters demanding the technical expertise of other disciplines (ICJ, Corfu Channel case, and the practise of ITLOS in the complex technical determinations that are part of the almost every aspect of the law of the sea).

In SMY’s case, no test is set by the court to weigh the appropriate balance. Neither was the petitioner’s faith itself consulted to weigh the value it places on Muslim girls wearing hijabs. Seemingly, no account of the practice across the country was attended to. This author attended a co-ed primary school where Muslim girls wore hijabs and loose fitting trousers as part of their school uniform. Most importantly, no direction was given to the state to enforce the court’s determination across public schools. Could Ms SMY, like Ms Pillay and Adventist students have been better heard on account that maybe legal certainty can be found in diversity? Is the harm caused by religious manifestation test now the standard of determining conflicts between religious liberty and school policy? What harm do school uniforms suffer from the wearing of hijabs?

The law comes into disrepute, it is my humble opinion, when the competent authorities apply what the Chief Justice of Kenya, Dr Willy Mutunga at the above conference called mechanistic jurisprudence. Proportionality, dialogue, permitting diversity whenever possible, and negotiation ought now to be our guiding principles (Satrose Ayuma & 11 others v Kenya Railways Staff Retirement Benefits Scheme Trustees & 3 others, eKLR).

A former ITLOS judge once told me over coffee, “hard cases make bad law”. The choice between being conservative and liberal, between bad judge-made law and non liquet is a false one for any court interpreting a transformative constitution. Human rights law urges us to breach the horizon and reject the false choices our oppressive history presents us with. In the words of Justice Sachs, “we need both continuity and discontinuity”. Discerning what to continue and discontinue and how to do so, is the task that is laid before Kenyan courts. Finding this balance will not be easy, but, we already have a great constitution. We might as well try, lest the law once again falls into disrepute in the eyes of the Kenyan public.

* Humphrey Sipalla is a freelance editor, researching on pop culture and international law and currently enjoying the exercise of his ICCPR Art.23.2 rights in Nairobi.

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