URGENT NEED FOR CONSTITUTIONAL SCREENING OF ALL LAWS OF KENYA

By Levi Munyeri[1]

Introduction

The promulgation of our Constitution on 27^th August 2010 sent shockwaves through the laws of Kenya. The framers of the supreme law were weary of legislations that were repugnant to an ideal constitutional order and the basic tenets of justice. Among the core reasons for the constitutional change was the dire need to purify our laws from colonial relics and retrogressive provisions that previous regimes had enacted to achieve unjust ends.

Arguably, the greatest betrayal of the Constitution lies in the fact that Parliament has failed to perform its function of repealing legal provisions that are irreconcilable with the letter and spirit of the Constitution. This inaction has stood out as a grave threat to the constitutional order and administration of justice. The Courts continue to grapple with multiple petitions challenging the constitutionality of laws that are patently unconstitutional. More alarming is that these repugnant laws remain in circulation and enforcement inform the daily decisions of our Courts.

This article thus discusses the constitutionality of our laws and explores paths to identification, repeal and replacement of laws that do not meet the Constitutional threshold.

Colonial and oppressive origins of Kenyan laws

The Kenyan legal system borrowed heavily from English Common Law that we inherited from our former colonial masters. Over the years, English laws have substantially evolved to serve the changing societal needs of the English people. Ironically, in Kenya we have unreasonably retained some colonial English laws despite the changes in our society’s jurisprudential needs.[2] Historically, most of these colonial laws were discriminatorily enacted to oppress Africans and make colonial advances. It is baffling how colonial ordinances have survived in our law books more than five decades after we achieved independence.

The Supremacy of the Constitution

Any law, including customary law, that is inconsistent with the Constitution is void to the extent of its inconsistency, and any act or omission in contravention with the Constitution is invalid.[3] The provision bestows upon the Constitution its resentful instincts towards any legislation that dilutes its spirit.

Original powers to safeguard the supremacy of the Constitution are vested on the High Court. It has original jurisdiction to hear any questions on the interpretation of the Constitution including whether any law is inconsistent with or in contravention of the Constitution.[4]

Since 2010 the Courts have declared sections of more than sixty pieces of legislation as conflicting with the Constitution and hence unconstitutional.[5] These numbers are a clear indication that a significant parts of our legislation are wallowing in unconstitutionality.[6]

Constitutional interpretation is not an exclusive reserve of the Judiciary. All the three arms of the government are obliged to perform their duties within the confines of the Constitution.

Presumption of constitutionality of statutes

The Courts presume that all statutes enacted by parliament are constitutional unless they clearly offend the Constitution. This presumption can be rebutted by petitioning the High Court for a declaration that an entire statute or part of it is unconstitutional.

The Constitution also enshrines a quasi-political path to getting rid of unconstitutional laws. It gives people the right to petition Parliament to enact, amend or repeal any legislation.[7] Unfortunately there is no constitutional reprieve if Parliament chooses to frustrate such a petition.

Impact on the Doctrine of Separation of Powers

Separation of powers is anchored in our Constitution as an inseparable kin to democracy intended to diffuse power from a central organ to the different arms of government.[8] Article 1(3) delegates sovereign powers of the people to the Executive, Legislature and the Judiciary. The might of the Legislature reside in its law making function while the Judiciary is the custodian and interpreter of laws.

Conflict in the interpretation of this doctrine arises when Courts void the law making function of Parliament by annulling legislations. Whilst the powers of Courts to annul legislations are expressly captured in the Constitution, it is doubtful whether Courts can rightfully intrude into an ongoing law making process and halt it for disregarding the law.

Litigants who pursue orders seeking the interference with a legislative process are, more often than not, met by a cautious Court that is reluctant to intrude into the sphere of parliament.[9] Courts can only entertain challenges to the constitutionality of laws after their enactment. A downside of adherence to this aspect of separation of powers is that it persons watching helplessly as an arrogant parliament wastes time and resources to enact laws that are obviously unconstitutional.[10] Disgruntled persons only rush to Court in protest after the law has taken effect.

Jurisdictional setbacks in nullifying laws

The presence of potentially unconstitutional provisions in our legislations leaves magistrates in a dilemma when they encounter these provisions. The Magistrate’s Courts are embarrassed by these legislations especially when they constitute the very basis of a cause of action or defence. Should a magistrate disregard the Constitution and rely on a patently unconstitutional provision to enter a verdict? They may be compelled to do so for want of jurisdiction to interrogate the constitutionality of laws.

  

Even at the High Court, it is still unclear whether there must be a petition directly challenging the Constitutionality of a law for the Court to make a declaration of   unconstitutionality. Some Courts have invalidated laws in instances where there is no specific prayer in the petition seeking a declaration of unconstitutionality.

