JURISPRUDENCE LAW NOTES

 

WHAT IS LAW?

Evolution of law and society

Man’s life in society has been marked by a movement from small, primitive kinship groups toward larger governmental units. This has raised the question: Where does the state derive its authority? And what entitles law to respect and observance?

Greek thought that has been the basis of western ideas about government and law draws upon a link between the universe, man and the law. In the search for a law that was higher than positive law, philosophers developed the theory of natural law. Natural law, they believed, embodied those elementary principles of justice which were right reason, i.e. in accordance with nature, unalterable and eternal. A classic example is that of Antigone who defied Creon’s command not to bury her slain brother claiming that she was obeying immutable laws higher than the ruler’s command.  
Christian thought built on these foundations and provided a theory of government and law which sought to reconcile authority and justice. The cosmic order, emanating from the mind of God, according to Thomas Aquinas in Summa Theologica, to some extent is perceptible to man’s rational faculties and Natural law provides a universal standard for the formulation and administration of human law. The objective of government and law is thus the common good. Therefore the commands of reason are ever present to guide the law maker, to inform and support the governed and in the extreme case to justify a rejection to the demands of made by human law. However the reformation ended the harmony of this medieval thought.

With the dawn of the age of enlightenment, secular theories of natural law arose detached from religion. According to Grotis, a natural characteristic of human beings is the social impulse to live peacefully and in harmony with others. Whatever conformed to the nature of men and women as rational, social beings was right and just; whatever opposed it by disturbing the social harmony was wrong and unjust. Grotius defined natural law as a ‘dictate of right reason’. John Locke in The Second Treatise of Government imagined the existence of human beings in a state of nature. In that state men and women were in a state of freedom, able to determine their actions, and also in a state of equality in the sense that no one was subjected to the will or authority of another. However, to end the hazards and inconveniences of the state of nature, men and women entered into a ‘social contract’ by which they mutually agreed to form a community and set up a body politic- this is what is referred to as the constituent power of the people. Of the constituent power, Justice Ringera stated as follows  in Njoya & 6 Others V Attorney-General and 3 Others, Misc. Civil Application No. 82 of 2004 “With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgment that in a democracy, and Kenya is one, the people are sovereign. The sovereignty of its people. The Republic is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All Government power and authority is exercised on behalf of the people. The second stop in the recognition that the sovereignty of the people necessarily betokens that they have a constituent power – the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution. Indeed it is not expressly textualized by the Constitution and, of course, it need not be. If the makers of the Constitution were to expressly recognize the sovereignty of the people and their constituent power, they would do so only ex abundant cautela (out of an excessiveness of caution). See also Richard Stacey “Constituent Power and Carl Schmitt’s Theory of Constitution in Kenya’s Constitution-Making Process”, (2011) 9 Int’l J Const L 587

 

REFLECTIONS: Read on the Basic Structure Doctrine as developed by the Indian Supreme Court and the doctrine on substitution of the Constitution as developed by the Constitutional Court of Colombia, and the distinction between “constituent” power and “constituted” powers, in light of this, and the text of the 2010 Constitution, is it appropriate for Kenyan Courts to adopt the Basic structure doctrine on constitutional amendments?

 

Still, in setting up that political authority, individuals retained the natural rights of life, liberty and property. Government was obliged to protect the natural rights of its subjects and if government neglected this obligation, it forfeited its validity and office. Locke’s theory of inalienable sovereignty was further developed by Jean-Jacques Rousseau in The Social Contract. Rousseau states thus: “If then, we eliminate from the social pact everything that is not essential to it, we find it comes down to this – Each one of us puts into community, his person and all his powers under the supreme direction of the general rule, and as a body, we incorporate every member as an indivisibble part of the whole.

Immediately, in place of the individual person of each contracting party, this act of association creates an artificial and collective body composed of as many members as there are voters in the assembly, and by this same act that body acquires its unity, its common ego, its life and its will.  The public person thus formed by the will of all other persons was once called the “city” and area composed of citizens), and is now known as the republic or the body politic.  In its passive name is called the state, when it plays an active role it is the sovereign; and when it is compared to others of its own kind, it is a power.  Those who are associated in it take collectively the name of a people, and call themselves individually citizens, in so far as they put themselves under the laws of the state……”

In this idea of the social contract sovereignty resided or rested with the governed and not the governor.   

Natural law theory is the philosophical impetus for the wave of revolt against absolutism. Its influence is visible in many constitutions and international human rights documents. For example, The preamble to the Kenyan Constitution provides thus: “We, the people of Kenya.. 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..adopt, enact and give this Constitution to ourselves and to our future generations.”

 It affords an appeal on curbing of exercise of naked power by a higher authority. The critical problem with the natural law theory is how to determine norms that are to be considered as part of the law of nature and therefore inalienable. Under Locke’s view of human beings in the state of nature, all that was needed was the opportunity to be self-dependent; life, liberty and property were the inherent interests that met this demand. In a world unlike the times of Locke, the question becomes whether natural law has the potential for flexibility to satisfy new claims based on contemporary conditions and modern human understanding.

Judicial endorsement of the Lockean and Rousseauan social contract to conception of law and society are myriad.

In J Harrison Kinyanjui v Attorney General & another [2016] eKLR Constitutional Petition 74 of 2011 the High Court observed thus:

“Whereas we appreciate that the people are represented in Parliament, it is our view that the present Constitution is partly crafted based on the Lockean social contract theory. This is so when it is appreciated that Article 1(1) of the Constitution, the very first Article, provides that “all sovereign power belongs to the people of Kenya”. It is further important to appreciate that according to the same document at Article 1(2), that sovereign power may be exercised directly or through the people’s democratically elected representatives. When it comes to the exercise of such power through the said representatives, it is important to note that under Article 1(3) the people’s representatives only exercise a “delegated” function. In other words, in the exercise of their power, the said representatives are enjoined to exercise such power in accordance with the will of the people as expressed in the Constitution. Consequently, in performing their delegated function the said representatives must abide by the letter and spirit of the Constitution and must bow to the will of the people.”

 

In Christopher Ndarathi Murungaru v Standard Limited & 2 others, CIVIL NO. 513 OF 2011 [2012] eKLR Justice Odunga stated in a relevant passage thus:

“Democratic societies uphold and protect fundamental human rights and freedoms, essentially on principles that they are in line with Rousseau’s version of the Social Contract theory. In brief the theory is to the effect that the pre-social humans agreed to surrender their respective individual freedom of action, in order to secure mutual protection, and that consequently, the raison d’etre of the State is to facilitate and enhance the individual’s self-fulfilment and advancement, recognising the individual’s rights and freedoms as inherent in humanity. Protection of the fundamental human rights therefore is a primary objective of every democratic Constitution, and as such is an essential characteristic of democracy. In particular, protection of the right to freedom of expression is of great significance to democracy. It is the bedrock of democratic governance. Meaningful participation of the governed in their governance, which is the hallmark of democracy, is only assured through optimal exercise of the freedom of expression. This is as true in the new democracies as it is in the old ones.”

In Dennis Mogambi Mong’are v Attorney General & 3 others, CIVIL APPEAL NO. 123 OF 2012 [2014] eKLR Justice Otieno-Odek thus stated:

“121. In addition to the Kelsenian concept of grundnorm, the natural law and utilitarian theories if applied to the vetting process would find the process legitimate and constitutional. John Locke and Jean Jacques Rosseau observed that law is a social contract. (See John Locke, 1632 -1704 The Second Treatise of Government; see also Of The Social Contract, Or Principles of Political Right (Du contrat social ou Principes du droit politique) (1762) by  Jean -Jacques Rousseau). The 2010 Constitution being the supreme law is  the “social contract” between the three arms of government and the citizens and it embodies the wishes and aspirations of the people of Kenya. It is my considered view that in this social contract, the serving Judges and    magistrates are required to be vetted to determine their individual suitability to continue to serve in office. The people of Kenya freely concluded the new social contract in the 2010 Constitution and Section 23 of the Sixth Schedule  is part of that contract and must be obeyed and enforced.

122. The vetting process and the Vetting Act is also philosophically justifiable as the “general will” as per the views propounded by Jean-Jacques Rousseau (See of the Social Contract, Or Principles of Political Right (Du contrat social ou Principes du droit politique) (1762) by Jean- Jacques Rousseau).  According to Rosseau the ‘general will’ (la volonté générale)  is, by natural    law, the sole and unfettered legal authority in the State. The “general will”is the “will” of the people taken together as a whole, constituting an entity. The  2010 Constitution reflects the general will of the people of Kenya and any individual Judge or magistrate can only continue to hold office and serve  subject to the terms and conditions as laid out in the general will. The Constitution is an amalgam of the interests of the people of Kenya; their aggregated will constitutes the only legitimate basis of the sovereignty and  the goals or value content in Kenya. A Judge is a Judge only by delegation of  the ‘general will’ and could be removed whenever rejected by the ‘general will’. Rousseau’s doctrine implies that the people are the real adjudicators of disputes and they can remove at their discretion any judge presiding over  them. This doctrine is in line with the Article 159 (1) of the Constitution   which stipulates that the judicial power is derived from the people of Kenya, the supremacy of the General Will. As John Austin stated, law is the         command of the sovereign and the people of Kenya are the sovereign. (See John Austin:  The Province of Jurisprudence Determined (1832) John Austin (1790-1859).  I find that the vetting process and the Vetting Act represent the supreme general will of the people of Kenya and it is constitutional.”

For similar views see CHRISTOPHER NDARATHI MURUNGARU v KENYA ANTI-CORRUPTION COMMISSION & another, Misc Civ Appli 54 of  2006 [2006] eKLR

The Social Contract theory has also been used to justify why the state and society should punish individuals or deny them some entitlements when they are perceived to be a threat to the state and society established pursuant to the social contract.

In PRISCILLA NYOKABI KANYUA v ATTORNEY GENERAL & ANOTHER Constitutional Petition 1 of 2010, [2010] eKLR the INTERIM CONSTITUTIONAL DISPUTE RESOLUTION COURT stated thus:

“At the level of political theory there are two justifications for criminal disenfranchisement. The Lockean social contract theory and the Republican citizenship theory. The Lockean theory asserts that criminals have broken the “Social Contract” and should consequently lose the right to participate in the political process. The first objective of denying the inmates the right to vote is enhancing civic responsibility and respect for the law. The social rejection of serious crime reflects a moral line which safeguards the social contract and rule of law and bolsters the importance of nexus between the individual and the community. Republican citizenship theory argues that criminals are less virtuous than other citizens and should therefore be deprived of the right to vote in order to maintain “purity of the ballot box”. In addition it is argued that the disenfranchisement of serious criminal offenders serves to deliver a message to both the community and offenders themselves that serious criminal activity will not be tolerated by the community. The social rejection of serious crime reflects a moral line which safeguards the social contract and rule of law and bolsters the importance of the nexus between individuals and the community.”

In REPUBLIC v FRANCIS KARIKO KIMANI, CRIMINAL CASE NO. 100 OF 2010 [2010] eKLR in addressing the issue of right to bail, Justice Emukule alluded to the social contract thus:  

 “Further, an accused person being a member of society has breached his social contract by committing the serious offence. Society demands that while he is under suspicion, he must be kept aside until that suspicion is removed.”

In contrast to Locke, Thomas Hobbes in The Leviathan has argued that the pre-governmental condition of man, was a war of all against all and in which the life of man was ‘solitary, poor, nasty, brutish and short’. Hobbes attributed the institution of civil government to a compact granting unlimited authority to the sovereign. To Hobbes, the meaning and content of justice were determined by the sovereign’s enactments of positive law. The reason therefore for men to accept the authority of law was the contemplation of their far worse condition in the absence of civil government. To Hobbes sovereignty lay with the sovereign who was not a party to the social pact and even if men repudiated it they could not remove him as between him and them there existed no pact. He believed in monarchical absolutism. John Austin then built on this postulation by Hobbes by defining law as a command of the sovereign backed by the threat of sanctions to assure compliance. Austin expressed his disbelief in the existence of a law of nature and emphasised the principle of utility as the basis for law.

The difference between Hobbes and Locke is that, Locke believed in the governed as the basis of sovereignty, while Hobbes believed in sovereignty, independent of the governed. To Locke under the social contract, power was surrendered not to the sovereign but to the community. Locke thus envisaged the state as the protector of an individual.

REFLECTIONS:

1.      In the so called “Khobe-Okubasu-Oduor” debate published in the Journal of Law and Ethics (2014) Volume 1; Okubasu Duncan Munabi argues that: “There can be no rights in a stateless society-perhaps what can exist are some out –and-out, unrefined and anarchic liberties exercised at the whim of the strong members of such order. Political thoughts of Hobbes indeed portray wretchedness in the absence of a state. What is portrayed is a struggle for survival in the absence of a state, a thought that Locke affirms albeit differently, while essentialising the responsibility of the state to ensure preservation of life, liberty and property (and associated rights). The movement from the state of solitude to a civil society, in Hobbesian depiction, which signified a change of the approach to self-preservation, can be described as indefeasible elucidation of the centrality of the state in the rights discourse. What Khobe appears to be overlooking is this certainty that without the state there can be no recognition, promotion, protection and respect for rights and that there can be no violations of obligations, vertical, horizontal or diagonal!”. Critique the cogency of these assertions

 

2.      In KAPI LTD & another v PYRETHRUM BOARD OF KENYA, Petition 54 of 2012 [2013] eKLR counsel raised a preliminary objection on the fact that the petitioner was a foreignor thus could not claim any rights under the constitution of Kenya. He pointed out that Kenya is not involved in this dispute. Counsel went ahead to submit that the new Constitution establishes a social contract between the State and its citizens and that the only parties who can litigate within the Constitution to enforce their rights are the Kenyan citizens which the 2^nd petitioner is not, because he described himself as a citizen of the United Kingdom and is not a party of the social contract between Kenya and its citizens. What is your view on this point canvassed by counsel?

 

3.      Does/Should the social contract theory serve any practical utility in adjudication of disputes? In reflecting on this question consider the following dicta from the Supreme Court of Canada: Frank v. Canada (Attorney General) 2019 SCC 1, Chief Justice Wagner (writing for the majority) held thus:  “[53]  Perhaps most importantly, the social contract theory is just that: a theory. Preserving it is not an objective. Although moral philosophy doubtlessly has some role to play in the legislative sphere, it cannot readily serve as a source for a pressing and substantial objective in relation to an infringement of Charter  rights, and any argument to that effect will require careful scrutiny. For the purposes of the s. 1 analysis, the “social contract” model that has been advanced in this case is devoid of content, and problematically vague. It also has analytical failings: it is at once too general, providing no meaningful ability to analyze the means employed to achieve it, and too narrow, effectively collapsing any distinction between legislative means and ends.” In contrast, emeritus Chief Justice McLachlin held in Sauvé v. Canada (Chief Electoral Officer) 2002] 3 SCR 519 that: “47 The social compact requires the citizen to obey the laws created by the democratic process.  But it does not follow that failure to do so nullifies the citizen’s continued membership in the self-governing polity.  Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order.  Certain rights are justifiably limited for penal reasons, including aspects of the rights to liberty, security of the person, mobility, and security against search and seizure.  But whether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact.  Indeed, the right of the state to punish and the obligation of the criminal to accept punishment are tied to society’s acceptance of the criminal as a person with rights and responsibilities.”

 

4.      Read on the Mutakha Kangu –Duncan Okubasu on the social contract theory as published in: John Mutakha Kangu, The Social Contractarian Conceptualisation of the Theory and Institution of Governance, (2007) 1(2) Moi University Law Journal p. 1, and Duncan Okubasu ‘A Critique of Mutakha Kangu’s Conceptualisation of the Theory of the Institution of Governance’ (2017) 2 Journal of Law and Ethics; whose views do you support?

 

What is ‘law’?

In its common understanding, law is viewed in terms of rules: A rule prescribes what activity may, should or should not be carried out, or refers to activities which should be carried out in a specified way. Rules of law may forbid certain activity or they may impose certain conditions under which activity may be carried out. The law contains some rules which we might call ‘power conferring’: rules which enable certain activities to be carried out with some form of legal backing and protection.

Because a rule guides us in what we may, ought or ought not to do, it is said to be normative. We can grasp the meaning of this term if we contrast a normative statement, telling is what ought to happen, with a factual statement, which tells us what does happen. All rules, whether legal, moral or just customary, are normative, laying down standards of behaviour to which we ought to conform to if the rule affects us.

However this does not equate law to a ‘system of rules’ because in any social group, there are various ‘systems of rules’ apart from law. For example, there are legal rules and moral rules; legal rules and rules of custom and etiquette. Clearly, there are differences between these types of rules, and perhaps the only feature which they all have in common is their normativeness/Normativity.

The analysis of law and its distinctions from other rules is difficult to articulate. There are two major perspectives on legal analysis.

The first major approach is the theory of ‘legal positivism’- first made popular by the nineteenth century philosopher John Austin. This theory was later elaborated upon by H.L. A. Hart. Positivism has a few central and organising propositions. These key tenets may be stated as follows:

a)      The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by the public power. These special rules can be identified and distinguished by specific criteria, by tests having to do not with their content but with their pedigree or the manner in which they were developed or adopted. These tests of pedigree can be used to distinguish valid legal rules from spurious legal rules (rules which lawyers and litigants wrongly argue are legal rules) and also from other sorts of social rules (generally lumped together as ‘moral rules’) that the community follows but does not enforce through public power.

b)      The set of these valid legal rules is exhaustive of the ‘law’, so that if someone’s case is not clearly covered by such a rule (because there is none that seems appropriate, or those that seem appropriate are vague, or for some other reason) then that case cannot be decided by ‘applying the law’.

c)      To say that someone has a ‘legal obligation’ is to say that his case falls under a valid legal rule that requires him to do or to forbear from doing something. (To say he has a legal right, or has a legal power of some sort, or a legal privilege or immunity, it so assert, in a shorthand way, that others have actual or hypothetical legal obligations to act or not to act in certain ways touching him). In the absence of such a valid legal rule there is no obligation.

This is only the skeleton of positivism. The flesh is arranged differently by different positivists, and some even tinker with the bones. Different versions differ chiefly in their description of the fundamental test of pedigree a rule must meet to count as a rule of law.

John Austin, for example, in the book ‘The Province of Law Determined’ framed his version of the fundamental test as a series of interlocking definitions and distinctions. He defined having an obligation as lying under a rule, a rule as a general command, and a command as an expression of desire that others behave in a particular way, backed by the power and will to enforce that expression in the event of disobedience. He distinguished classes of rules (legal, moral, or religious) according to which person or group is the author of the general command the rule represents. In each political community, he thought, one will find a sovereign – a person or determinate group whom the rest obey habitually, but who is not in the habit of obeying anyone else. The legal rules of a community are the general commands its sovereign has deployed. Austin’s definition of legal obligation followed from this definition of law. One has a legal obligation, he thought, if one is among the addressees of some general order of the sovereign, and is in danger of suffering a sanction unless he obeys that order.

Austin’s model is quite beautiful in its simplicity. It asserts the first tenet of positivism, that the law is a set of rules specially selected to govern public order, and offers a simple factual test – what has the sovereign commanded?- as the sole criterion for identifying those special rules. In time, however, many objections were raised to Austin’s model, among which were two that seemed fundamental. First, Austin’s key assumption that in each community a determinate group or institution can be found, which is in ultimate control of all other groups, seemed not to hold in a complex society.  Political control in a modern nation is pluralistic and shifting, a matter of more or less, of compromise or cooperation and alliance, so that it is often impossible to say that any group or any person has that dramatic control necessary to qualify as Austinian sovereign. One may argue, in Kenya for example, that the ‘people’ are sovereign. But this means almost nothing, and in itself provides no test for determining what the ‘people’ have commanded, or distinguishing their legal from their social or moral commands.

Second, critics point out the fact that Austin’s account for, even to recognise, certain striking facts about the attitudes we take toward ‘the law’. We make an important distinction between law and even the general orders of a gangster. We feel that the law’s strictures – and its sanctions- are different in that they are obligatory in a way that the outlaw’s commands are not. Austin’s analysis has no place for any such distinction, because it defines an obligation as subjection to the threat of force, and so founds the authority of the law entirely on the sovereign’s ability and will to harm those who disobey.

H.L.A. Hart’s version of positivism is more complex than Austin’s in two ways. First, he recognises, as Austin did not, that rules are of different logical kinds. (Hart distinguishes two kinds, which he calls ‘primary’ and ‘secondary’ rules). Second, he rejects Austin’s theory that a rule is a kind of command, and substitutes a more elaborate general analysis of what rules are.

Hart in the book ‘The Concept of Law’- develops an approach based on ‘system of rules’- makes a distinction between primary and secondary rules. Primary rules are those that grant rights or impose obligations upon members of the community. The rules of criminal law that forbid us to murder, rob or drive too fast are good examples of primary rules. Secondary rules are those that stipulate how, and by whom, such primary rules may be formed, recognised, modified or extinguished. The rules that stipulate how parliament is composed and how it enacts legislation, are examples of secondary rules. Rules about forming contracts and executing wills are also secondary rules because they stipulate how very particular rules governing particular legal obligations (i.e. the terms of a contract or the provisions of a will) come into existence and are changed.

Hart’s general analysis of rules is of great importance. Austin has said that every rule is a general command, and that a person is obligated under a rule if he is liable to be hurt should he disobey it. Hart points out that this obliterates the distinction between obliged to do something and being obligated to do it. If one is bound by a rule he is obligated, not merely obliged, to what it provides, and therefore being bound by a rule must be different from being subject to an injury if one disobeys an order. A rule differs from an order, among other ways, by being normative, by setting a standard of behaviour that has a call on its subject beyond the threat that may enforce it. A rule can never be binding just because some person with physical power wants it to be so. He must have authority to issue the rule or it is no rule, and such authority can only come from another rule which is already binding on those to whom he speaks. That is the difference between a valid law and orders of a gunman.

So Hart offers a general theory of rules that does not make their authority depend upon the physical power of their authors. In Hart’s approach, there are two sources of a rule’s authority: because it is accepted or because it is valid:

Rules may be binding upon a group of people because that group through its practices accepts the rule as a standard for its conduct. It is not enough that the group simply conforms to a standard of behaviour. A practice constitutes the acceptance of a rule only when those who follow the practice regard the rule as binding, and recognise the rule as a reason or justification for their own behaviour and as a reason for criticizing the behaviour of others who do not obey it.

a)      A rule may also become binding in a different way, namely by being enacted in conformity with some secondary rule that stipulates that rule so enacted shall be binding. A community often develops a fundamental secondary rule ‘rule of recognition’ that stipulates how legal rules are to be identified e.g. Constitution. The demonstration that a particular rule is valid may therefore require tracing a complicated chain of validity back from that particular rule ultimately to the fundamental rule.  Of course the rule of recognition cannot itself be valid, because by hypothesis it is ultimate, and so cannot meet tests stipulated by a more fundamental rule.

In this way Hart rescues the fundamentals of positivism from Austin’s mistakes. Hart agrees with Austin that valid rules of law may be created through acts of officials and public officials. But Austin thought that the authority of these institutions law only in their monopoly of power. Hart finds their authority in the background of constitutional standards against which they act, constitutional standards which have been accepted, in the form of a fundamental rule of recognition, by the community which they govern.

The second major approach is theory of ‘law as rule and principle’ developed by Ronald Dworkin in the books ‘Taking Rights Seriously’ and ‘Law’s Empire’.  Dworkin's theory is 'interpretive': the law is whatever follows from a constructive interpretation of the institutional history of the legal system. Dworkin argues that legal rights and obligations contain more than just rules as argued by positivists. He points out that apart from rules, law also contains standards that do not function as rules, but operate differently as principles, policies and other sort of standards. His argument is that positivism, is a model of and for a system of rules, and its central notion of a single fundamental test for law misses the important roles of standards that are not rules. Dworkin argues that standards differ from rules in that whilst rules are applicable in an all-or-nothing manner, standards are guidelines, stating a reason that argues in one direction, but does not necessitate a particular decision.

Dworkin argues that the categories of standards that exclude rules that are law include the following:

‘Policy’ – that kind of standard that sets out a goal to be reached, generally in an improvement in some economic, political or social feature of the community.

‘Principle’ –a standard that is to be observed, not because it will advance or secure an economic, political or social situation seemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.

Thus the standard that motor vehicle accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong is a principle.

‘Values” – the difference between principles and values is that principles belong to the deontological domain, whereas values belong to the axiological domain. Deontological concepts have their basis in a command or ‘ought’. Axiological concepts, on the other hand, derive from criteria by which something may be judged ‘good”. What is axiologically the best is deontologicaly what ought to be.   

In distinguishing standards (principles) from general rules, Dworkin uses the illustration of the Case of Riggs v Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). In this case, a man murders his father in order to benefit from the father’s will which, as he knows, provides that all the father’s property will come to him upon the father’s death. Irrespective of the liability of the man for murder, the question will fall to be considered whether he will ultimately acquire that property. Normally, the law attempts to give effect to the wishes of the maker of a will, but here the outcome may well be affected by the principle that ‘no man should profit by his own wrong’ and the result may well be that, through the operation of this principle, and despite the existence of legal rules which would otherwise have operated in the son’s favour, the murderer does not receive the inheritance.

In the Kenyan case of The Supreme Court Advisory Opinion on the Principle of Gender Representation in the National Assembly, Advisory Opinion Number 2 of 2012 through a majority decision, the Supreme court endorsed the Dworkinian distinction between principles and rules. The Supreme Court was asked to give an advisory opinion on whether the gender equity principle that not more than two thirds of one gender should occupy a state office provided in the Constitution i.e. under the general principles of the electoral system (Article 81 of the Constitution) and the equality clause in the Bill of Rights (Article 27 of the Constitution) was immediately realizable or subject to progressive realisation. The Majority (Chief Justice Mutunga dissenting) underscored the difference between constitutional principles (standards) and norms (rules) thus:  

 “[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”

 

Natural Law Theory

According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. The core of natural law theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. Thomas Aquinas identifies the rational nature of human beings as that which defines moral law: “the rule and measure of human acts is the reason, which is the first principle of human acts”. Since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus Aquinas derives the moral law from the nature of human beings (thus, natural law).

Natural law theory also speaks to the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. It is argued that there are at least some laws that depend for their authority not on some pre-existing human enactment, but on the logical relationship in which they stand to moral standards. Thus some norms are authoritative by virtue of their moral content, even when there is no enactment that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis. All forms of natural law theory subscribe to the overlap thesis, which asserts that there is some kind of relation between law and morality. According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions.

The other main claim of natural law theory, put simply, is that what naturally is, ought to be. In ‘Natural Law and Natural Rights’, John Finnis asserts that when we attempt to explain what law is, we make assumptions, about what is ‘good’: “It is often supposed that an evaluation of law as a type of social institution, if it is to be undertaken at all, must be preceded by a value-free description and analysis of the institution as it exists in fact. But the development of modern jurisprudence suggests, and reflection on the methodology of any social science confirms, that a theorist cannot give a theoretical description and analysis of social facts, unless he also participates in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.” This is a trenchant foundation for an analysis of natural law. It proposes that when we are determining what is good, we are using our intelligence differently form when we are determining what exists. In other words, if we are to understand the nature and impact of the natural law project, we must recognise that it yields a different logic.

Classical natural law theory

The overlap thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Aquinas distinguished four kinds of law: the eternal law (divine reason known only to God), natural law (the participation of the eternal law in rational creatures, discoverable by reason), divine law (revealed in the scriptures), and human law (supported by reason, and enacted for the common good).

 

Natural law is comprised of those precepts of the eternal law that govern the behaviour of beings possessing reason and free will. The first precept of natural law, according to Aquinas is the imperative to do good and avoid evil. What is good and evil is discerned from the nature of human beings. Good and evil are thus both objective and universal.

Aquinas argues that human law (that is, that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law. Aquinas notes: “Every human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.’ Augustine holds in this regard that, an unjust law is really no law at all.

The idea that a norm that does not conform to natural law cannot be legally valid is the defining thesis of conceptual naturalism. William Blackstone has articulated two claims that constitute the theoretical core of natural law theory as follows: 1) there can be no legally valid standards that conflict with natural law; and (2) all valid laws derive what force and authority they have from natural law.

It should be noted that classical law theory is consistent with allowing a substantial role and discretion to human beings in the development of law.  However, the argument by classical law theorists is that the discretion is limited by moral norms: legal norms that are promulgated by human beings are valid only if they are consistent with morality.

Critics have raised a number of objections to this view:

First, it has often been pointed out that, contrary to Augustine’s assertions, unjust laws are all-too-frequently enforced against persons.

Second, there is the worry that conceptual naturalism undermines the possibility of moral criticism of the law; in as much as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.

REFLECTIONS: Is one justified in disobeying an unjust law?

The fall and rise of natural law

The waning influence of natural law theory, especially in the 19^th century, resulted from the emergence of two formidable foes. First, the ideas associated with legal positivism constitute resilient opposition to natural law thinking. Secondly, the idea that in moral reasoning there can be no rational solutions (so-called non-cognitivism in ethics) spawned a profound scepticism about natural law: If we cannot objectively know what is right or wrong, natural law principles are little more than subjective opinion: they could, therefore, be neither right nor wrong.

David Hume in his ‘Treatise of Human Nature’ first observed that moralists seek to derive an ‘ought’ from an ‘is’: we cannot conclude that the law should assume a particular form merely because a certain state of affairs exists in nature. Hume sought to show that facts about the world or human nature cannot be used to determine what ‘ought’ to be done or not done.

The 20^th century witnessed a renaissance in natural law theory. This is evident in the post-war recognition of human rights and their expression in various international human rights documents. Natural law was now conceived not as a ‘higher law’ in the constitutional sense of invalidating ordinary law but as a benchmark against which to measure positive law.  The Nuremberg war trials of senior Nazi officials regenerated natural law ideals. They applied the principle that certain acts constitute ‘crimes against humanity’ even if they do not violate provisions of positive law. The judges in these trials did not appeal explicitly to natural law theory, but their judgments represent an important recognition of the principle that the law is not necessary the sole determinant of what is right. Another significant development was the enactment of constitutional safeguards for human or civil rights in various jurisdictions. For example, Lord Cross in the case of Oppenheimer v Cattermole [1976] A.C. 249 addressed the issue of a German Jew who lost his German citizenship, and observed thus: “A law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as law at all.”

Legal theory has also advanced the cause of natural aw theory. Lon Fuller’s ‘inner morality of law’; and the writings of contemporary natural lawyers such as John Finnis have played a major role in this revival.

The Procedural Naturalism of Lon L. Fuller

Lon Fuller rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. On Fuller’s view, human activity is necessarily goal-oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end.

Fuller’s functionalist conception of law implies that nothing can count as law unless it is capable of performing law’s essential function of guiding behavior. And to be capable of performing this function, a system of rules must satisfy the following principles:

• (P1) the rules must be expressed in general terms;
• (P2) the rules must be publicly promulgated;
• (P3) the rules must be prospective in effect;
• (P4) the rules must be expressed in understandable terms;
• (P5) the rules must be consistent with one another;
• (P6) the rules must not require conduct beyond the powers of the affected parties;
• (P7) the rules must not be changed so frequently that the subject cannot rely on them; and
• (P8) the rules must be administered in a manner consistent with their wording.

On Fuller’s view, no system of rules that fails minimally to satisfy these principles of legality can achieve law’s essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are “internal” to law in the sense that they are built into the existence conditions for law.

These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: (1) law conduces to a state of social order and (2) does so by respecting human autonomy because rules guide behavior. Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller’s view, that they constitute a morality. Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis.

This view by Lon Fuller was endorsed by Justice Rajnauth- Lee at the Carribean Court of Justice, in Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana [2018] CCJ 30 (AJ) where the Caribbean Court of Justice ruled that a law in Guyana, which makes it a criminal offence for a man or a woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose”, is unconstitutional.  The view by Lon Fuller was endorsed thus:

“Courts have taken the view that vague statutes fail to give sufficient notice to the public, lead to arbitrary and discriminatory enforcement and represent an unwarranted delegation to law enforcement. Criminal statutes which are vaguely drawn operate as a threat to the balance of power between the state and the individual. There is an added dimension of statutory certainty which is connected to the notion that governments must operate by rules. This serves to protect the autonomy of the citizens by setting forth, in a manner that is done publicly and in advance, the parameters of any proscribed activity. As noted by legal philosopher Lon L. Fuller articulated in his seminal work “The Morality of Law” (see Lon L. Fuller, (Lon Luvois), 1902-1978. “The Morality of Law.” New Haven: Yale University Press, 1964): “[T]here can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible .... As the sociologist Simmel has observed, there is a kind of reciprocity between government and the citizen with respect to the observance of rules. Government says to the citizen in effect, 'These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.”

Nevertheless, Fuller’s conceptual naturalism is fundamentally different from that of classical naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered.

Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists. The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid. In contrast, Fuller views morality as providing a constraint on the existence of a legal system: “A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all”.

Nevertheless, Fuller’s principles operate internally, not as moral ideals, but merely as principles of efficacy. The existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals.

Fuller concludes that where a system does not conform to any one of these principles, or fails substantially to respect several, it could not be said that ‘law’ existed in that community. But, though he insists that these eight principles are moral, they appear to be essentially procedural guides to effective lawmaking. Some, however, would argue that they implicitly establish fairness between the government and the governed and therefore exclude evil/wicked regimes.

REFLECTIONS:

1.      The rulers of Nazi Germany and apartheid South Africa, the so-called wicked regimes, complied with procedural niceties when enacting and implementing obnoxious laws, does this mean that Fuller’s procedural morality to does  not help subjects from being subjected to unjust laws?

 

2.      In Geoffrey Andare v the Hon. Attorney General and the Director of Public Prosecutions, Petition No. 149 of 2015 Justice Mumbi Ngugi declared section 29 of the Kenya Information and Communication Act, Cap 411A unconstitutional. The provision criminalised ‘misuse of a licensed telecommunications gadget’. She noted that the provision was so overbroad, vague and uncertain such that individuals do not know the parameters within which their communications fall. Is this a vindication of Lon Fuller’s views?

 

The substantive neo-naturalism of John Finnis

According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law. On Finnis’s view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion. Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law.

On Finnis’s view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of basic goods. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good: life, health, knowledge, play, friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good.

On Finnis’s view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows: “[T]he term ‘law’ … refer[s] primarily to rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a ‘complete’ community, and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community’s co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community.”

Again, it bears emphasizing that Finnis denies that there is any necessary moral test for legal validity. Nevertheless, Finnis believes that to the extent that a norm fails to satisfy one or other of the elements of the definition, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis’s view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that “a ruler’s use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends’ or party’s or faction’s advantage, or out of malice against some person or group”. For the ultimate basis of a ruler’s moral authority, on this view, “is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community’s co- ordination problems”.

REFLECTIONS:

1.The Case of Koigi Wamwere v the Attorney General, High Court Petition Number 737 of 2009 and later Court of Appeal, Appeal Number 86 of 2013 one of the central questions before the courts was whether the appellant’s two stints in detention had constitutional sanction at the material time. The retired Constitution at Section 83 provided for the constitutionality of detention without trial in so far as it legitimized Part III of the Preservation of Public Security Act as follows;

“83(1) Nothing contained in or done under the authority of Parliament shall be held to be inconsistent with or in contravention of Section 72, 76, 77, 80, 81 or 82 when Kenya is at war, and nothing contained in or done under the authority of any provision of part III of the preservation of Public Security Act shall be held to be inconsistent with or in contravention of those sections of the Constitution when and in so far as the provision is in operation by virtue of an order made under Section 85.

(2) Where a person is detained by virtue of a law referred to in sub-section (1) the following provisions shall apply-

(a) he shall, as soon as reasonably practicable and in any case not more than five days after the commencement of his detention, be furnished with a statement in writing in a language that he understands specifying in detail the grounds upon which he is detained;

(b) not more than fourteen days after the commencement of his detention, a notification shall be published in the Kenya Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorized.”

The High Court held thus: “24. Given these provisions of the Constitution and the provisions of the Preservation of Security Act, the detention of the petitioner in both instances was permitted under the Constitution and legislation and was therefore, in and of itself, not in violation of his constitutional rights. Section 4(2) (a) of the repealed Preservation of Public Security Act, Cap 57 of the Laws of Kenya, read together with the repealed Public Security (Detained and Restricted Persons) Regulations provided that if the Minister was satisfied that it was necessary for the preservation of public security to exercise control beyond that afforded by a restriction order over any person, he could order that that person be detained.” This was finding was upheld by the Court of Appeal.

Reading the decision of the High Court and that of the Court of Appeal, what school of thought do the judges ascribe to? What approach would a natural law approach commend?

 

2. Chief Justice Mutunga in Re the Speaker of the Senate & Another v Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013, develops a theory of the interpretation of the Constitution that envisages an ongoing constitution making process through judicial interpretation. He opines thus:   

“[156] The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower courts and other institutions can rely on, when they are called upon to interpret the Constitution.  Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents.  The Court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship.  It is to the Courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes.  In other words, constitution making does not end with its promulgation; it continues with its interpretation.  It is the duty of the Court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create.  The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people.  It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras.

“[157] Section 3 of the Supreme Court Act provides:

The object of this Act is to make further provisions with respect to the operation of the Supreme Court as a court of final authority to, among other things-

a. …

b. …

c.      develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth;

d.      enable important constitutional and legal matters, including matters relating to the transition from the former to the present constitutional dispensation, to be determined having due regard to the circumstances, history and cultures of the people of Kenya.

“In my opinion, this provision grants the Supreme Court a near-limitless, and substantially elastic interpretative power. It allows the Court to explore interpretative space in the country’s history and memory that, in my view, goes even beyond the minds of the framers whose product, and appreciation of the history and circumstance of the people of Kenya, may have been constrained by the politics of the moment.”

Could Mutunga’s approach to constitutional interpretation herein be said to amount to appeal to natural law given that he envisages that judges can look beyond the text i.e. beyond posited law?

3.      National Bank of Kenya Limited v Anaj Warehousing Limited [2015] eKLR, PETITION NO. 36 OF 2014 in which the Supreme Court overturned the decisions of the Court of Appeal in the cases of Geoffrey Oraro Obura v. Koome (2001) KLR 109, and National Bank of Kenya Ltd. v. Wilson Ndolo Ayah Civil Appeal No.119 of 2002, (2009 eKLR), in which the Courts held that it is for the public good, that transactions effected by an unqualified advocate should not be allowed as provided in Section 34 of the Advocates Act (Cap 16, Laws of Kenya). Would it be correct to argue that the Supreme Court went beyond what the wording of the statute demands? What is the legal philosophy of the judges as can be discerned from the case and what was the legal of the court of appeal? 