Semantics of declaring a law unconstitutional

The words that a Court should use to declare a law unconstitutional is also unsettled. The Court of Appeal in Moses Kasaine Lenolkulal -vs- Republic [2019] eKLR asserted that the mere remarks of the High Court that a provision of a legislation stood against the intent and purport behind the leadership and integrity provisions of the Constitution did not suffice as a declaration of unconstitutionality of that provision. This decision emphasized that the judicial exercise of declaring laws unconstitutional is one of far reaching consequences that must be clear and unequivocal.

The apprehensive approach that Courts have taken in deciding unconstitutionality of legislations has resulted in inconsistency and agitation. Constitutional screening of all our laws will relieve Courts of this burden that has resulted in divergent verdicts.

Need to repeal entire legislations

For some legislation, their very intent renders them unconstitutional. Some of them were enacted during colonialism and have long outlived their colonial purposes. Among them is the Witchcraft Act of 1925 that is still law yet the sole reason of its enactment was to outlaw African practices that colonialists considered uncivilized.[11]

Courts have declared entire legislations as unconstitutional when it is apparent that their very purpose threatens the Constitution. This was the fate of the Contempt of Court Act which was declared unconstitutional in its entirety for encroaching on the independence of the judiciary and lack of public participation.[12] The long title of the Act states the purpose of the legislation: to define and limit the powers of Courts to punish for contempt of Court. It openly exposed the unconstitutional goals of the legislation.

Attempts to sanitize these outdated legislations through amendments have been ineffective. They are incurably unconstitutional and no amendment can sanctify them before the eyes of the Constitution.

The colonial Penal Code

The Penal Code is a crucial legislation that squarely falls under the category of archaic legislations.[13] It deserves specific attention because of its bearing to liberties of suspects and accused persons. Any error in the Penal code result can trigger a travesty of justice and wrongfully convict an innocent person to jail.

It is a colonial legislation with a commencement date of 1^st August 1930. Despite the many amendments that it has faced, the legislation continues to reek of colonialism.[14]

Do we lack jurists and legal scholars with the competency of drafting a revamped Penal Code that respects and honors the Constitution? This legislation has bizarre offences that can never pass the Constitutional test. For instance, under section 40, imagining a president dead constitutes the offence of treason that is punishable by death. More bewildering is that defamation of foreign princes is a misdemeanor offence.[15] Criminal defamation is still stuck in the Penal Code even after the High Court in Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR declared it unconstitutional.[16]

It is immaterial that some of these archaic laws are hardly invoked. Their very existence in 

our laws books embarrasses the Constitution.

In a number of instances, the language of the Penal Code falls short of the precision and clarity that is mandatory for criminal offences. This shortcoming is a hindrance to the successful prosecution of criminal cases as any ambiguity in a penal law is interpreted in favour of the Accused person.[17]

For us to claim maturity of our criminal justice system, we need to repeal the Penal Code and replace it with one that reflects the jurisprudential gains in criminal law, both nationally and internationally.

Ongoing enactment of unconstitutional laws

It is expected that legislations enacted in post-2010 should comfortably meet the Constitutional threshold. This is not the case as Parliament continues to enact legislations that are marred with unconstitutional clauses. This raises the suspicion of Parliament intentionally enacting of unconstitutional laws. The legislative arm has sufficient counsel on the constitutionality of bills tabled before it. In fact, a significant number of parliamentarians are reputable lawyers with impressive constitutional backgrounds.

Constitutions without Constitutionalism! Those words were eloquently observed by the celebrated Kenyan Jurist - Professor Okoth-Ogendo, he posited that a nation can have the most progressive Constitution but lack goodwill to implement it towards the achievement of a good constitutional order.[18] Whereas we enacted an ideal Constitution in 2010, Parliament and the Executive are still stuck in the old constitutional dispensation when laws were enacted with ulterior motives that are anti-human rights and good governance.

In the Kenyan history of multiparty democracy, no Parliament has relinquished its independence and surrendered it to a manipulative Executive like the current 12^th Parliament.[19] It has become an appendage of the executive that commands it to legislate as it pleases. Bills are no longer subjected to thorough debates to sieve undesirable provisions as it were the norm in previous Parliaments. Parliament is now a mere rubberstamp of the tyrannical will of the Executive that cares less about constitutionality of legislation.

The role of the Kenya Law Reform Commission

The Kenya Law Reform Commission is established under the Kenya Law Reform Commission Act.[20] The core mandate of the Commission is to keep under review all laws of Kenya to ensure their systematic development and reform, including the integration, unification and codification of the law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments and generally its simplification and modernization.[21]

The commission has made some progress in the fulfillment of this mandate. However, the pace of law reforms is too sluggish to revolutionize our justice system and satisfy the high constitutional expectations.