 

4.      What is the legal philosophy of Justice Joel Ngugi as emerges from his decision in Republic v Resident Magistrate's Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna & 9 others Judicial Review Application 1 of 2016: 

“35. A claim in law and a course of action belongs to the client and not the advocate. It is hard to justify, in this era where the Constitution (at Article 159) commands the courts to privilege the ideals of substantive justice as opposed to legal formalism, statutory interpretation which bereaves a party of a valid substantive claim because his or her lawyer failed to adhere to a procedural requirement unrelated to the claim in question.”

 

5.      Read and contrast the judicial philosophy of the differently constituted benches of the Court of Appeal in David Sironga Ole Tukai v. Francis Arap Muge &  2 Others (2014) eKLR, Willy Kimutai Kitilit v Michael Kibet [2018] eKLR, and Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR, on the question of  the effect of the failure to obtain Land Control Board consent  to a transaction related to agricultural land within the time stipulated in Section 6(1) Land Control Act, Cap 302 Laws of Kenya and whether the transaction becomes void for running afoul the requirement of the necessity to get a consent within six months of the transaction.  

 

6.      “There are constitutional principles that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framers of the constitution.” Southwest Case, 1BVerfGE14 (1951), S4c. D, par. 2, This declaration by the Federal Constitutional Court of Germany quoting from the statement of the Bavarian Supreme Court has been the force behind the basic structure doctrine  in comparative constitutional law, is it right to argue that the statement is inspired by the natural law theory?

 

LEGAL POSITIVISM

Positivists deny the relationship proposed between law and morals as proposed by natural law theorists. This is what is called the separation thesis. The claim of natural lawyers that law consists of series propositions derived from nature through a process of reasoning is strongly contested by legal positivists.

The term ‘positivism’ derives from the Latin positum, which refers to the law as it is laid down or posited. Broadly, the core of legal positivism is the view that the validity of any law can be traced to an objectively verifiable source. Put simply, legal positivism, rejects the view –held by natural lawyers- that law exists independently from human enactment.

The early (classical) legal positivism of Bentham and Austin found the origin of law in the command of a sovereign. HLA Hart looks to a rule of recognition that distinguishes law from other social rules. Hans Kelsen identifies a basic norm that validates the constitution.

Legal positivists often claim that there is no necessary connection between law and morals, and that the analysis of legal concepts is worth pursuing distinct from sociological and historical inquiries and critical evaluation. The highest common factor among legal positivists is that the law as laid down should be kept separate from the law as it ought morally to be. In other words, that a clear distinction must be drawn between “ought” (that which is morally desirable) and “is” (that which actually exists).

Norberto Bobbio has singled out three main conceptions of legal positivism: methodological positivism, theoretical positivism, ideological positivism.

“Methodological” positivism is a peculiar way to conceive of the function of legal knowledge and, at the same time, of the object of legal knowledge itself. The legal positivist is characterised by commitment to a value-free, scientific approach in studying actual law. From this important methodological tenet it thus follows that there is a sharp distinction between “actual” law and “ideal” or “natural” law: between law as a fact and law as a value; a distinction which aims to point to the former as the proper (indeed only) object of legal knowledge.

“Theoretical” positivism is in fact a cluster of theories about the nature of law, which are all somehow related to a “statist” conception of law. These theories include: an imperative theory of law, in which the key concepts are the ones of sovereignty (in relation to the foundation of the legal system) and command (in relation to the definition of norm); a theory of legal sources, in which statute law is the supreme source; a theory of the legal system, which is supposed to be a coherent and comprehensive whole; and a theory of legal interpretation, conceived of as a merely mechanical and logical enterprise.

“Ideological” positivism is a theory about the obligation to obey the law, according to which existing laws (or established statutes, in so far as this theory incorporates the “theoretical” one) deserve moral compliance from the citizens; people, in other words, have a moral duty to obey positive law. This doctrine, which would be more correct to define as “moral positivism” or “ethical legalism”, meets in two different versions. Firstly, a moderate one, according to which the very existence of legal regulations (apart from the actual content of single norms) satisfies important demands of order, social peace, certainty. Secondly, a more extreme version, which holds that the law is not merely regarded as a means to fulfil desirable values, but as a value in itself: positive law is, as such, just law.

It’s possible to say that these three theories, which can at times appear variously combined, are expressions of different positivistic conceptions, because they share the same positivistic concept of law. 

Classical positivism: Law as commands (Bentham and Austin)

Jeremy Bentham theory of law was utilitarian. Appeals to natural law were to him nothing more than “private opinion in disguise” or “mere opinion of men self-constituted into legislatures”. He strongly criticised reliance on common law due to its vagueness, indeterminacy and uncertainty. He argued that it could not provide a reliable, public standard which can reasonably be expected to guide behaviour. He argued that the common law should be codified. Bentham insisted on the separation of what he called ‘expositorial’ and ‘censorial’ jurisprudence. The former describes what is, the latter what ought to be.

John Austin in his major work ‘The Province of Law Determined’ articulates a conception of law based on the idea of commands or imperatives. Both Austin and Bentham stress the subjection of persons by the sovereign to his power, (although Austin’s approach seems to be only suited for criminal law due to its emphasis on behaviour). Austin’s identification of commands as the hallmark of law leads him to a more restrictive definition of law than is adopted by Bentham who seeks to formulate a single, complete law which sufficiently expresses the legislative will.

Both share a concern to confine the scope of jurisprudential inquiry to accounting for and explaining the principal features of the law. In the case of Austin, however, his map of ‘law properly so called’ is considerably narrower than Bentham’s, and embraces two categories: the laws of God and human laws. Human laws (i.e. laws set down by men for men) are further divided into positive law or laws ‘strictly so called’ (i.e. laws laid down by men as political superiors or in pursuance of legal rights) and laws laid down by men not as political superiors or not in pursuance of legal rights. Laws ‘improperly so called’ are divided into laws by analogy (e.g. laws of fashion, constitutional and international law) and by metaphor (e.g. the law of gravity). Laws by analogy, together with laws set by men not as political superiors or in pursuance of legal right, are merely ‘positive morality’. It is only positive law that is the proper subject of jurisprudence.

The central feature of Austin’s map of the province of jurisprudence is the notion of law as a command of the sovereign. Anything that is not a command is not law. Only general commands count as law. And only commands emanating from the sovereign are ‘positive laws’. Austin’s insistence on law as commands requires him to exclude customary, constitutional and public international law from the field of jurisprudence. This is because no specific sovereign can be identified as the author of their rules. Thus, in the case of public international law, sovereign states are notoriously at liberty to disregard its requirements.

For Bentham, however, commands are merely one of four methods by which the sovereign enacts law. He distinguishes between laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct (permissive laws). He argues that all laws are both penal and civil; even in the case of title to property there is a penal element. Bentham seeks to show that laws which impose no obligations or sanctions (what he calls ‘civil laws’) are not ‘complete laws’, but merely parts of laws. And, since his principal objective was the creation of a code of law, he argued that the penal and civil branches should be formulated separately.

The relationship between commands and sanctions is no less important for Austin. Indeed, his very concept of a command includes the probability that a sanction will follow failure to obey the command. But what is a sanction? Austin defines it as some harm, pain, or evil that is conditional upon the failure of a person to comply with the wishes of the sovereign. There must be a realistic probability that it will be inflicted upon anyone who infringes a command. There need only be the threat of the possibility of a minimal harm, pain, or evil, but unless a sanction is likely to follow, the mere expression of a wish is not a command. Obligations are therefore defined in terms of sanctions: this is a central tenet of Austin’s imperative theory. The likelihood of a sanction is always uncertain, but Austin is driven to the rather unsatisfactory position that a sanction consists of ‘the smallest chance of incurring the smallest evil’.

The idea of a sovereign issuing commands pervades the theories of both Bentham and Austin. It is important to note that both regard the sovereign’s power as constituted by the habit of the people generally obeying his laws. But while Austin insists on the illimitability and indivisibility of the sovereign, Bentham, alive to the institution of federalism, acknowledges that the supreme legislative power may be both limited and divided by what he calls an express convention.

For Austin, to the four features of a command (wish, sanction, expression of a wish, and generality) is to be added a fifth, namely an identifiable political superior – or sovereign – whose commands are obeyed by political inferiors and who owes obedience to no one. This insistence on an omnipotent lawgiver distorts those legal systems which impose constitutional restrictions on the legislative competence of the legislature or which divide such power between a national legislature and lawmaking bodies of constituent states or counties. (See Walter Khobe ‘Separation of Powers in Judicial Enforcement of Governmental Ethics in Kenya and South Africa’ (2018) 3 Journal of Law and Ethics pp. 37-67 for analysis of limited powers of state organs in the Kenyan context)    

 

 Bentham, on the other hand, acknowledges that sovereignty may be limited or divided, and accepts (albeit reluctantly) the possibility of judicial review of legislative action. Austin’s contention that ‘laws properly so called’ be confined to the commands of a sovereign leads him to base his idea of sovereignty on the habit of obedience adopted by members of society. The sovereign must, moreover, be determinate (i.e. the composition of

the sovereign body must be unambiguous), for ‘no indeterminate sovereign can command expressly or tacitly, or can receive obedience or submission’. And this results in Austin famously refusing to accept as ‘law’ public international law, customary law, and a good deal of constitutional law.

Moreover, by insisting that the sanction is an indispensable ingredient in the definition of law, Austin is driven to defining duty in terms of sanction: if the sovereign expresses a wish and has the power to inflict an evil (or sanction) then a person is under a duty to act in accordance with that wish. The distinction between a ‘wish’ and the ‘expression of a wish’ resembles the distinction between a bill and a statute.

Austin’s association between duty and sanction has attracted considerable criticism, though it may be that he was merely seeking to show – in a formal sense – that, where there is a duty, its breach normally gives rise to a sanction. In other words, he is not necessarily seeking to provide an explanation for why law is obeyed or whether it ought to be obeyed, but rather when a legal duty exists. Nevertheless, he unquestionably accords unwarranted significance to the concept of duty. The law frequently imposes no direct duty, such as when it facilitates marriage, contracts, and wills.

The less dogmatic approach of Bentham allows that a sovereign’s commands constitute law even in the absence of sanctions in the Austinian sense. Law, according to Bentham, includes both punishments (‘coercive motives’) and rewards (‘alluring motives’), but they do not define what is and what is not law.

Bentham and Austin laid the foundations for modern legal positivism. But their ideas have been considerably refined, developed, and even rejected, by contemporary legal positivists.

 

REFLECTIONS:

In Peter Odiwuor Ngoge t/a O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni t/a Namada & Co Advocates & 725 others, Petition No. 13 of 2013 the Supreme Court of Kenya adverted to the notion of sovereignty and noted thus: “Learned counsel, however, as we would remark, while attributing his contest to the framework of the African Charter on Human and People’s Rights, and while averring that the Supreme Court’s past Rulings are under review before a supra-national human rights entity, did not address the structural link between the domestic and the regional arbitral or adjudicatory agencies, such as could bear a hierarchical bond, with its essential operational dynamics, and with the decision-making process of the Kenyan Courts, founded upon the people’s sovereignty (Article 1(3) (c) of the Constitution of Kenya, 2010).” Taking into account state accession to regional organisation framework and the  recognition of international human rights tribunals and international criminal tribunals can the modern state be said to be sovereign? To help in your reflections read: Walter Khobe ‘The Supreme Court and the Status of Judgments by Supra-National Adjudicatory Bodies in the Domestic Legal Order’ (2018) The Platform pp. 27-30.

 

 

Law as social rules: H. L. A. Hart

H. L. A. Hart is often credited with charting the precincts of modern legal theory by applying the techniques of analytical, and especially linguistic philosophy to the study of law. His work illuminates the meaning of legal concepts, the manner in which we deploy them, and the way we think about law and the legal system. What, for example, does it mean to have a ‘right’? What is a corporation or an obligation? Hart claims that we cannot properly understand law unless we understand the conceptual context in which it emerges and develops. He argues, for instance, that language has an ‘open texture’: words (and hence rules) have a number of clear meanings, but there are always several ‘penumbral’ cases where it is uncertain whether the word applies or not. His book, The Concept of Law, published in 1961, is a classic of legal theory and contains his thoughts on legal theory.

Hart’s positivism is a far cry from the largely coercive picture of law painted by Bentham and Austin. Hart conceives of law as a social phenomenon that can be understood only by describing the actual social practices of a community.

 

Hart disengages his legal positivism from both the utilitarianism and the command theory of law championed by Austin and Bentham. In the case of the latter, his rejection is based on the view that law is more than the decree of a gunman: a command backed by a sanction.

The nucleus of Hart’s theory is the existence of fundamental rules accepted by officials as stipulating procedures by which the law is enacted. The most important of these he calls the rule of recognition which is the fundamental constitutional rule of a legal system, acknowledged by those officials who administer the law as specifying the conditions or criteria of validity which certify whether or not a rule is indeed a rule.

Law, in Hart’s analysis, is a system of rules. His argument is as follows. All societies have social rules. These include rules relating to morals, games, etc., as well as obligation rules that impose duties or obligations. The latter may be divided into moral rules and legal rules (or law). As a result of our human limitations, there is a necessity for obligation rules in all societies. Legal rules are divisible into primary rules and secondary rules. The former proscribe the use of violence, theft, and deception to which human beings are tempted but which they must normally repress if they are to coexist in close proximity. The rules of primitive societies are normally restricted to these primary rules imposing obligations. But as a society becomes more complex, there is obviously a need to change the primary rules, to adjudicate on breaches of them, and to identify which rules are actually obligation rules. These three requirements are satisfied in each case in modern societies by the introduction of three sorts of secondary rules: rules of change, adjudication, and recognition. Unlike primary rules, the first two of these secondary rules do not generally impose duties, but usually confer power. The rule of recognition, however, does seem to impose duties (largely on judges).

The existence of a legal system requires that two conditions must be satisfied. First, valid obligation rules must be generally obeyed by members of society, and, secondly, officials must accept the rules of change and adjudication; they must also accept the rule of recognition ‘from the internal point of view’.

As already pointed out, Hart rejects Austin’s conception of rules as commands, and the notion that rules are phenomena that consist merely in externally observable activities or habit. Instead he asks us to consider the social dimension of rules, namely the manner in which members of a society perceive the rule in question, their attitude towards it. This ‘internal’ aspect distinguishes between a rule and a mere habit.

In other words, to grasp the nature of rules we must examine them from the point of view of those who experience them, or who pass judgement on them. He also employs the concept of a ‘rule’ to distinguish between ‘being obliged’ and ‘having an obligation’. When a gunman says, ‘Your money or your life?’ you are obliged to obey, but, says Hart, you have no obligation to do so – because no rule imposes an obligation on you.

Having described the nature and purpose of primary rules, Hart attempts to show that every legal system incorporates secondary rules of three kinds. The first he calls rules of change. These facilitate legislative or judicial changes to both the primary rules and certain secondary rules (e.g. the rule of adjudication). This process of change is regulated by secondary rules that confer power on individuals or groups (e.g. County Assemblies or Parliament) to enact legislation in accordance with certain procedures. Rules of change also confer power on you and me to alter our legal status (e.g. by making contracts, wills, etc.).

Secondly, there are rules of adjudication that confer authority on individuals, such as judges, to pass judgment mainly in cases of breaches of primary rules. This power is normally associated with a further power to punish the wrongdoer or compel the wrongdoer to pay damages.

Thirdly, there is the rule of recognition which determines the criteria by which the validity of all the rules of a legal system is decided. As pointed out above, unlike the other two types of secondary rules, it appears, in part, to be duty-imposing: it requires those who exercise public power (particularly judges) to follow certain rules. Hart maintains that rules are valid members of the legal system only if they satisfy the criteria laid down by the rule of recognition. The validity of the rule of recognition cannot be questioned. It is neither valid nor invalid, but is simply accepted as the correct standard.

A legal system exists, according to Hart, only if valid primary rules are obeyed, and officials accept the rules of change and adjudication. In Hart’s words:

“The assertion that a legal system exists is . . . a Janus-faced statement looking both to obedience by ordinary citizens and to the acceptance by officials of secondary rules as critical common standards of official behaviour.”

Ordinary members of society, do not need to accept the primary rules or the rule of recognition; it is necessary only that the officials do so from ‘an internal point of view’. What does this mean? Hart’s answer is as follows:

“What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and

demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong.’”

This ‘internal’ dimension of rules thus distinguishes social rules from mere group habits. By accepting secondary rules, officials need not approve of them. Judges in an iniquitous legal system may detest the rules they are required to apply, but by accepting them they satisfy Hart’s conditions for a legal system to exist. Hart concedes that where a legal system fails to receive general approval, it would be both morally and politically objectionable. But these moral and political criteria are not identifying characteristics of the notion of ‘legal system’. The validity of a legal system is therefore independent from its efficacy. A completely ineffective rule may be a valid one – as long as it emanates from the rule of recognition. But to be a valid rule, the legal system of which the rule is a component must, as a whole, be effective.

REFLECTIONS: Having regard to articles 2 (supremacy and validity of the constitution); articles 94 (legislative authority of parliament); article 185 (legislative authority of county assemblies); article 2(4) (customary law recognition); article 24(4) (Muslim laws applicability to muslims in personal matters); articles 2(5) & (6) (international law) of the Constitution and Sections 3(1) and (2) of the Judicature Act, what can be said to be the rule of recognition in the Hartian sense in Kenya?

Law as norms: Hans Kelsen

Hans Kelsen in his ‘pure theory of law’, expounds a subtle and profound account of the way in which we should understand law. We should do so, he insists, by conceiving it to be a system of ‘oughts’ or norms. Kelsen does concede that the law consists also of legal acts as determined by these norms. But the essential character of law derives from norms – which include judicial decisions and legal transactions such as contracts and wills. Even the most general norms describe human conduct.

Influenced by the philosopher, Immanuel Kant, Kelsen accepts that we can understand objective reality only by the application of certain formal categories like time and space that do not ‘exist’ in nature: we use them in order to make sense of the world. Similarly, to understand ‘the law’ we need formal categories, such as the basic norm – or Grundnorm – which, as its name suggests, lies at the base of any legal system (see below). Legal theory, argues Kelsen, is no less a science than physics or chemistry. Thus we need to disinfect the law of the impurities of morality, psychology, sociology, and political theory. He thus propounds a sort of ethical cleansing under which our analysis is directed to the norms of positive law: those ‘oughts’ that declare that if certain conduct (X) is performed, then a sanction (Y) should be applied by an official to the offender. His ‘pure’ theory thus excludes that which we cannot objectively know, including law’s moral, social, or political functions. Law has but one purpose: the monopolization of force.

Kelsen’s concept of a norm entails that something ought to be, or that something ought to happen – in particular, that a person ought to behave in a specific way. Hence both the statement ‘the door ought to be closed,’ and a red traffic light constitute norms. To be valid, however, a norm must be authorized by another norm which, in turn, must be authorized by a higher legal norm in the system. Kelsen is intensely relativistic: he repudiates the idea that there are values ‘out there’. For him all norms are relative to the individual or group under consideration. The promotion of social order is achieved by governments enacting norms that determine whether our conduct is lawful or unlawful. These norms, argues Kelsen, provide sanctions for failure to comply with them. Legal norms therefore differ from other norms in that they prescribe a sanction. A legal system is founded on state coercion; behind its norms is the threat of force. This distinguishes the tax collector from the robber. Both demand your money. Both, in other words,  require that you ought to pay up. Both exhibit a subjective act of will, but only the tax collector’s is objectively valid. Why? Because, says Kelsen, the subjective meaning of the robber’s coercive order is not interpreted as its objective meaning. Why not? Because no basic norm is presupposed according to which one ought to comply with this order. And why not? Because the robber’s coercive order lacks the ‘lasting effectiveness without which no basic norm is presupposed’. This demonstrates the essential relationship in Kelsen’s theory between validity and effectiveness.

His model of a legal system is therefore a succession of interconnected norms advancing from the most general ‘oughts’ (e.g. sanctions ought to be effected in accordance with the constitution) to the most particular or ‘concrete’ (e.g. Otieno is contractually bound to mow Anyango’s grass). Each norm in this hierarchical system draws its validity from another higher norm. The validity of all norms is ultimately based on the basic norm.

As the validity of each norm depends on a higher norm whose validity depends in turn on another higher norm, we eventually reach a point of no return. This is the basic norm or Grundnorm. All norms emanate from this norm in escalating levels of ‘concreteness’, including the very constitution of the state. Since, by definition, the validity of the basic norm cannot depend on any other norm, it has to be presupposed. Without this presupposition, Kelsen claims, we cannot understand the legal order. The basic norm exists, but only in the ‘juristic consciousness’. It is an assumption that makes possible our comprehension of the legal system by the legal scientist, judge, or lawyer. It is not, however, selected arbitrarily, but by reference to whether the legal order as a whole is ‘by and large’ effective. Its validity depends on efficacy. In other words, the validity of the basic norm rests, not on another norm or rule of law, but is assumed – for the purpose of purity. It is therefore a hypothesis, a wholly formal construct.

The nature of the basic norm is illustrated by Kelsen’s religious analogy in which a son is instructed by his father to go to school. To this individual norm, the son replies, ‘Why should I go to school?’ In other words, he asks why the subjective meaning of his father’s act of will is its objective meaning, i.e. a norm binding for him – or, which means the same thing, what is the basis of the validity of this norm. The father responds, ‘Because God has commanded that parents be obeyed – that is, God has authorized parents to issue commands to children.’ The son retorts, ‘Why should one obey the commands of God?’ He is, in Kelsenian terms, asking why the subjective meaning of this act of will of God is also its objective meaning – that is, a valid norm or, which amounts to the same thing, what is the basis of the validity of this general norm. The only possible answer to this is: because, as a believer, one presupposes that one ought to obey the commands of God. This is the statement of the validity of a norm that must be presupposed in a believer’s thinking in order to ground the validity of the norms of a religious morality. It constitutes the basic norm of a religious morality, the norm that grounds the validity of all the norms of that morality – a ‘basic’ norm, because no further question can be raised about the basis of its validity. The statement is not a positive norm – i.e. not a norm posited by a real act of will – but a norm presupposed in a believer’s thinking.

The basic norm is intended to have two major functions. First, it assists us in distinguishing between the demands of a robber and those of the law. In other words, it enables us to regard a coercive order as objectively valid. Secondly, it explains the coherence and unity of a legal order. All valid legal norms may be interpreted as a non-contradictory field of meaning.

Kelsen frames the basic norm as follows: “Coercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe. (In short: One ought to behave as the constitution prescribes.)”

The basic norm, as a purely formal construct, has no specific content. Any human conduct, Kelsen says, may be the subject matter of a legal norm. Nor can the validity of a positive legal order be denied merely because of the content of its norms. Since Kelsen argues that the effectiveness of the whole legal order is a necessary condition of its validity of every norm within it, implicit in the very existence of a legal system is the fact that its laws are generally obeyed. In The Pure Theory of Law he puts the matter bluntly: ‘Every by and large effective coercive order can be interpreted as an objectively valid normative order.’ But this is problematic. How can we know whether laws are actually being

observed or disregarded? How do we test whether the law is, in Kelsen’s phrase, ‘by and large’ effective? Many would say that the efficacy or otherwise of a legal order is an empirical matter, something we can witness or observe. But the pure theory spurns ‘sociological’ enquiries of this kind.

Kelsen also eschews any consideration of the reasons why the law might be effective (its rationality, goodness, etc.). If the validity of a legal order requires the effectiveness of its basic norm, it follows that when that basic norm of the system no longer attracts general support, there is no law. This is what happens after a successful revolution. The existing basic norm no longer exists, and, Kelsen says, once the new laws of the revolutionary government are effectively enforced, lawyers may presuppose a new basic norm. This is because the basic norm is not the constitution, but the presumption that the altered state of affairs ought to be accepted in fact.

Kelsen’s ideas have been cited by a number of courts in countries which have experienced revolutions: Uganda  Uganda v. Matovu, [1966] E. Afr. L.R. 514 (HC)., Rhodesia Madzimbamuto v. Lardner-Burke [1968] S. Afr. L.R. 284 (Rhodesia App. Div.); Also see the earlier decision, Madzimbamuto v. Lardner-Burke [1966] R.L.R. 756 (Rhodesia Gen. Div.). among other countries.

 

REFLECTION:  In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinions Application Number 2 of 2012 Advisory Opinion No. 2 of 2012, the Attorney-General asked the Supreme Court to offer an Advisory Opinion on the gender-equity principle in Article 81 of the Constitution. The provision provides: “The electoral system shall comply with the following principles – (b) Not more than two-thirds of the members of elective public bodies shall be of the same gender...” one of the questions posed to the Supreme Court was whether failure to meet the constitutionally prescribed gender composition of parliament after an election would render parliament unconstitutional and whether this would necessitate new elections. The Majority stated thus:  

 “[83] The ultimate question was whether, if the Courts were to take the position that a breach of the Constitution would be entailed if the general elections of March 2013 did not yield the stated gender proportions in the membership of the National Assembly and Senate, it was conceivable that the relevant organs would in their membership, be held to offend the Constitution. We would state that the Supreme Court, as a custodian of the integrity of the Constitution as the country’s charter of governance, is inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for effecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of the Constitution.”  

Does this answer by the Majority of the Supreme Court amount to suspension of the Constitution and what does it mean in terms of Hans Kelsen’s project? To help in your reflections read: Walter Khobe ‘Revisiting the Supreme Court’s Advisory Opinion on the Gender Equity Principle’ (2015) 8 The Platform pp 38-41.    

 

Law as social fact: Joseph Raz

Joseph Raz maintains that the identity and existence of a legal system may be tested by reference to three elements; efficacy, institutional character, and sources. Law is thus drained of its moral content, based on the idea that legality does not depend on its moral merit.

Raz argues that the law is autonomous: we can identify its content without recourse to morality. Legal reasoning, on the other hand, is not autonomous; it is an inevitable, and desirable, feature of judicial reasoning. For Raz, the existence and content of every law may be determined by a factual enquiry about conventions, institutions, and the intentions of participants in the legal system. The answer to the question ‘what is law?’ is always a fact. It is never a moral judgement. This marks him as an ‘exclusive’ positivist. ‘Exclusive’ because the reason we regard the law as authoritative is the fact that it is able to guide our behaviour in a way that morality cannot do. In other words, the law asserts its primacy over all other codes of conduct. Law is the ultimate source of authority. Thus, a legal system is quintessentially one of authoritative rules. It is this claim of authority that is the trademark of a legal system.  

 

The main statement of Raz’s views on legal reasoning is contained in his book, Ethics in the Public Domain. Raz distinguishes two forms of legal reasoning: reasoning ‘about what the law is’ and reasoning ‘about how legal disputes should be settled according to law’. Consistently with his exclusivist take on legal positivism, Raz argues that the first type of reasoning occurs independently of moral considerations, whereas the second is ‘straightforward moral reasoning’. In this way Raz seeks to preserve legal positivism’s ‘separability thesis’, while at the same time denying that legal reasoning is autonomous from moral reasoning when it comes to the application of a legal rule to decide a case. In essence, Raz argues that legal reasoning is non-evaluative and autonomous in so far as it is used to establish ‘the content of the law’, but evaluative and non-autonomous in so far as it is used to reason from a premise that the law ‘has a certain content’ to a particular legal conclusion.

 

Raz accepts the appropriate criteria by which a legal system may be identified as: its efficacy, its institutional character, and its sources. From all three, moral questions are excluded. Thus, the institutional character of law means simply that laws are identified by their relationship to certain institutions (e.g. the legislature). Anything – however morally acceptable – not admitted by such institutions is not law, and vice versa.

Raz justifies his approach on the basis that it accounts for a primary function of law: the setting of standards by which we are bound, in such a way that we cannot excuse our non-compliance by challenging the rationale for the standard.

REFLECTIONS:

1.      Costas Douzinas and Adam Gearey in ‘Critical Jurisprudence: The Political Philosophy of Justice’ call for a return to general jurisprudence from restricted jurisprudence, a process by which jurisprudence has been preoccupied with the question “what is law?”, “an endless interrogation of the essence or substance of law”. For them the result of such a restricted jurisprudence is that the inquiry of jurisprudence, what is considered relevant to jurisprudence is limited to a small number of institutions, practices and actors, with many excluded. A general jurisprudence encompasses a wider concern, examines a greater number of aspects, it is “concerned not just with posited law, but also with what can be called the law of the law”. General jurisprudence has a much wider concept of legality, which includes issues such as social being and social existence. Douzinas and Gearey emphasise the double meaning of jurisprudence, which simultaneously refers to law’s consciousness (the prudence, wisdom and phronesis of law), and its conscience (the exploration of law’s justice, the ideal law).

Given these sentiments by Douzinas and Gearey, and the reality that a post-authoritarian jurisprudence cannot only be the consciousness of law, but also involve a deep and continuous exploration of law’s conscience, is the positivist approach to law suited to post-authoritarian context like Kenya? To help in your reflections read:   Walter Khobe ‘The Supreme Court and the Aesthetic Turn in Post-Authoritarian Jurisprudence’ (2015) 3 The Platform pp. 56-61 and Walter Khobe ‘The Supreme Court versus Royal Media Services: History as ‘Super Context’ in Constitutional Interpretation’ (2018) 34 The Platform pp. 50-57.

 

2            In The Matter of the Interim Independent Electoral Commission, Advisory Opinion 2 of 2011. The Supreme Court made this comments about legal culture:

“[86]     In   common   with   other   final   Courts   in   The Commonwealth,   Kenya’s   Supreme   Court   is   not   bound   by   its decisions,   even   though   we   must   remain   alive   to   the   need   for certainty in the law. The rules of constitutional interpretation do not favour   formalistic   or   positivistic   approaches (Articles   20(4) and 259(1)).   The   Constitution   has   incorporated non-­legal considerations, which we must take into account, in exercising our jurisdiction.   The   Constitution   has   a   most   modern   Bill   of   Rights, that   envisions a   human ­rights based,   and social­ justice oriented State   and   society.   The   values   and   principles   articulated   in   the Preamble, in Article   10, in   Chapter   6,   and   in   various   other provisions, reflect historical, economic, social, cultural and political realities   and  aspirations   that   are   critical   in   building   a   robust, patriotic   and   indigenous  jurisprudence   for   Kenya. Article 159(1) states   that   judicial   authority   is   derived   from the   people. That authority must be reflected in the decisions made by the Courts.”

What would be your views on the approach by the Supreme Court in light of Kenya’s post-authoritarian context?

3            Read Chief Justice Willy Mutunga’s  University of Fort Hare Inaugural Distinguished Lecture Series October 16, 2014 titled ‘ THE 2010 CONSTITUTION OF KENYA AND ITS INTERPRETATION: REFLECTIONS FROM THE SUPREME COURT DECISIONS’ and critique his views on a positivist approach to constitutional interpretation. Further, have courts adhered to the approach advanced by the Chief Justice Mutunga?

 

4.           The Court of Appeal in Joseph Njuguna Mwaura Criminal Appeal No. 5 of 2008 stated thus:,

“A look at all the provisions of the law that impose the death sentence shows that these are couched in mandatory terms, using the word ‘shall’. It is not for the Judiciary to usurp the mandate of Parliament and outlaw a sentence that has been put in place by Kenyans, or purport to impose another sentence that has not been provided in law. It has no jurisdiction to do so, and in the words of the Nyarangi J in The Owners of Motor Vessel “Lillian S”. v Caltex Oil Kenya Ltd [1989] KLR 1:

“Jurisdiction is everything. Without it, a court has no power to make one step, where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”

It is incumbent upon any court intending to render an opinion or determine a matter to first ascertain the entry point to the doors of justice, and that is jurisdiction. The authority of the court is determined by the existence or the lack of jurisdiction to hear and determine disputes. In essence, jurisdiction is the first hurdle that a court will cross before it embarks on its decision making function.

In our understanding, courts have no jurisdiction in matters over which other arms of government have been vested with jurisdiction to act. Even under the new Constitutional dispensation, this court cannot properly or legitimately review the decisions of the people of Kenya, made during the referendum, or those of the legislation when those decisions are lawful. To say otherwise would be to act in complete contravention of the Constitution. 

As judges, our mandate is fidelity to the Constitution and to the law. We cannot interpret the Constitution and other statutes whimsically where no discretion or window has been provided. The right to life under Article 26  of the Constitution of Kenya, 2010 has been fashioned in a specific manner to provide, or include, specific circumstances where life is limited, that is, to the extent is provided by law.

In our view, to say that there are other alternative sentences to the mandatory imposition or application of the death sentence is a pedantic and preposterous interpretation of the spirit and the letter of the Penal Code and the Constitution of Kenya, 2010. If the people of Kenya intended in their wisdom, and their collective will to outlaw the death sentence, then nothing could have been easier to do.

We hold that the decision in Godfrey Mutiso v R to be per incuriam in so far as it purports to grant discretion in sentencing with regard to capital offences. Our reading of the law shows that the offences of murder contrary to section 203 as read with 204 of the Penal Code, treason contrary to section 40 of the Penal Code, administering of oaths to commit a capital offence contrary to section 60 of the Penal Code, robbery with violence contrary to section 296 (2) of the Penal Code and attempted robbery with violence contrary to section 297 (2) of the Penal Code carry the mandatory sentence of death.

The Court cannot purport to be ahead of the people of Kenya or Parliament. The best the Court can do is exercise judicial authority conferred upon it in accordance with Article 159 of the Constitution, and interpret and apply the law in the manner envisaged. We draw inspiration from the words of Stamp LJ in Blackburn vs Attorney General  [1971] EWCA Civ 7 where he stated that:

“Parliament enacts laws; and it is the duty of this Court in proper cases to interpret those laws when made; but it is no part of this Court's function or duty to make declarations in general terms regarding the powers of Parliament, more particularly where the circumstances in which the Court is asked to intervene are purely hypothetical.”

This position draws from the famous American case of Marbury v. Madison 5 U.S. 137, 1 Cranch 137 (1803) where Justice Marshall stated that:

“It is emphatically the province and duty of the judicial department to say what the law is.”

It is not the role of judges to engage in wandering and wilderness interpretation of what the law ought to be. To do so would be going outside the province of Article 159 and 259 of the Constitution of Kenya, 2010. It would also amount to deciding and designing the correct size of the clothes and shoes that the people of Kenya wear. As judges, we must be satisfied with the privilege and honour bestowed upon us by the people of Kenya. We must avoid the temptation or invitation to be ‘anti-death penalty crusaders’ when the law and the Constitution decree otherwise. That business is well and clearly articulated by certain organisations and individuals. We note that these are well represented in all spheres of life, and judges are not included.

We are aware that in the recent past, there have been no executions of the death sentence, and that the President of Kenya, in 2009, exercised the prerogative of mercy under section 27 of the former Constitution and commuted the sentences of death row convicts to life imprisonment. We however are not convinced that the death sentence is not a fit punishment to be meted out and carried out as provided for in the law.

Should Kenyans decide that it is time to remove the death sentence from our statute books, then they shall do so through their representatives in Parliament. In the meantime, the sentence of death shall continue to be imposed in case of conviction where the law provides.”

Interrogate the judicial philosophy of the court and its propriety in a post-authoritarian context. To help in your reflections read: Walter Khobe ‘The Court of Appeal is Failing to Give Effect to Constitutional Aspirations’ (2016) 13/14 The Platform pp. 85-91. 

 

5. In Samuel Kimuchu Gichuru & another v Attorney General & 3 others, Constitutional Application 111 of 2013 Justice Isaac Lenaola, building from a dicta by Chief Justice Mutunga, has characterised the constitutional change that took place in 2010 as a constitutional revolution. He observed as follows:  

“56.      I wholly adopt the above findings and would only add that the dawn of the Constitution 2010 came with fundamental changes. That Constitution has been hailed as a transformative charter that completely altered the social setting of the Government and its institution. The Supreme Court of Kenya in Re Senate, Advisory Opinion No.2 of 2013observed as follows in this regard:

[51] Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional “liberal” Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy…

57.      Further, constitutional change is a revolution and as such, it comes with the shedding of old rules.  Such a change in a constitutional manner is in the form of realignment of duties and obligations within the government structure. New institutions are created that take over powers and obligations from existing institutions. Some existing institutions and state organs are split, while others are abolished all together. This revolutionary nature of our Constitution was well noted by the Chief Justice in his concurring opinion in the Re Senate, Advisory Opinion when he stated thus;

“[160]  The Constitution of 2010 was a bold attempt to restructure the Kenyan State. It was a radical revision of the terms of a social contract whose vitality had long expired and which, for the most part, was dysfunctional, unresponsive, and unrepresentative of the peoples’ future aspirations. The success of this initiative to fundamentally restructure and reorder the Kenyan State is not guaranteed. It must be nurtured, aided, assisted and supported by citizens and institutions. This is why the Supreme Court Act imposes a transitional burden and duty on the Supreme Court. Indeed, constitutional relapses occur in moments of social transition, when individual or institutional vigilance slackens.

The Supreme Court has a restorative role, in this respect, assisting the transition process through interpretive vigilance. The Courts must patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercise their constitutional mandates, being conscious that their very infancy exposes them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order…””

On the other hand, Justice Otieno-Odek applied the notion of Kelsenian revolution in Dennis Mogambi Mong’are v Attorney General & 3 others, Civil Appeal 123 of 2012 and observed thus:

“119.  I have considered the submissions by counsel on the concept of grundnorm as propounded by the jurist Hans Kelsen. Elements of the Kelsenian concept are applicable to the 2010 Constitution; for instance, whenever a new constitutional order is established whether by revolution or evolution, there is a fresh beginning, the old order changes yielding place to a new order. (See Uganda – vs- Commissioner of Prisons Exparte Matovu (1966) EA 514 at 538).  The success and efficacy of a new Constitution results in a new grundnorm. The referendum conducted by the people of Kenya that led to the promulgation of the 2010 Constitution established a new constitutional order and provides the grundnorm for the 2010 Constitution. In this scenario, the old constitutional order prior to the effective date ceased and it was replaced   by a new constitutional order with new values and principles which include   vetting as a condition precedent for a judge to continue to serve in office.”  

                                                              

Given that in his work, General Theory of Law and State, Hans Kelsen formulates a definition of a revolution whose crux is that a revolution takes place "whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not prescribed by the first legal order itself", or "the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated". This did not occur in Kenya in 2010. There was no discontinuous legal fracture with the old legal order.

Can it therefore be right for Justice Lenaola and Otieno-Odek to characterise constitutional change in Kenya as a revolution in the Kelsenian sense? In the alternative explore the notion of ‘substantive legal revolution’ as developed by Lourens W. H. Ackermann The Legal Nature of the South African Constitutional Revolution and similarly developed by Drucilla Cornell and Nick Friedman in The Significance of Dworkin’s Non-Positivist Jurisprudence for Law in the Post-Colony, interrogate whether Odek and Lenaola’s characterisation fits in this scheme of ‘substantive legal revolution’?  To help in your reflections read: Walter Khobe ‘Kenya’s Conscientious Judge: Justice Isaac Lenaola and Constitutional Change as a Revolution’ (2016) 24 The Platform pp. 18-20.