To further hinder constitutional implementation, Parliament has defied the Fifth Schedule of the Constitution.[22] Glaring cavities remain in implementation of the Constitution because some key legislation that were to be enacted to give it full effect remain non-existent long after the Constitutional timelines lapsed. The constitutionally prescribed consequence for this omission is dissolution of Parliament [23]. All efforts to compel Parliament to enact these legislations or suffer dissolution have been unsuccessful [24].

The way forward

The Judiciary has emerged as a reliable guardian of the sanctity of the Constitution. Judges have been thorough in scrutinizing laws and nullifying those that aim at defeating the Constitution.

As the number of unconstitutional legislations increase, the Kenya Law Reform Commission should rise to the occasion and publish a list of all potentially unconstitutional laws, whether entire legislations or specific provisions. It should then engage the relevant stakeholders in the administration of justice and draft bills to be on standby as proposed replacements of the unconstitutional laws.  Thereafter, the list of all the potentially unconstitutional laws should be submitted to Parliament for repeal.

The smooth repeal and replace process will avoid the creation of voids due to delays in replacement of repealed laws. Public participation and wide consultation will be paramount to the success of this ambitious proposal.

Conclusion

To optimally reap the just fruits of the Constitution, our laws must be sanitized of all unconstitutionality. With a body of laws that passionately share the language and spirit of the Constitution, the rule of law will cement and streamline the administration of justice. The constant friction between the Judiciary and the Legislature will ease as the latter performs its legislative function within the confines of the supreme law.

To fully achieve this milestone of constitutional screening of all our laws, the Legislature and Executive must join the Judiciary in embracing constitutionalism.

[1] Levi Munyeri is a Constitutional Lawyer and an Advocate of the High Court of Kenya 

[2] Section 3 of the Judicature Act (Chapter 8 Laws of Kenya) stipulates that the jurisdiction of Courts shall be exercised in conformity with inter alia all written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to the Act, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August 1897, and the procedure and practice observed in courts of justice in England at that date.(cited in part) 

[3] Article 2(5) Constitution, 2010 

[4] Article 165(3)(d) Constitution, 2010 

[5] Kenya Law, Legislation/Provisions of the Law Declared Unconstitutional. Available at http://kenyalaw.org/kl/index.php?id=8662

[6] With County Assemblies in place, enactment of unconstitutional laws is rampant. Almost all counties have legislations that have been declared unconstitutional. 

[7] Article 119(1) Constitution, 2010 

[8] Kibet E. & Wangeci K. A Perspective on the Doctrine of the Separation of Powers based on the Response to Court Orders in Kenya Strathmore Law Journal, January 2016. Pg 222. 

[9] The Supreme Court in Advisory Opinion Reference 2 of 2013 - In the Matter of the Speaker of the Senate & another [2013] eKLR cautiously advised on the extent at which the Courts can interfere with the law making process in parliament. It opined that whereas legislative process must comply with the Constitution, the Court will not question each and every procedural infraction that may occur in Parliament and cannot supervise the workings of Parliament.(cited in part) 

[10] See Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR 

[11] Act No. 23 of 1925 

[12] Kenya Human Rights Commission v Attorney General & another [2018] eKLR 

[13] Chapter 63, Revised Edition 2012 [2010] 

[14] Muendo M, The Conversation (15th March 2017) Kenyans are still oppressed by archaic colonial laws. Available at https://theconversation.com/kenyans-are-still-oppressed-by-archaic-colonial-laws-73880

[15] Section 67, Penal Code 

[16] In the case, Mativo J lamented: Upon promulgation of the Constitution of Kenya 2010, it was expected that certain provisions in our laws were to be amended to align them to the letter and spirit of the constitution, but almost seven years later we still have such provisions in our statutes! 

[17] For instance Section 297(2) prescribes death penalty for attempted robbery with violence. On the other hand, Section 389 provides a seven-year sentence for “an attempt to commit a felony”. Robbery with violence is a felony and so its punishment can as well be considered to be Section 389. 

[18] Okoth-Ogendo, H.W.O., & American Council of Learned Societies. (1988). Constitutions without constitutionalism: Reflections on an African political paradox. New York: American Council of Learned Societies. 

[19] The Standard (12th January 2016) Kenya Parliament has abandoned oversight role. Available at https://www.standardmedia.co.ke/article/2000187809/kenya-parliament-has-abandoned-oversight-role

[20] Section 4, No.19 of 2013 Laws of Kenya 

[21] Section 3, Law Reform Commission Act & Section 6 No.19 of 2013 Laws of Kenya 

[22] The Schedule lists the legislations to be enacted by Parliament and the timelines within which it should be done. The maximum being 5 years, the Constitution ought to have been fully implemented by the end of 2015. 

[23] Article 261(5) Constitution,2010 

[24]In Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR the Court held that parliament had failed to implement the two-thirds gender rule in elective and appointive bodies. Curiously, the Court declined to grant the prayer of dissolution of Parliament but instead issued an order of mandamus to compelling Parliament to legislate the required laws.