 

 

6. Chief Justice Willy Mutunga noted thus in this respect in his Concurring Opinion in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition No. 2B of 2014 at paragraph 232:

“To emphasize, our Constitution cannot be interpreted as a legal-centric letter and text. It is a document whose text and spirit has varied content, as amplified by the Supreme Court Act, that is not solely reflective of jural phenomena. This content has historical, economic, social, cultural, and political contexts of the country, and also reflects the traditions of our country. References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will also have to take into account these peculiar Kenyan needs and contexts.”

Do these arguments cohere with the tenets of positivism?

 

7.  Reflect on Justice Taney’s opinion in the infamous Dred Scott v. Sandford, 60 U.S. 393, 405 (1857):

“It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws [the provisions of the Constitution]. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.”

Which judicial philosophy does Justice Taney subscribe to? Read Kwesi H Prempeh’s two journal articles titled “Marbury in Africa” and “A New Jurisprudence for Africa” what is the relevance and applicability of this philosophy in a post-authoritarian transformative context like Kenya? 

8. Reflect on the Judicial philosophy of the Court of Appeal in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLR where the court stated thus: “89. We note that the trial court correctly observed that there is no legislation in Kenya dealing with forcible eviction and resettlement of persons occupying public or private land. It is noteworthy that an Evictions and Resettlement Procedures Bill of 2012 was published in the Kenya Gazette of 27^thAugust 2012. The objectives of the Bill is to provide for an Act of Parliament to set out appropriate procedures applicable to forced evictions; to provide protection, prevention and redress against forced eviction for all persons occupying land including squatters and unlawful occupiers; and to provide for matters incidental and connected thereto. The Bill despite being published in 2012 has not been enacted into law. Incidentally, the Bill contains provisions similar to the orders and directions issued by the High Court in this case and in the case of Satrose Ayuma (supra). It is within the competence of the legislative to enact a law that governs evictions and resettlement and until that is done; court must interpret and apply the law as it stands.” What is the juridical philosophy of the judges in this case?  To help in your reflections read: Walter Khobe ‘The Resurrection of Justice Norbury Dugdale’ (2016) 21 The Platform pp.51-55. 

9. Reflect on the Court of Appeal’s decision in Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others[2018] eKLR, where the court rendered itself thus: “We say so because our current constitutional dispensation leans towards determination of disputes on merit. Therefore, taking into consideration our historical background which is replete with determination of disputes on technicalities, and now the legal underpinning provisions of superiority of our constitutional value system, we think that the route taken by the learned judges to dismiss petitions on technicalities that do not affect the jurisdiction is not a reflection or manifestation of our current jurisprudence and justice system. Indeed one could go so far to say the superiority of the constitutional value system is the central premise or foundation of our 2010 Constitution. The elevation and prominence placed on substantive justice is so critical and pivotal to the extent that Article 159 of the Constitution implies an approach leaning towards substantive determination of disputes upon hearing both sides on evidence. Any other construction placed on Rule 8(1) in view of the fact that the materials allegedly not produced by the petitioner were before court and supplied by the respondents, was an attempt to move the goal posts after the ball had been kicked. There is nothing in the language of Rule 8(1) that suggests that documents in the court file, courtesy of another party other than the petitioner, can be ignored or be a basis for dismissing or striking out the petition.” What is the jurisprudential disposition of the bench in this case?

 

10. Kenyan courts, even in the post-2010 dispensation, have continued to cite the dicta by Potter, JA, in Ngobit Estate Limited v Carnegie [1982] KLR 437 to the effect “that it is the function of the judiciary to interpret the law, not to make it”. Taking into account the transformative leitmotif of the 2010 Constitution and the decree that judges should embrace transformative adjudication, interrogate the applicability of this dicta by Potter, JA to adjudication in post-2010 Kenya.

11. The Judges and Magistrates Vetting Board in the FOURTH ANNOUNCEMENT: DETERMINATIONS ON SUITABILITY AND ON REQUESTS FOR REVIEW [2012] eKLR rendered itself thus: “The Constitution declares that judicial authority derives from the people, re-affirming the sovereignty of the Kenyan people. The courts and the tribunals are required to exercise their judicial authority in a manner that ensures that justice is done to all irrespective of status, that justice is not delayed and that justice is administered without undue regard to procedural technicalities. We are unaware of any other constitution in the world that has chosen to elevate the avoidance of undue technicalities to the status of an express constitutional value. Sad Kenyan experience indicates why those words were included. The raising of technical and procedural questions was a particularly strong weapon in the armoury of those who sought to defend the powerful and the wealthy with the connivance of compliant judges. Substantive questions could be evaded and matters left to drift in the courts for so long that outcomes became irrelevant. Reliance on ultra- technicality was used to impede the work of agencies set up to investigate malfeasance by those in positions of authority. Far from furthering the rule of law, these narrow, technical rulings, issued in the name of legality, contributed massively to the prevalence of impunity. Indeed, they undermined the rule of law, promoting a spirit of lawlessness that proceeded from the highest in the land all the way down. The unhappy lesson for the country was that the emancipatory vision of the rule of law should not be confused with the tyranny of heartless legalism. None of this is to say that rigour in maintaining legality and following proper procedures should be discarded in the name of achieving substantive justice. It is simply to emphasise that in interpreting and implementing legislation, the rule of law requires that the objective at all times should be to achieve the vision of justice proclaimed by the Constitution. Thus, adherence to the rule of law under the Constitution would require: (i)  expansive interpretations of the law that favoured national values and the social objectives set out in the Constitution, and worked towards ameliorating the conditions of the underprivileged and the marginalised groups referred to in the Constitution; and (ii) purposive interpretations of statutes that promoted coherent functioning of the legislature in keeping with constitutional objectives.”  Have Kenyan judges upheld the emancipatory vision of the rule of law in their interpretative work or have they embraced the tyranny of heartless legalism?

 

MODERN NON-POSITIVIST/ ANTI-POSITIVIST LEGAL THEORIES

RONALD DWORKIN AND LAW AS INTERPRETATION

The foundations of legal philosophy were shaken in the 1970s by the ideas of the American jurist, Ronald Dworkin. The dominance of legal positivism was over the next three decades subjected to a comprehensive onslaught in the form of a complex theory of law that is both controversial and highly influential. His concept of law continues to exert considerable authority whenever contentious moral and political issues are debated. It is unthinkable that any serious analysis of, say, constitutional adjudication of, the issue of abortion, or general questions of liberty and equality could be conducted without a consideration of the views of Ronald Dworkin. His constructive vision of law is both a profound analysis of the concept of law and a compelling entreaty in support of its enrichment.

Among the numerous elements of his sophisticated philosophy is the contention that the law contains a solution to almost every problem. This is at variance with the traditional – positivist –perception that, when a judge is faced with a difficult case to which no statute or previous decision applies, he exercises a discretion and decides the case on the basis of what seems to him to be the correct answer. Dworkin contests this position, and shows how a judge does not make law, but rather interprets what is already part of the legal materials. Through his interpretation of these materials, he gives voice to the values to which the legal system is committed.

To understand Dworkin’s key proposition that law is a ‘gapless’ system, consider the following two situations:

An impatient beneficiary under a will murders the testator. Should he be permitted to inherit?

A chess grand master distracts his opponent by continually smiling at him. The opponent objects. Is smiling in breach of the rules of chess?

Hard cases

These are both ‘hard cases’ for in neither case is there a determinable rule to resolve it. This gives legal positivists a headache, for, positivism generally claims that law consists of rules determined by social facts. Where, as in these examples, rules run out, the problem can be resolved only by the exercise of a subjective, and hence potentially arbitrary, discretion: a lawyer’s nightmare.

If, however, there is more to law than rules, as Dworkin claims, then an answer may be found in the law itself. Hard cases such as these may, in other words, be decided by reference to the legal materials; there is no need to reach outside the law and so to allow subjective judgements to enter.

The first puzzle mentioned above is drawn from the New York decision of Riggs v. Palmer in 1899. The will in question was validly executed and was in the murderer’s favour. But whether a murderer could inherit was uncertain: the rules of testamentary succession provided no applicable exception. The murderer should therefore have a right to his inheritance. The New York court held, however, that the application of the rules was subject to the principle that ‘no person should profit from his own wrong’. Hence a murderer could not inherit from his victim. This decision reveals, Dworkin argues, that, in addition to rules, the law includes principles.

In the second dilemma, Dworkin argues, the referee is called upon to determine whether smiling is in breach of the rules of chess. The rules are silent. He must therefore consider the nature of chess as a game of intellectual skill; does this include the use of psychological intimidation? He must, in other words, find the answer that best ‘fits’ and explains the practice of chess. To this question there will be a right answer. And this is equally true of the judge deciding a hard case.

Legal systems characteristically generate controversial or hard cases such as these in which a judge may need to consider whether to look beyond the strict letter of what the law is to determine what it ought to be. He engages, in other words, in a process of interpretation in which arguments that resemble moral claims feature. This interpretive dimension of law is a fundamental component of Dworkin’s theory. His assault on legal positivism is premised on the impossibility of the separation between law and morals that it proposes.

Thus for Dworkin, law consists not merely of rules, as Hart contends, but includes what Dworkin calls non-rule standards. When a court has to decide a hard case it will draw on these (moral or political) standards – principles and policies – in order to reach a decision. No rule of recognition – as described by Hart– exists to distinguish between legal and moral principles. Deciding what the law is depends inescapably on moral-political considerations.

In a hard case the judge therefore draws on principles, including his own conception of the best interpretation of the system of political institutions and decisions of his community. ‘Could my decision’, he must ask, ‘form part of the best moral theory justifying the whole legal and political system?’ There can only be one right answer to every legal problem; the judge has a duty to find it. His answer is ‘right’ in the sense that it fits best with the institutional and constitutional history of his society and is morally justified. Legal argument and analysis are therefore ‘interpretive’ because they attempt to make the best moral sense of legal practices.

 

Principles and policies

Dworkin’s account of the judicial function requires the judge to treat the law as if it were a seamless web. There is no law beyond the law. Nor, contrary to the positivist thesis, are there any gaps in the law. Law and morals are inextricably intertwined. There cannot therefore be a rule of recognition by which to identify the law. Nor does Hart’s view of law as a union of primary and secondary rules provide an accurate model, for it omits or at least neglects the importance of principles and policies.

Dworkin claims that, while rules ‘are applicable in an all-or-nothing fashion’, principles and policies have ‘the dimension of weight or importance’. In other words, if a rule applies, and it is a valid rule, a case must be decided in a way dictated by the rule. A principle, on the other hand, provides a reason for deciding the case in a particular way, but it is not a conclusive reason: it will have to be weighed against other principles in the system.

Principles differ from policies in that the former is ‘a standard to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality’. A ‘policy’, however, is ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’.

Principles describe rights; policies describe goals. But rights are trumps. They have a ‘threshold weight’ against community goals. They should not be squashed by a competing community goal. Every civil case, he argues, raises the question, ‘Does the plaintiff have a right to win?’ The community’s interests should not come into play. Thus civil cases are, and should be, decided by principles. Even where a judge appears to be advancing an argument of policy, we should interpret him as referring to principle because he is, in fact, determining the individual rights of members of the community. Thus, should a judge appeal, say, to public safety, to justify some abstract right, this should be read as an appeal to the competing rights of those whose security will be forfeited if the abstract right is made concrete.

In a ‘hard case’ – like the homicidal beneficiary in Riggs v. Palmer– no rule is immediately applicable. Thus the judge must apply standards other than rules. The ideal judge – whom Dworkin calls Hercules – must ‘construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory principles as well’. Where the legal materials permit more than one consistent interpretation, Hercules will decide on the theory of law and justice which best coheres with the ‘institutional history’ of his community.

A key – controversial – component of Dworkinian legal theory is its claimed affinity to literary interpretation. When we attempt to interpret a work of art, Dworkin argues, we seek to understand it in a particular way. We try to portray the book, movie, poem, or picture accurately. We want to establish, as far as we are able, the intentions of the author in a constructive manner. Why did Henry James choose to write about these particular characters? What was his purpose? In answering these sorts of questions, we characteristically attempt to give the best account of the novel we can.

Law, claims Dworkin, like a novel or a play, requires interpretation. Judges are like interpreters of a developing story. They acknowledge their duty to preserve rather than reject their judicial tradition. They therefore develop, in response to their own beliefs and instincts, theories of the most constructive interpretation of their obligations within that tradition. We should therefore think of judges as authors engaged in a chain novel, each one of whom is required to write a new chapter which is added to what the next co-novelist receives. Each novelist attempts to make a single novel out of the previous chapters; he endeavours to write his chapter so that the ultimate result will be coherent. To accomplish this, he requires a vision of the story as it proceeds: its characters, plot, theme, genre, and general purpose. He will try to find the meaning in the evolving creation, and an interpretation that best justifies it.

 

The Majority of the Supreme Court underscored the difference between constitutional principles and norms (rules) In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinions Application Number 2 of 2012 Advisory Opinion No. 2 of 2012, thus:    

 “[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm. ...

[69] ...As already remarked in this Opinion, Kenya’s Constitution carries both specific normative prescriptions, and general statements of policy and principle: the latter inspire the development of concrete norms for specific enforcement; the former can support the principle maturing into a specific, enforceable right.”

 

REFLECTIONS: READ ON THE APPROACH ADOPTED BY THE SUPREME COURT OF KENYA IN THE MUNYA DECISION ON THE COURT’S JURISDICTION IN MATTERS INVOLVING INTERPRETATION AND APPLICATION OF THE CONSTITUTION, IS IT TRUE TO ASSERT THAT THE COURT’S APPOACH IS A VINDICATION OF DWORKIN’S DISTINCTION BETWEEN RULES AND PRINCIPLES? To help in your reflections read: Walter Khobe ‘From Willy Mutunga to David Maraga: Impending Jurisprudential Shift?’ (2016) 23 The Platform pp. 32-47.

 

 

Law as integrity

As a constructive interpreter of the preceding chapters of the law, Hercules, the superhuman judge, will espouse the best account of the concept of law. And, in Dworkin’s view, that consists in what he calls ‘law as integrity’. This obliges Hercules to enquire whether his interpretation of the law could form part of a coherent theory justifying the whole legal system. What is ‘integrity’? Dworkin offers the following description of its important elements: “[L]aw as integrity accepts law and legal rights wholeheartedly . . . It supposes that law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does. . . . It argues that rights and responsibilities flow from past decisions and so count as legal, not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification.”

The collective application of coercion is defensible only when a society accepts integrity as a political virtue. This enables it to justify its moral authority to exercise a monopoly of force. Integrity is also a safeguard against partiality, deceit, and corruption. It ensures that the law is conceived as a matter of principle –addressing all members of the community as equals. It is, in short, an amalgam of values which form the essence of the liberal society and the rule of law, or, as Dworkin, has called it, ‘legality’.

REFLECTIONS:

1.      Read Drucilla Cornell & Nick Friedman ‘The significance of Dworkin’s non positivist jurisprudence for law in the post colony’ (2010) 4(1) Malawi Law Journal 1 and Mundia Ronald ‘Ronald Dworkin and the Supreme Court of Namibia’ LLD Thesis: What is the place of Ronald Dworkin’s work on legal reasoning to the development of a post-authoritarian jurisprudence in a transforming context like Kenya?    

2.      Read Murray Wesson and Max Du Plessis ‘Hart, Dworkin and the Nature of (South African) Legal Theory SALJ (2006) 123. The canon of statutory interpretation in article 20(3) of the Constitution can be said to be a modelled on Dworkin’s ‘constructive interpretation’ theory. Do You agree with these assertion? For clarity, Chief Justice Willy Mutunga illuminated this new canon of statutory interpretation thus in Hon. Justice Kalpana Rawal and Others v Judicial Service Commission and Others, Applications No. 11 and 12 of 2016:

“[30] One cannot entertain any doubt that the power of the Chief Justice to determine sittings of the Court and the manner of exercise of that power, will in all cases implicate or have an effect on a party’s right to appeal and the right to have the dispute determined expeditiously. Because the exercise of that power has an implication on the rights of a party, there is a duty on this Court, by dint of Article 20(3)(b), to interpret that provision in a way that most favours the enjoyment of that right. Article 20(3)(b) provides: “(3) In applying a provision of the Bill of Rights, a court shall- (a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and (b)adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”

[31] This rule of interpretation that any law, including statutory law which affects rights must be interpreted to comport with the spirit, purport and objects of rights in the Bill of Rights also appears in Article 20(4)(b) of the Constitution. In my dissent in Nicholas Arap Kiptoo Salat v Independent Electoral and Boundaries Commission and Others Supreme Court Petition No. 23 of 2014; [2015] eKLR, I stated that: 20 “As I read these provisions they mean that if any existing rule of common law does not adequately comply with the Bill of Rights, the court has the obligation to develop the rule so that it does comply. Additionally, the court has the obligation to interpret statute in a way that also complies with the Bill of Rights.”

[32] In South Africa, a similar provision is to be found in Section 39(2) of the Constitution, and which the Court has interpreted in Fraser v ABSA Bank Limited [2006] ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) at paragraph 43 that: “When interpreting legislation, a court must promote the spirit, purport and objects of the Bill of Rights in terms of section 39(2) of the Constitution. This Court has made clear that section 39(2) fashions a mandatory constitutional canon of statutory interpretation.”

 [33] In Makate v Vodacom (Pty) Ltd [2016] ZACC 13, at paragraphs 88 and 90 Jafta J made further illumination to the principle espoused in Fraser on the duty imposed by Section 39(2): 21 “It is apparent from Fraser that section 39(2) introduced to our law a new rule in terms of which statutes must be construed. It also appears from the same statement that this new aid of interpretation is mandatory. This means that courts must at all times bear in mind the provisions of section 39(2) when interpreting legislation. If the provision under construction implicates or affects rights in the Bill of Rights, then the obligation in section 39(2) is activated. The court is duty-bound to promote the purport, spirit and objects of the Bill of Rights in the process of interpreting the provision in question. … It cannot be disputed that section 10(1) read with sections 11 and 12 of the Prescription Act limits the rights guaranteed by section 34 of the Constitution. Therefore, in construing those provisions, the High Court was obliged to follow section 39(2), irrespective of whether the parties had asked for it or not. This is so because the operation of section 39(2) does not depend on the wishes of litigants. The Constitution in plain terms mandates courts to invoke the section when discharging their judicial function of interpreting legislation. That duty is triggered as soon as 22 the provision under interpretation affects the rights in the Bill of Rights.”

 [34] Therefore, in construing a provision in the Rules which accord the power to determine sittings of the Court, a broad interpretation that most favours the right to appeal and expeditious dispensation of disputes at the Supreme Court must be preferred. The power to determine sitting of the Court must therefore include the power to decide the place, date and time of the sitting and quorum of the Court. On the contrary, adopting an interpretation that does not assign that power to a specific person or authority creates an administrative void which may affect the hearing and adjudication of appeals before the Supreme Court.” To help in your reflections read: Walter Khobe ‘Willy Mutunga’s Last Cadenza: The Ultimate Rule of Statutory Interpretation’ (2016) 20 The Platform pp. 18-20.

 

 

ROBERT ALEXY AND DISCOURSE THEORY OF LAW

 

Robert Alexy’s three principal works are: A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (trs Ruth Adler and Neil MacCormick) (Oxford University Press 1989); A Theory of Constitutional Rights (tr Julian Rivers) (Oxford University Press2002) and The Argument from Injustice: A Reply to Legal Positivism (trs Stanley L Paulson and Bonnie Litschewski Paulson) (Clarendon Press 2002).

The three books, as well as numerous articles and chapters refining and extending the ideas they contain, cohere around a set of distinctive and related theses. This can most easily be seen by reflecting on the implications of his final statement defining law at the end of ‘The Argument from Injustice’:

“The law is a system of norms that (1) lays claim to correctness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that manifest a minimum social efficacy or prospect of social efficacy and that are not themselves unjust in the extreme, and finally, (3) comprises the principles and other normative arguments on which the process or procedure of law application is and/or must be based in order to satisfy the claim to correctness.”

 

According to Alexy, rational public discourse is both substantively committed to the values of liberal democratic constitutionalism, but is also open-ended, resulting in the practical need for mechanisms of decision-taking and closure. As an institution, law represents that point of closure, but to maintain legitimacy the authoritative system of norms must remain open to influence at numerous points – not just in formal legislative acts but also in judicial interpretation and development. The character of law, which rests on a basic norm-theoretical distinction between principles and rules, and the balancing of principles under a liberal constitutional order, are central elements of the pervading openness of law. So law necessarily has a complex dual nature, combining the real acts of authoritative norm-issuance at various institutional levels with perpetual reference back to its ideal purpose as an enterprise engaged in the collective realisation of public reason.

 

It is important to note that Robert Alexy revived Radbruch’s formula that extreme injustice cannot be law and has put Habermas’s discourse ethics to the service of a form of natural law that many prefer to call ‘anti-positivist’ or ‘non-positivist’ form of legal theory. By setting out to defend the Radbruch Formula, Alexy connects with a familiar element of Anglo-American jurisprudential debate, since it was Radbruch’s enagagement with the problem of unjust laws which appeared in the famous 1957 exchange between H.L.A. Hart and Lon Fuller, recorded in the pages of the Harvard Law Review. This has led to the characterisation of Alexyian theory as “weak natural law”.

 

At the core of Robert Alexy’s reflections is the thesis that Law holds a double nature, with a real (or factual) dimension and an ideal one. The factual dimension manifests itself in the formal validity of the norm and in its social efficacy. The ideal dimension is manifested in its moral correctness. In homing in on the idea of moral correctness as a tertiary element, at the side of the validity and of the social efficacy, we overcome the positivist concept of Law. In fact, the most visible boundary between positivism and non-positivism is precisely found in the relations between Law and morality: whilst positivists uphold a separation between the two, the non-positivists affirm that there is a necessary linkage between them.

 

Well, moral correctness, a characteristic idea of Alexy’s thinking, is manifested in the world of Law in the form of justice. In his textual words: “Whoever affirms that something is right, always affirms, at the same time, that it is correct”. In this vein, Alexy refutes Kelsen’s idea that “any content could be lawful”, which would thus give space for the possibility of a normativity without morality. Against this vision, we find the opposing and famous formula of Radbruch’s, which in succinct is pronounced as follows: “Extreme injustice is not lawful”. Following this line, Alexy thinks that what it is extremely unjust is all that which offends basic human rights. And this basic justice has universal validity. 

 

Once these are incorporated into the Constitution, human rights become fundamental rights, and bind all state Powers and represent an opening of the juridical system before a moral system. Fundamental rights enjoy a central position in the system, reflecting themselves in all other spheres of infraconstitutional law. This comprehensive or holistic vision of fundamental rights was originally developed by the German Federal Constitutional Tribunal, in the famous Luth case, commented by Alexy in many of his texts. The German Federal Constitutional Court in Lüth Decision BVerfGE 7, 198 I. Senate (1 BvR 400/51) in one of the most famous paragraphs of the court’s history noted as follows:

“But far from being a value free system the constitution erects an objective system of values in its section on basic rights and thus expresses and reinforces the validity of the basic rights. This system of values, centering on the freedom of human being to develop the society must apply as a constitutional axiom throughout the whole legal system: It must direct and inform legislation, administration and judicial decisions. It naturally influences private law as well, no rule of private law may conflict with it, and all such rules must be construed in accordance with its spirit.”

 

In summary he states that a moral correctness of law and of legal decisions impose a binding between Law and morality. In Law, correctness equals to the idea of justice. The minimum reserve of justice corresponds to basic human rights. And these, transformed in fundamental rights by means of their inclusion in the Constitution, condition the understanding of the whole of the legal system. 

 

Reflections:

1.      What are the similarities and differences between Dworkinian interpretivism and Alexyian discourse theory of law?

 

2       Read Walter Khobe’s attempts to introduce/apply Alexyian ‘non-positivist’/ ‘anti-positivist’ theory to Kenyan legal thought, do you think Alexy’s ideas comport with the constitutional order brought by the 2010 Constitution as argued by Khobe in ‘The Chimera of Constitutionally Entrenched Gender Quotas: The Case of Kenya’ (2015) 46 The Zambia Law Journal pp.53-83; ‘Revisiting the Supreme Court’s Advisory Opinion on the Gender Equity Principle’ (2015) 8 The Platform pp 38-41; ‘From Willy Mutunga to David Maraga: Impending Jurisprudential Shift?’ (2016) 23 The Platform pp. 32-47 and ‘The High Court’s conflation of Principles with Rights: A Reply to Justice G.V. Odunga’ (2018) 37 The Platform? 

 

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In preparation for the next class read: Dikgang Moseneke ‘The Fourth Bram Fischer Memorial Lecture: Transformative Adjudication’; Karl Klare ‘Legal Culture and Transformative Constitutionalism’; and  Henk Botha ‘Albie Sachs and the politics of interpretation’.

 

CRITICAL LEGAL THEORY

Critical legal theory repudiates what is taken to be the natural order of things, be it patriarchy (in the case of feminist jurisprudence), the conception of race (critical race theory), the free market (critical legal studies), or metanarratives (postmodernism).

The primary purpose of critical legal theory is to contest the universal rational foundation of law which, it maintains, clothes the law and legal system with a spurious legitimacy. Nor does critical legal theory accept law as distinctive and discrete discipline. This view, critical legal theory alleges, portrays the concept of law as autonomous and determinate –i.e. independent from politics and morality- which it can never be.

The myth of determinancy is a significant component of the critical assault on law. Far from being a determinate, coherent body of rules and doctrine, the law is depicted as uncertain, ambiguous, and unstable. And instead of expressing rationality, the law reproduces political and economic power. In addition, as many of the adherents of critical legal studies (CLS) claim, the law is neither neutral nor objective. To achieve neutrality, the law employs several fictions or illusions. Most conspicuously, it vaunts the liberal ideal of equality under the rule of law. But this, in the view of CLS, is a myth.

Legal realism

The dawn of the 20^th century saw the emergence of legal realists, arguing that the established legal tradition was formalistic, mechanical and conservative. Chief among the realists were Oliver Wendell Holmes Jr., Karl Llewellyn, Jerome Frank, among others. That tradition, they charged, wrongly saw the law as a complete and autonomous system of logically consistent principles, concepts, and rules. To apply the law was to unfold the ineluctable implications of those rules. The judge's techniques were socially neutral, his or her private views irrelevant; judging was more like finding than making, a matter of necessity rather than choice. The realists, by contrast, saw legal certainty as rarely attainable and perhaps even undesirable in a changing society. In their view the paramount concern of the law was not logical consistency but socially desirable consequences. Law was an instrument of government, and jurisprudence should focus less on legal concepts than on social facts.

Basis of Legal Realism

According to the realists, legal decisions were not compelled; choice was necessary at every step. Just as lawmakers built their ideological preferences into a statute, judges built theirs into their formulation of "the facts" of a case. Legal concepts represented nothing more than tentative decisions to consider diverse cases identical with respect to a given concern. Unless readjusted continually, such concepts could be rendered irrelevant by changing circumstances and purposes.

Realism meant opposition to illusion or pretense, sometimes to abstractions or appearances. Judges had always made law, but now, the realists insisted, they must know and say that they did. They must acknowledge their responsibility instead of attributing their choices, through tortured technicalities, to the compulsions of legal doctrine. Realists argued that legal rules and reasons figure in judicial decision-making simply as post-hoc rationalizations for decisions reached on the basis of non-legal considerations.

The realists argued that the law was “indeterminate”. By this, they meant two things: first, that the law was rationally indeterminate, in the sense that the available class of legal reasons did not justify a unique decision (at least in those cases that reached the stage of appellate review) ; but second, that the law was also causally or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did. Causal indeterminancy entails rational indeterminancy on the assumption that judges are responsive to applicable (justificatory) legal reasons. 

As to the core claim of realists, all the realists agreed that the law and legal reasons are rationally indeterminate, so that the best explanation for why judges decide as they do must look beyond the law itself. Thus to realists, judges respond primarily to the stimulus of the facts of the case, rather than legal rules and reasons. However, unlike the later Critical Legal Studies writers, the Realists, for the most part, did not overstate the scope of indeterminancy in law. The Realists were generally clear that their focus was the indeterminancy of appellate review, where one ought to expect a higher degree of uncertainty in the law.

Two branches of realism

Although all the realists accepted the core claim, they parted company over the question of how to explain why judges respond to the underlying facts of the case as they do.

1.      The sociological wing of realism- represented by writers like Herman Oliphant, Underhill Moore, Karl Llewellyn and Felix Cohen- thought that judicial decisions fell into predictable patterns. From this fact, these realists inferred that various ‘social’ forces must operate upon judges to force them to respond to facts in similar, predictable, ways. For example, this is often seen to involve substantive (or prudential) arguments. Such arguments may also appear in cases involving rather abstract general clauses or abstract and value-laden legal provisions. An example would be the so-called Brandeis Briefs, named after Louis Brandeis (judge of the U.S. Supreme Court between 1916 and1939) who argued as an attorney in the case Muller v. Oregon 208 U.S. 412 (1908) by delivering a detailed sociological presentation of the social effects of long working hours on women.

 

2.      The idiosyncrasy wing of  realism-represented by Jerome Frank and Judge Joseph Hutcheson- claimed that what determines the judge’s response to the facts of a particular case are idiosyncratic facts about the psychology or personality of that individual judge.  

 

 

Critical legal studies (CLS)

CLS emerged in the 1970s in the United States as a broadly leftist critique of orthodox legal doctrines. It sought to tackle the injustices it identified in legal doctrine. CLS school argues that far more often than is usually suspected the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, the disabled, homosexuals, etc.) for greater justice. This claim is often coupled with the legal realist argument that what the law says it does and what it actually tends to do are two different things. Many laws claim to have the aim of protecting the interests of the poor and the subaltern. In reality, they often serve the interests of the power elites. This, however, does not have to be the case, claim the CLS scholars. There is nothing intrinsic to the idea of law that should make it into a vehicle of social injustice. It is just that the scale of the reform that needs to be undertaken to realize this objective is significantly greater than the mainstream legal discourse is ready to acknowledge. 

CLS is often characterised as a latter-day version of the American realist movement of the 1920s and 1930s. American realism was the name given to a progressive coalition of lawyers, judges and scholars that rejected the formalism inherent in positivism and presented a more sociological account of the ‘law in action’. They eschewed what they considered to be the ponderous metaphysics that preoccupied legal theory, and its fixation with the meaning of concepts such as commands, rules, norms, or any other construct that had no foundation in what they regarded as ‘reality’.

American realism was absorbed in empirical questions, especially those that attempt to discern the sociological and psychological factors that influence judicial decisions-making. Notwithstanding this pragmatic approach, they were inherently legal positivists. Thus while they did not wholly spurn the notion that courts may be constrained by rules, the realists contended that judges exercise discretion much more frequently than is generally believed. For realists, the key factors in determining the outcome of a case were the political and moral institutions relating to its facts.

The father of the realist movement, Oliver Wendell Holmes, in his celebrated work ‘The Path of the Law’ expressed the view that law should be defined by reference to what the courts actually said it was. Karl Llewellyn, another realist, adopted a so-called functionalist approach to the law that perceives it as serving certain fundamental functions, what he calls ‘law-jobs’. He reasoned that law should be regarded as an engine ‘having purposes, not values in itself’. If society is to endure, certain essential requirements must be satisfied; this produces conflict which must be resolved. The central idea of this functionalist account of law is the ‘institution’ of law which performs various jobs. An institution is, he says, an organised activity built around the doing of a job or cluster of jobs. And the most important job the law has is the disposition of trouble cases.

It is true that both American realism and CLS share a sceptical, anti-formalist view, but CLS cannot properly be regarded as a ‘new realism’. Though both movements seek to demystify the law, and to expose its operation as law ‘in action’, CLS does not engage in the pragmatic or empirical concerns that preoccupied the realists. Instead, its adherents regard the law as ‘problematic’ in the sense that it reproduces the oppressive nature of society. Moreover, unlike the American realists who accepted the division between legal reasoning and politics, CLS regards it as axiomatic that, in effect, law is politics; and legal reasoning is no different from other forms of reasoning. In addition, although the realists sought to distinguish between legal rules and their actual operation in society, they generally embraced the neutrality of law and the ideology of liberalism. CLS denies both.

Indeed, applying Marxist and Freudian ideas, CLS detects in the law a form of ‘hegemonic consciousness’, a term borrowed from the writings of the Italian Marxist, Antonio Gramsci, who observed that social order is maintained by a system of beliefs which are accepted as ‘common sense’ and part of the natural order –even by those who are actually subordinated to it. In other words, these ideas are treated as eternal and necessary whereas they really reflect only the transitory, arbitrary interests of the dominant elite. An example of this is Robert Hale’s classic Realist arguments about how all voluntary agreements (in his examples chiefly for employment) are the products of legally constituted and almost invariably disparate bargaining power. 

And they are ‘reified’, a term used by Marx and refined by the Hungarian Marxist, György Lukács, to refer to the manner in which ideas become material things, and are portrayed as essential, necessary, and objective when, in fact, they are contingent, arbitrary, and subjective. Moreover, legal thought is, following Freud, a form of ‘denial’: it affords a way of coping with contradictions that are too painful for us to hold in our conscious mind. It therefore denies the contradiction between the promise, on the one hand of, say, equality and freedom, and the reality of oppression and hierarchy, on the other.

The Brazilian social theorist, Roberto Unger is a leading proponent of CLS ideas. The representation of society, he contends, is infused with the following two beliefs.

First, that law is a ‘system’, and as a body of ‘doctrine’, properly interpreted, it supplies the answer to all questions about social behaviour. Secondly, that a special form of legal reasoning exists by which answers may be found from doctrine. Thirdly, that this doctrine reflects a coherent view about the relations between persons and the nature of society. And, fourthly, that social action reflects norms generated by the legal system, either because people internalize these norms or actual coercion compels them to do so.

CLS challenges each of these assumptions. First, it denies that law is a system or is able to resolve every conceivable problem. This is described as the principle of indeterminacy. This  theme is that contrary to the common perception, legal materials (such as statutes and case law) do not completely determine the outcome of legal disputes, or, to put it differently, the law may well impose many significant constraints on the adjudicators in the form of substantive rules, but, in the final analysis, this may often not be enough to bind them to come to a particular decision in a given particular case.

Secondly, it rejects the view that there is an autonomous and neutral mode of legal reasoning. This is described as the principle of anti-formalism. This is the idea that all "law is politics". This means that legal decisions are a form of political decision, but not that it is impossible to tell judicial and legislative acts apart. Rather, CLS have argued that while the form may differ, both are based around the construction and maintenance of a form of social space. The argument takes aim at the positivist idea that law and politics can be entirely separated from one another. A more nuanced view has emerged more recently. This rejects the reductivism of 'all law is politics' and instead asserts that the two disciplines are mutually intertwined. There is no 'pure' law or politics, but rather the two forms work together and constantly shift between the two linguistic registers. (Is there a difference between ‘neutrality’ and ‘objectivity’? Is it right for those who advocate for the CLS movement and transformative constitutionalists to argue that judges should not be neutral but should be objective?) 

Thus two overriding concerns inform the CLS tradition:  1) critique of formalism and objectivism; 2) the need for the instrumental use of legal practice and legal doctrine to advance leftist aims (loosely social justice).

CLS has played a significant role in illuminating the fissure between rhetoric and reality. Yet the possibilities of transforming the law seem frequently to be diluted by the accusation that it is destructive, even nihilistic. Many of its ideas are still influential in the legal academy, though they have been absorbed, adapted, and refined by other critical theories that have emerged from it.

 

Formalism in Kenyan legal culture

The manifestation of Kenyan legal culture is evident in unspoken cultural commitments to be found in the techniques and methodologies of legal interpretation and adjudication. Despite undoubted progress in recent years, largely under the influence of a small number of particularly influential judges, the prevailing legal culture remains firmly attached to highly traditional methods of legal analysis. It is often highly formalistic, preferring to take refuge in the familiarity of well-known rules and interpretive approaches than to engage with the illuminating debates which have long been emanating from the legal academy challenging received views about the determinacy of legal texts and the contingency of meaning. Statutory interpretation may have moved on from the worst formalistic excesses of the days when the literalist school prevailed to an embrace of ‘purposive’ interpretation. However, even this embrace of purposive interpretation is decidedly positivistic in its assumption that there is in every legislative text an actual meaning with a real existence as a historical fact which can be uncovered with the necessary tools, rather than a putative meaning that needs to be constructed by reference to a range of different legally relevant materials. The attraction of characterising the enterprise in the former way, of course, is to minimize the amount of value-choice involved in performing the judicial function, and thereby to avoid the awkward questions of the legitimacy of judges making value choices for which they cannot readily be called to account. This is the strategic move which Karl Klare accurately labels ‘depoliticising the rule of law’.

Much the same can be said of the prevailing judicial techniques and methodologies in interpreting non-statutory legal rules. Again, the days when courts pretended that they ‘discovered’ the common law, in the way scorned by Lord Reid in his famous essay as long ago as 1972, -‘The Judge as Law Maker’- may be gone, but that powerful judicial instinct to evade responsibility for making law has not. By and large our judges rarely say explicitly that they are ‘developing’ the common law. More often than not a significant common law development will need to be unearthed by scholars from what purports to be merely an application of existing law to a new set of facts. When courts are directly confronted by an invitation to develop the common law explicitly, in a way which could not be concealed, they are likely to consider it to be an illegitimate exercise in judicial law-making.

REFLECTIONS

1.      Are the following views vindication of the formalistic approach to the question of law -making by judges of the Supreme Court of Kenya:

Justices J.B. Ojwang and Mohammed Ibrahim in Hassan Nyanje Charo v Khatib Mwashetani & 3 Others [2014] EKLR Civil Application 23 of 2014 ruled that the use of the remedy of “reading in” by the High Court is inappropriate given the separation of powers concerns. The two judges reasoned thus:

“[65]   On that basis, although this Court was not moved to adjudge the decision of the learned High Court Judge delivered on 23^rd May, 2013, it is duty-bound to signal a direction in respect of the “reading-into,” for Section 76(1) (a) of the Elections Act, on the basis of the persuasive authority from the South African jurisdiction.  The adoption of such an interpretive principle, in our view, was not proper for this case, as the statute in question was one enacted after the promulgation of Kenya’s Constitution in 2010.

[66]   The correct position in law, as it stands, is to be read from both Article 94(1) and Article 159(1) of the Constitution:   the former provides that “[t]he legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament”;  the latter provides that “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and  tribunals established by or under this Constitution”.  The separation of powers does, indeed, serve an objective governance-purpose which we would in this instance, uphold.

[67]   The High Court, with respect, had no power to “amend” Section 76(1) (a) of the Elections Act.  The submission that when the decision in Joho was being delivered by this Court, there was already a newly-amended Section 76(1)(a) of the Elections Act, thanks to a High Court decision, cannot be sustained.”

Similar views were expressed in Njoki Ndung’u’s Concurring Opinion in Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another, Petition No. 29 of 2014. She opined thus: 

“[86] The contradiction of interpretation in this matter can be traced right from the High Court.  The Court of Appeal upheld the decision of the High Court but for varying reasons.  It interpreted “pending matters” to mean matters pending as at the effective date and not after, no matter how long the vetting process took after the effective date.  The Court noted, at page 9 of its Judgment, that:

“the vetting of Judges and Magistrates was part and parcel of the innovative provisions that on the whole, have earned the Constitution of Kenya the description of a transformative document that seeks to effect fundamental and large scale transformation of our political and social institutions through a democratic and legal process.” 

In addition, it reaffirmed that in dealing with the issues before it, it had to incorporate the theory of interpretation set by this Court in numerous matters including Speaker of the Senate & Another v Hon. Attorney- General & Another & 3 Others Supt. Ct. Advisory Opinion Reference No. 2 of 2013; [2013] eKLR, (Re Senate) taking the constitutional context, design, purpose and values and principles into consideration.

[87] These safeguards are meant to ensure that constitutional interpretation neither changes the law nor overlooks certain critical aspects relevant in its enforcement. To proceed otherwise would place the Judges at risk of changing the law; this I believe is what the High Court did when it applied the tool of reading in to Section 18 of the VJMA; an act akin to the exercise of political as opposed to judicial power.

 Justice Mumbi Ngugi at the High Court invoked the doctrine of reading in the words “in relation to conduct, acts or omission of judicial officers allegedly arising on or before the effective date” into Section 18, and by doing so effectively amending the Section.  An action, clearly belonging to the sphere of the Legislature, and not the Judiciary. The Court of Appeal, however, found no error on the part of the High Court in this regard although it was of the view that the outcome of the High Court would have sufficed without a resort to the concept of ‘reading in’. 

[88]   Despite the fact that Courts have the power to grant appropriate reliefs including those under Article 23 of the Constitution, it is imperative in considering the question before us to look at the constitutional text (the provisions of Section 23 to the Sixth Schedule), the statutory context (the VJM Act and the Judicial Service Act, 2011), the intention of the provisions (if discernible), a consideration of broad purposive interpretation guided by our constitutional values and principles, precedent and developed judicial doctrine and considerations of justice, practicality and public policy based on our developing theory of constitutional interpretation.”

2.  In Republic v Ahmad Abolfathi Mohammed & Another, Criminal Application No. 2 of 2018 the Supreme Court held at paragraphs 28 and 29, that pursuant to articles 259 and 20(3) of the Constitution, the court can fill in lacunas in law, does this indicate an anti-formalist stance from the Supreme Court?

3. What is the “inarticulate premise” that underpins the Majority’s judgment in Republic V Ahmad Abolfathi Mohammed & Another [2019] EKLR?

 

 

Closely allied to the traditional judicial reluctance to be candid about the inevitable scope for value-choice in legal interpretation is the narrowness of the prevailing view of the nature of the judicial function, even in judicial review cases in which the judiciary most explicitly sits in judgment over decision-makers who often have a far better democratic pedigree. Fearful of being drawn into debates over deeply contested issues of morality or public policy, the courts frequently take refuge in a series of doctrinal devices designed to insulate them from the criticism that they are merely giving effect to their subjective preferences. The distinctions to which courts frequently resort, between review and appeal, legality and the merits, process and substance, law and ‘policy’, are all examples of such judicial self-protection, as are more substantive ‘doctrines’ such as the high Wednesbury standard of review. There is also explicit acceptance of legitimating fictions, such as the doctrine of ultra vires and the entire doctrinal edifice which rests upon it, which are accepted by many as necessary evils in order to protect the courts against the loss of their legitimacy. Many of these are attempts to give effect to genuine and entirely proper concerns about the limits to the legitimacy of the judicial role, but in the manner of all doctrines they have taken on a life of their own. They often appear disconnected from their original rationale, or unnecessarily blunt instruments which go far further than is necessary to avoid the perceived loss of legitimacy to which a particular argument appears inevitably to lead.

REFLECTIONS

 

Justice Njoki Ndungu  Re the Speaker of the Senate & Another v. Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013 rendered a dissenting opinion starting that: “[257] Political disputes are formally resolved in Parliament, which is the national arbitration forum for resolving such disagreements. Politics is a primary tool for squaring out many issues within society but outside of formal judicial channels. Courts should never become arbiters of political differences as the boundaries between what is law and what is politics must be faithfully observed. The matter before this Court raises issues regarding the process of enactment of the Division of Revenue Bill 2013. Before this Court proceeds to address itself on it, it is my opinion, that it must first answer the fundamental enquiry as to whether the division of revenue in itself, is a political or a judicial question? If the answer is to the latter, then by all means the relevant courts may proceed to deal with the issue. If, however, the former is true, then the Supreme Court or any other court for that matter, should not concern itself with this case any further.”

What is your view on Njoki Ndung’u’s views on the distinction between political disputes and judicial disputes? Is this distinction tenable from a critical legal studies perspective? What is your view on the tenability of the political questions doctrine in legal system that demands transformative adjudication?

 

Further Reading:

1.       Murray Hunt ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’

2.      L. Hawthorne ‘Legal Tradition and the Transformation of Orthodox Contract Theory: The movement from formalism to Realism’

3.      Johannes Nicolaas Horn ‘Interpreting the Interpreters: A Critical Analysis of the Interaction between Formalism and Transformative Adjudication in Namibian Constitutional Jurisprudence 1990-2004’.

 

Transformative constitutionalism and critical legal theory in Kenya

The long-term project of transformative constitutionalism, as Karl Klare first describes it, resounds with Mureinik’s ‘A Bridge to Where? Introducing the Interim Bill of Rights’ notion of the Constitution as a bridge between the authoritarian past, characterised by the public and private abuse of power, towards a ‘culture of justification’ whereby all uses of power must be justified in terms of the law and specifically the supreme Constitution. However, in critical spirit, the bridge should not be thought of as one that can easily be crossed from one side to the other and that a definitive moment can be reached when we can say that the perfect democratic society has arrived, or that there is only one path towards a society worth striving for.

The detailed theory of transformative constitutionalism is best conceptualised by thinking about it as both a ‘political’ and ‘legal-interpretative’ project. Politically, Klare describes a transformative Constitution as being ‘post-liberal’. Post-liberalism involves a step away from classical liberalism that emphasises individual liberty and protection from state interference coupled with constitutionalism. Even though a transformative Constitution recognises the importance of freedom, individual rights, state non-interference and constitutionalism, the liberal elements of the Constitution are limited by the constitutional provisions that promote substantive (redistributive) equality, affirmative state duties, the horizontal application of the Bill of Rights, participatory governance, multiculturalism, and historical self-consciousness.

It is Klare’s contention that the post-liberal politics of the Constitution will be best realised if a post-liberal reading strategy of the Constitution is followed. Traditional legal-liberal interpretation may take on the form of legal positivism and/or legal formalism. Legal positivism takes on many different forms but ultimately involves a strict separation of law and morality (read: politics) with the liberal motivation that the legislature should be shown respect with strong judicial deference. Legal positivism’s separation of law and morality or politics is often practiced through legal formalism that approaches the law in a mathematical fashion where facts plus rules yield self-revealing conclusions (F + R = C).

As admirable as the tradition of legal formalism may appear to be, to our knowledge, no country in the world has appointed computers as judges. The movement of American legal realism once inspired Dugard in ‘Judicial Process, Positivism and Civil Liberty’ to criticise legal liberalism from the perspective that all judges hold certain ‘inarticulate premises’ that unavoidably inform their judgement. Inarticulate premises are factors relating to a judge’s ‘subconscious preferences and prejudices’ that arise from the sociological and psychological conditions of the judge. Building onto the realist movement’s critique of formalism, critical scholars, like Klare, have maintained that the law (the Constitution in particular) is filled with ambiguous phrases and gaps. Following Kennedy in ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’, Klare notes that post-liberal adjudication involves facing a tension between ‘freedom and constraint’.  On the one hand judges are given considerable freedom in deciding how to interpret words and phrases in legal texts while on the other hand they are unavoidably constrained by the actual text. Thus, even though legal texts may be open to interpretation, they cannot mean whatever we want them to. In order to adjudicate any problem, a judge’s discretion in light of the tension between freedom and constraint would indeed be informed by factors extrinsic to the black-letter law. Those factors may be sociological or psychological as the realists propose, or they could even relate to a judge’s politics (‘politics’ in this context should be understood to mean ideology or some type of substantive commitment to what the law should be and do). A post-liberal strategy to legal interpretation, which would inform transformative adjudication, thus recognises two things.

Firstly, it acknowledges that the formalist method of legal analysis forms part of our ‘legal culture’ (in other words the practices that lawyers regard as normal and inescapable) and that it is just as political as more critical strategies to legal interpretation. Even though formalism and positivism may be regarded by many as a mathematical or scientific method for legal analysis free from politics and morality, it is informed by classical-liberal political motivations and ‘blind application’ of the law promotes the politics inherent in the laws themselves. In other words, if a rule does not require a person to act in a given scenario to protect another from harm one might align that rule with a libertarian or laissez-faire conception of political morality. If a rule requires people to look after one another and live in caring symbiosis that rule could be said to fit a political mould closer to socialism. The politics inherent to laws themselves can also refer to the maintenance of hierarchies of power. For example, if a rule were to protect private property without reference being made to redistribution of land formerly disposed by colonialism and authoritarianism, that rule would maintain the power imbalance between wealthy and poor people. If a judge simply applies that rule, it has material political implications. What Klare wishes to point out to lawyers is that the law is inherently political and that we can no longer justify our blind acceptance of the law under the guise of political neutrality.

Secondly, post-liberal transformative adjudication recognises that judges do make law in the process of interpretation. Michelman in ‘Constitutional Authorship, “Solomonic Solutions”, and the Unoriginalist Mode of Constitutional Interpretation’ notes that the ambiguities and gaps in the Constitution tacitly shows that constitutional drafters intended for judges to create law through the process of interpretation.  At first glance this may appear to fly in the face of a constitutional democracy, popular sovereignty, the rule of law and the separation of powers doctrine. However, if the legislature (that drafted the Constitution) tacitly delegated some of its legislative powers to the judiciary then judge-made law is democratic because it reflects the will of the people to vest judges with the authority to make law.  

 

REFLECTIONS

1.      The liberal ideology of law holds that legal texts constrain judges and dispute the assertion by CLS scholars that extra-legal factors influence judges in spite of the provisions of law. Traditional liberal legal theory does believe in the objective reality of the law and the constraining power of legal texts. See for example: Hebert Weschler ‘Towards Neutral Principles of Constitutional Law’.

CLS scholars on the other hand believe that legal texts do not constrain judges. The main argument of the CLS scholars is that, when confronted with a legal dispute, the judge invariably has to interpret the applicable law. According to them, this interpretive function of the court is influenced by many factors outside of the provisions of the law. These factors may include the judge’s view of how the case should come out, the judge’s legal culture, and the political climate, among other things. These extra-legal influences, it is argued, reduce or negate the assumption of the constraining power of legal texts. In fact, Duncan Kennedy, a notable CLS scholar, in ‘Freedom and Constraint in Adjudication: Critical Phenomenology’ illustrates the foregoing argument through his ‘The way I want it to come out’ thesis. Sometimes, in Kennedy’s view, judges already have a preconceived idea of, or have determined, how they want a case to come out. What is also called the ‘inarticulate premise’.

Karl Klare a CLS scholar in ‘Legal Culture and Transformative Constitutionalism’ has aptly described transformative constitutionalism as connoting ‘…an enterprise of inducing large-scale social change through non-violent political processes grounded in law’. He has also argued that a post-liberal reading, a reading that ‘… takes account of and accords interpretive legitimacy to background moral and political values’ is the best legal reading of a transformative Constitution. What this means in essence is that law and politics (extra-legal influences) are inter-twined and cannot be separated as such under a transformative constitution contrary to what liberal-legal ideology will have us believe. Klare, therefore, concludes as follows: “To be transformative and transparent, rights discourse and legal reasoning need to be more candid and self-conscious about the politics of adjudication, indeed, they need to make a virtue of what has traditionally been thought of as a dilemma. Lawyers can best address problems concerning the democratic legitimacy of judicial power by honesty about and critical understanding of the plasticity of legal interpretation and of how interpretive practices are a medium for articulating social visions.”

Pius Langa in ‘Transformative Constitutionalism’ calls for a move away from the culture of authority to a culture of justification that a transformative Constitution requires therefore demands that judges transparently acknowledge the role that politics, values and ideas play in their decision-making. According to Langa: “Under a transformative Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority but by reference to ideas and values. This approach to adjudication requires an acceptance of the politics of law. There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘personal, intellectual, moral or intellectual preconceptions’ on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.”

Dikgang Moseneke in ‘The Fourth Bram Fischer Memorial Lecture: Transformative Adjudication’ notes thus “Even so, personal intellectual and moral pre-conceptions of judges do intrude into their adjudication. Outside the terrain of Constitutional interpretation, judges also make value-laden choices in the routine of adjudication. They are responsible for the social and distributive consequences that result from these choices and should be judged accordingly. If so, adjudicators should perhaps acknowledge their political and moral responsibility in adjudication. They should strive for transparent justification of their judicial choices.”

Marais JA stated in Cape Town Municipality v. Bakkerud 2000 (3) SA 1049 (SCA) at para. [15] that '[tjhere are many areas of the law in which courts have to make policy choices', and Froneman J observed in Ngxuza v. Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609 (E) at 619 that '[the reality is that the outcome of this case is not dictated by precedent or deductive legal reasoning alone: my interpretation of s 38 of the Constitution is inevitably also influenced by my own views of the context in which it is to be interpreted and applied'.

''Judging is a difficult and consuming task and making decisions about other people’s lives is a serious responsibility that engages both intellect and emotion'' Justice Kalpana H. Rawal v Judicial Service Commission & 3 others [2016] eKLR

“ The Constitution did not arise in a vacuum. It is the expression of the wishes and aspirations of the people of Kenya with regard to their governance. In enacting any legislation required under the Constitution therefore, Parliament is deemed to have been conscious of the milieu in which the legislation was to operate, and make due consideration of the social circumstances and the context within which it will be applied. Before embarking on an analysis of the issues raised in this matter, therefore, I will first consider the socio-economic context in which the Elections Act was enacted and within which it is to operate.” Justice Mumbi Ngugi Johnson Muthama v Minister for Justice & Constitutional Affairs & another [2012] eKLR

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These quotes by these jurists point to the fact that since there are already seeds of politics (extra-legal influences) in a transformative constitution, the express recognition of the role and influence of extra-legal factors in adjudication will evidently be a step in the right direction. Do you agree with their views?

Republic v Public Procurement Administrative Review Board & another Ex-Parte Kleen Homes Security Services Limited [2017] eKLR what would be your views on the approach to statutory interpretation of the requirement in the procurement act that judicial review matters in procurement cases be concluded within 45 days? Does Justice Aburilii’s taking into account of the situation at the judicial review division amounts to acknowldgement of extra-legal influence?

Discretionary judicial power has, of course, always existed, but today there clearly is a greater willingness to use it to modernise the law than there had been for a long time, as well as greater openness about its existence and the manner of its use. Many cases and dicta demonstrate a desire on the part of the judiciary to adapt the law to contemporary needs and the prevailing ethos of freedom, equality and the rule of law. Interrogate which particular Kenyan judges have shown this awareness in their post-2010 jurisprudence?  

 

2.      Theunix Roux in ‘Transformative Constitutionalism and the Best Interpretation of the South African Constitution: Distinction Without a Difference?’  critiques Karl Klare’s argument in ‘LC&TC’ that a particular interpretive method, one typically associated with the methodology and political commitments of the Critical Legal Studies movement (“CLS”) in the United States, is required in order to realise the full transformative potential of a Constitution. In the article Roux argues that it is possible to read the Constitution as a transformative constitution, and to engage in the project of transformative constitutionalism, through an interpretive method made famous by Ronald Dworkin. In contrast to the method of CLS, Dworkin’s method is premised on the view that claims about the political morality informing a constitution should, and in practice often are, presented as claims about the objective correctness of a particular interpretation. He argues that transformative constitutionalism does not mean that the best interpretive method is that associated with the CLS.

What is your view in this debate between the Karl Klare and Theunix Roux?

 

3            Consider the arguments in the so called Walter Khobe-Okubasu Munabi-Maurice Oduor debate in ‘the Journal of Law and Ethics’ 2014(1)  pp. 77-107 on the issue of the ‘best approach to interpreting the constitution of Kenya, 2010’ in light of the Supreme Court of Kenya’s Advisory Opinion in Speaker of the Senate and another v Hon. Attorney General & Others, Advisory Opinion No. 2 of 2013 paras 51-53 that asserts that the Constitution has a post-liberal motif.  Given these views on post-liberal nature of the 2010 Constitution, what would be your take on the debate between Karl Klare and Theunix Roux?

 

4            The Supreme Court of Kenya in, In The Matter of the Interim Independent Electoral Commission, Advisory Opinion 2 of 2011 observed that:  [92] ............ The amicus curiae, Professor Yash Pal Ghai, in his profound submissions, lays bare the common law’s hostility to Advisory Opinions: a stand attributable to issues of separation of powers and the independence of the judiciary. But these are not the only reasons. Courts have for a long time used both arguments to disguise their political, ideological and partisan inclinations. Fortunately, in our view, Kenya’s Constitution has taken the first steps in demystifying judicial functions, as well as the administration of justice in Kenya. The Constitution has signalled a movement from the ‘judicial-convent’ setting, to the people’s Courts of Justice...... we are also of the view that, on the issue of the effect   of   an   Advisory   Opinion   on   the   contrast   between   legal   and  political policy, the distinction may not be as sharp as in sometimes assumed;  because, as we have indicated, the Constitution requires its   provisions   to   be   interpreted   in   accordance   with   its   stated guidelines, or its policy. All these aspects of the Constitution are critical,   in   considering   the   effect   of   an   Advisory   Opinion.   We, therefore,   hold   that   an   Advisory   Opinion,   in   this   context,   is   a “decision” of the Court, within the terms of Article 163(7),   and is thus binding on those who bring the issue before the Court, and upon lower Courts, in the same way as other decisions.”

Does this amount to the Supreme Court admitting that the CLS argument on the politics of adjudication is valid?

 

 

5. Chief Justice Mutunga has argued that Kenya’s jurisprudence should be based on social justice. To the extent that social justice is at the core of the “left” ideology, could this be argued to be an embrace of the CLS project? He notes thus in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Petition 4 of 2012:

“[89] In Paragraph 8 of my dissenting Advisory Opinion in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate Advisory Opinion of the Supreme Court (Reference No 2 of 2012), I endorsed the approach to the interpretation set out in the Constitution itself, and in the provisions of the Supreme Court Act. There is no doubt that the Constitution is a radical document, that looks to a future that is very different from our past, in its values and practices. It seeks to make a fundamental change from the 68 years of colonialism, and 50 years of independence. In their wisdom, the Kenyan people decreed that past to reflect a status quo that was unacceptable and unsustainable, through: provisions on the democratization and decentralization of the Executive; devolution; the strengthening of institutions; the creation of institutions that provide democratic checks and balances; decreeing values in the public service; giving ultimate authority to the people of Kenya which they delegate to institutions that must serve them, and not enslave them; prioritizing integrity in public leadership; a modern Bill of Rights that provides for economic, social and cultural rights to reinforce the political and civil rights, giving the whole gamut of human rights the power to radically mitigate the status quo and signal the creation of a human-rights State in Kenya; mitigating the status quo in land that has been the country’s Achilles heel in its economic and democratic development. These instances, among others, reflect the will and deep commitment of Kenyans, reflected in fundamental and radical changes, through the implementation of the Constitution.

[90] It is also the will of the Kenyan people that they rely on the Judiciary to protect and develop the Constitution. Article 159 of the Constitution deals with the principles governing the exercise of judicial power, identifying the source of that power in the people of Kenya. The constitutional provisions on the Judiciary (its independence, its integrity, its intellectual leadership and the distinction of its judges and its resources) make this abundantly clear. Therefore, the early years of the decisions of the Courts, and in particular those of the Supreme Court, will be seminal and critical for the future development and impact of the Constitution.

[91] Although I had categorized the jurisprudence envisaged by the Constitution as robust (rich), patriotic, indigenous and progressive (all these attributes derived from the Constitution itself, and from Section 3 of the Supreme Court Act), perceptions of this decolonizing jurisprudence can be summed up as Social Justice Jurisprudence, or Jurisprudence of Social Justice. Such jurisprudence in all our Courts, and in particular at the Supreme Court, as the apex court in the Republic of Kenya, will ensure that the fundamental and core pillars of our progressive Constitution shall be permanent, irreversible, irrevocable and indestructible –as should also be our democracy.” To help in your reflections read: Walter Khobe ‘Chief Justice Mutunga and Social Justice as the Grundnorm of Kenya’s Constitutional Order’ (2015) 2 The Platform pp.9-11.   

 

6. Read the Supreme Court Judgement in Frederick Otieno Outa v Jared Odoyo Okello & 4 Others [2014] Petition 10 of 2014 and contrast the approach to interpretation of the term “public officer” between Justice Njoki Ndung’u and the other judges of the Supreme Court. Could this opinion be argued to validate the assertions by the CLS movement of indeterminancy of legal materials?

 

7. Read the Supreme Court judgment in Evans Odhiambo Kidero & Others v Ferdinand Ndungu Waititu & Others, Petitions No. 18 & 20 of 2014 and similarly contrast the approach between Justice Njoki Ndung’u and the majority. In view of the CLS movement’s assertion that law is not neutral (anti-formalism) can it be argued that a judge can shape the meaning of law to conform to a particular philosophy of and to reach a particular end and thus judges are not constrained by legal text?

 

8.Think over these views, which jurist do you agree with?

"The poor need Justice; others need the Law."  Professor Dani Nabudere

  "The rich don't need the law, they've got wealth and power. It's the poor who need the law." Albie Sachs former judge of the Constitutional Court of South Africa 

 

“Inevitably, given its class character, the law of interpretation that the judiciary adopts tends to favour the haves, not the have-nots. The social structure and the fundamental character of the instruments of the Executive, the Legislature and the Judiciary have a political character.” V.R. Krishna Iyer former judge of the Supreme Court of India

 

9. Read Joseph Nyasani ‘The Ethical and Ideological Basis of a Constitution’ and Henry Mwanzi ‘Constitution Making: A Normative or Sociological Approach’  and reflect on whether the 2010 Constitution embodies any particular ideology or normative orientation

 

Feminist legal theory

Traditional jurisprudence conspicuously overlooked the position of women. Feminist legal theory has been remarkably successful in remedying this neglect. It has had a considerable impact on the law, for feminist jurisprudence extends to comprehensive analysis of the many inequalities to be found in the criminal law, especially rape and domestic violence, family law, contract, tort, property, and other branches of the substantive law, including aspects of public law.

In recent years, for example, both English and American courts have abandoned the common law principle that a husband cannot be prosecuted for raping his wife, despite her refusal to consent to sexual intercourse. The wife was deemed by the fact of marriage to have consented. While the judges make no explicit reference to feminist jurisprudence, its influence may well have played a part in these decisions.

Not surprisingly, in view of its unease about the injustices experienced by women, feminist writing is often overtly polemical. ‘The personal is political’ was the compelling slogan adopted by early feminists. It represented in part a denunciation of the professed radicalism of social movements that failed to address the routine subjugation of women at home or at work.

Nor, of course, do feminists speak with a single voice. There are at least two major strands of legal feminism. 

Liberal feminism

Liberalism prizes individual rights, both civil and political. Liberals assert the need for a large realm of personal freedom, including freedom of speech, conscience, association, and sexuality, immune to state regulation, save to protect others from harm. Liberal feminism perceives individuals as autonomous, rights-bearing agents, and stresses the values of equality, rationality, and autonomy. Since men and women are equally rational, it is argued, they ought to have the same opportunities to exercise rational choices. (This emphasis on equality, as we shall see, is stigmatized by radical feminists as mistaken, because asserting women’s similarity to men assimilates women into the male domain, thereby making women into men.)

The majority of liberal feminists, while conceding that the legal and political system is patriarchal, refuse to accept the blanket assault that is a significant, though not universal, item on the radical agenda. The liberal battleground is the existing institutional framework of discrimination, particularly in the domain of employment.

Liberal feminism accentuates equality, while radical feminism is concerned with difference. Among the most critical anxieties of liberal feminists is the border between the private and the public domain. This is largely because women tend to be excluded from the public sphere where political equality is realized. Likewise, the private domain of the home and office is the site of the subordination and exploitation of women. Crimes of domestic violence normally occur within the home into which the law is often reluctant to intrude. Liberalism may itself therefore be implicated in the subjugation of women, according to radical feminists.

Liberal feminism, which focuses mainly on equal opportunities and denies stereotypical distinctions between men and women, can inspire several interpretive tools, all in the service of formal equal opportunities. First, it insists on reading gender neutral texts as generally applying to both men and women (in contrast to the historical precedents mentioned earlier, where neutral drafting was injected with discriminatory interpretations). Second, it aspires to give narrow meanings to provisions that do contain distinctions between men and women.

The liberal feminist approach has a particularly important role when the law recognizes the power of decision makers to revisit and reform traditional rules. An example can be found in the South African case of Shilubana v. Nwamitwa 2008 (9) BCLR 914 (CC) (S. Afr.) which discussed the possibility of reinterpreting customary law in a manner that recognizes the rights of women to inherit positions of tribal chiefs. The court answered this question in the affirmative, holding that customary law, as recognized by the Constitution, could be interpreted in a way that promotes gender equality.

Similarly in Rono v Rono & Another, Civil Appeal No 66 of 2002 the Court of Appeal of Kenya held that taking the gender of beneficiaries into consideration in the distribution of a deceased’s estate was discriminatory and contrary to the law. This appellate decision dealt with the partition of an estate, consisting primarily of 192 acres of land. The judge in at the High Court, using her discretion, gave each of the daughters five acres and each of the sons 30 acres. The deceased had two wives. One wife was given 50 acres, as she had no sons, and the other wife was given 20 acres, as she had three sons. On appeal, the Court of Appeal judges considered a variety of international treaties Kenya had signed, as well as the Kenyan Constitution and domestic legislation to determine a proper partition. While the appellate court affirmed the role of discretion in estate partition, the appellate court stated this discretion had to have a factual basis. The court overruled the gendered basis on which the trial court had decided, and awarded each wife 30 acres and each child 14 acres.

In Re Estate of Lerionka Ole Ntutu (Deceased) [2008]eKLR, This case was filed by the daughters of a deceased Maasai man with multiple wives, sons, and daughters. The proposed distribution, following Maasai custom, excluded the daughters from inheriting. Under the Kenyan Succession Act, daughters and sons should be treated equally. However, the Act also has special provisions that permit certain geographical areas to be excluded from its jurisdiction, allowing for partition to proceed instead according to customary law. Justice Kalpana Rawal noted international law and the non-discrimination provision of the Kenyan Constitution. Customary law can only be enforced when it is “not repugnant to justice and morality or inconsistent with any written law.” The judge found such sex discrimination to be unconstitutional and ruled that the daughters should inherit.

In Attorney General v. Unity Dow1994 (6) BCLR, the respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it essentially punishes a citizen female for marrying a non-citizen male.  

 

 

Radical feminism

Leading radical feminist Catharine MacKinnon contests the idea that, since men have defined women as different, women can ever achieve equality. Given that men dominate women, she argues that the question is ultimately one of power. The law is effectively a masculine edifice that cannot be altered merely by admitting women through its doors or including female values within its rules or procedures. Nor, the radical position contends, is reforming the law likely to assist since, in view of the masculinity of law, it will simply produce male oriented results and reproduce male dominated relations. In the words of MacKinnon: ‘Abstract rights . . . authorize the male experience of the world.’

Radical feminism rejects what it regards as the liberal illusion of the neutrality of the law. It seeks to expose the reality behind the mask so that women will recognize the need to change the patriarchal system which subjugates them.

Carol Smart denies that the law can produce real equality. Ann Scales is eloquent in her dismissal of change through the form of law: “We should be especially wary when we hear lawyers, addicted to cognitive objectivity as they are, assert that women’s voices have a place in the existing system. . . . The injustice of sexism is not irrationality; it is domination. Law must focus on the latter, and that focus cannot be achieved through a formal lens.”

Christine Littleton advocates ‘equality as acceptance’, which emphasizes the consequences rather than the sources of difference, an approach that has obvious legal consequences in respect of equal pay and conditions of work.

Radical feminism seeks to expose the domination of women by ‘asking the woman question’ to expose the gender implications of rules and practices that might otherwise appear to be impartial or neutral.

Radical feminism focuses on the liberation of women from their social subordination to men and from their subjection to violence. It endorses interpretive choices that lead to more effective resistance to such subordination and violence. For example, viewing sexual harassment as a form of discrimination and pornography as an action rather than speech are two important interpretative choices in the service of resisting subordination. More examples can be drawn from the case law on rape, specifically where “consent” has been interpreted to exclude situations with silent victims or victims who were coerced to agree to sex under the threat of authority.  

REFLECTIONS:

1.      Read the High Court, Court of Appeal and the Supreme Court Opinions on gender issues; have the judges adopted critical feminist readings of the Constitution and other laws?

 

2.      Read the following texts: Walter Khobe ‘Chimera of constitutionally entrenched gender quotas in Kenya’; Walter Khobe ‘The quest for a more perfect democracy: Is mixed member proportional representation the answer?’; Patricia Kameri Mbote ‘Fallacies of Equality and Inequality: Multiple Exclusions in Law and Legal Discourses’; Ruth Aura- Odhiambo ‘Judicial responses to women’s rights violations in Kenya in the post-2007 context’; and Winifred Kamau ‘Women’s representation in elective and appointive offices in Kenya: Towards realisation of the two-thirds gender principle’. Interrogate the views emerging from these scholars on the jurisprudence from Kenyan courts and the promise for gender equality in Kenya.  Do you agree with the views expressed in these scholarly works?

 

 

3.      The judgment of O’Regan and Sachs JJ in Jordan v S  s2002 6 SA 642; 2002 11 BCLR 1117 (CC) reveals sensitivity to power relations that are so deeply embedded in our social structure that they often appear to be the product of individual choice or the neutral working of the market. Unlike the majority, who found that a statute criminalising the conduct of the prostitute but not that of the client was gender neutral and that the stigma suffered by prostitutes was the result of their own choice, O’Regan and Sachs JJ situated their analysis within the context of gender inequality, the feminisation of poverty, the dire financial need of many of those who turn to prostitution, and sexual stereotypes and double standards. Conscious of the ways in which apparently neutral laws intersect with material deprivation and cultural prejudice to perpetuate historical patterns of inequality, they found that the statute constituted unfair discrimination.

Do you agree with O’Regan and Sachs JJ? 

 

4.      Consider the judicial decisions of Justice Mumbi Ngugi in cases of equality and discrimination of women, especially L.N.W Vs Attorney General, Registrar of Births and Deaths & Kenya National Commission. On Human Rights (KNCHR), Petition No 484 of 2014, how would you characterise her jurisprudential orientation?  

 

5.      Read the decision by the Supreme Court of India in Joseph Shine v Union of India, Writ Petition (Criminal) No. 194 of 2017 striking down criminalization of adultery as unconstitutional. Critique the sheds of feminist leanings of Justices Dipak Misra –CJI, Dhananjaya Chandrachud, and Indu Malhotra as can bel gleaned from their respective opinions?

 

6.      Is it necessary to have women judges in the bench to bring in a gender perspective/insight in adjudication? Reflect on the decision by the Supreme Court of the United Kingdom in Radmacher (formerly Granatino) v Granatino [2010] UKHL 42  the "prenuptial agreement case". The case was about whether courts should give effect to prenuptial agreements. Such agreements oust the usual principles of fairness and limit the rights of the parties at the time of divorce. The twist in this case was that it was the ex-wife, not the husband, who was trying to enforce the agreement. But, more commonly, it is women who are the losers.  Lady Hale, the only woman judge in the bench dissented from the majority.  It was not merely that she differed from the majority view, and questioned if and when there should be a presumption in favour of honouring such agreements. She went further and recognised the symbolic nature of her position. "The object of a [prenuptial] agreement" said Lady Hale, "is to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled." After citing an article from the Yale Journal of Law and Feminism, Lady Hale continued: "Would any self-respecting young woman sign up to an agreement which assumed that she would be the only one who might otherwise have a claim, thus placing no limit on the claims that might be made against her and then limited her claim to a pre-determined sum for each year of marriage regardless of the circumstances, as if her wifely services were being bought by the year? Yet that is what these precedents do." She went on to explain how her dissent went to the heart of why diversity in the judiciary is so important, not least for cases being decided at the highest level: "In short, there is a gender dimension to the issue which some may think ill-suited to a decision by a court consisting of eight men and one woman. It is for that reason I have chosen to write a separate judgment...".

 

7.     Read Ebenezer Durojaye and Olubayo Oluduro ‘The African Commission on Human and People’s Rights and the woman question’ 2016, Volume 24, Issue 3, Feminist Legal Studies pp 315–336; and determine what is ‘the woman question’ in the African context? Have Kenyan courts asked ‘the woman question’ in gender disputes? 

 

Critical race theory (CRT)

CRT originated in Madison, Wisconsin, in 1989 as a reaction against what it saw as the deconstructive excesses of CLS. Nevertheless, it is no less sceptical of Enlightenment ideas such as ‘justice’, ‘truth’, and ‘reason’. Its mainspring, however, is the need to expose the law’s pervasive racism; privileged white, middle-class academics, in its view, cannot fully uncover its nature and extent. Those who have themselves suffered the indignity and injustice of discrimination are the authentic voices of marginalized racial minorities. The law’s formal constructs reflect, it is argued, the reality of a privileged, elite, male, white majority. It is this culture, way of life, attitude, and normative behaviour that combine to form the prevailing ‘neutrality’ of the law. A racial minority is condemned to the margins of legal existence.

 

CRT diverges most radically from full-blown postmodernist accounts in respect of the recognition by at least some of its members of the importance of conventional ‘rights talk’ in pursuit of equality and freedom. Its analysis of society and law therefore seems, in some cases, to be a partial one. This retreat from the postmodernist antagonism towards rights signifies an apparent readiness to embrace the ideals of liberty, equality, and justice. Several CRT adherents, however, evince profound misgivings about liberalism and the formal equality it aspires to protect, and a distaste for individual rights and other contents of the liberal package.

Theorists from the critical race theory challenge expressions of racism in North-American institutions, constitutionalism among others. Critical race theory is not only focused on race, but rather explores the reality of all marginalized groups. The critical race theory movement has roots in radical feminism and critical legal studies and is linked to queer-crit interest groups. Critical race theorists also write on the deep effects of poverty on portions of the populations, and the link between race, poverty and socio-economic issues. A critical race theory scholar has therefore stressed that every new law should be assessed to ensure that it is meant to relieve the distress of the poorest sections of the population, and where it is found that it does not or even worst that it enhances it, the law should be rejected. All of the critical race theory movements share common ground in challenging the existing hierarchy in public institutions, hierarchy from which members of marginalized groups suffer. 

Critical race theory criticizes the standard of formal equality. Rules that are made to be applied to everyone in the same way do not affect everyone in the same way. Furthermore, racism is lived on a daily basis by persons of colour and discrimination is found in the smallest of actions. Providing that laws must be subject to verification according to norms of non-discrimination, even a constitutional one, can change but the most blatant discriminations; it can do little against mentalities. Some critical race theorists advocate for affirmative actions to improve the status of non-whites in society, while others will rather seek a change in mentalities that they believe will eventually lead to more equality. Critical race theory aims to shed light on the reality of people of color, and how public institutions interact with them, law being an important one of those public institutions.

A Judgment that has invoked Critical Race Theory is the June 2016, Dissenting Opinion by Justice Sonia Sotomayor in Utah v Strieff, she writes about what it means to be policed in America when you are “black or brown.” In the final section of her dissent in Utah v. Strieff—a Fourth Amendment case that probed whether the existence of an outstanding arrest warrant could serve as retroactive justification for an otherwise illegal police stop—Sotomayor described how it feels to be stopped, searched, and frightened if you are not white. “For generations, black and brown parents have given their children ‘the talk,’ ” she wrote, “instructing them to never run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react."

With citations from W.E.B. Du Bois’s The Souls of Black Folk, James Baldwin’s The Fire Next Time, Michelle Alexander’s The New Jim Crow, and Ta-Nehisi Coates’s Between the World and Me, Sotomayor warned her colleagues that seemingly trivial police encounters may prove to be life-and-death experiences for people of color and argued that the courts cannot continue to pretend every brush with a cop is benign. Her conclusion, a reminder to her colleagues of the risks of being stopped when black, she aptly notes:

“We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

 

An offshoot of CRT pursues the postcolonial thesis that the dismantling of colonial governments has failed to end the racial divisions and assumptions of these societies. 

 

 

Preparation for next (topic) class

Read Achille Mbembe ‘Decolonizing Knowledge and the Question of the Archive’

DECOLONIALITY AND POSTCOLONIAL THEORY

A stubborn etymological literalness would indicate that colonies are what gets decolonized: that is, that decolonization is fundamentally a matter of politics (in the most conventional sense), state sovereignty, and the transformation of colonies into independent nation-states. However, Ngũgĩ wa Thiong'o captured other aspects of decolonization in the title of his 1986 collection of essays, ‘Decolonising the Mind: The Politics of Language in African Literature’. The terrain of colonial conquest was not merely geographical, but psychic and cultural as well; this was the truth that the theorist of anti-colonial national liberation Frantz Fanon expressed when he wrote in ‘The Wretched of the Earth’ thus: "Colonialism is not satisfied merely with holding a people in its grip and emptying the native's brain of all form and content. By a kind of perverted logic, it turns to the past of the oppressed people, and distorts, disfigures, and destroys it. This work of devaluing pre-colonial history takes on a dialectical significance today." 

Thus beyond regaining geographical autonomy, decolonization also involves recuperating history, regaining dignity, and decolonizing the mind – tasks that mid-twentieth century anti-colonial liberation theorists like Fanon, Aimé Césaire, and Amílcar Cabral saw as inseparable from the capture of state institutions and the national economy: "if imperialist domination has the vital need to practice cultural oppression, national liberation is necessarily an act of culture," Cabral wrote.

In its most radical and fully realized form, decolonization in anti-colonial liberation praxis would mean a total transformation, not unlike the end of capitalism for Karl Marx: an entry into history and humanity. Decolonization in this sense is "tabula rasa," "not only the disappearance of colonialism but also the disappearance of the colonized man," "a whole material and moral universe …breaking up" observed Fanon.

For Ngugi decolonization is part of a larger search - the search for what he calls “a liberating perspective”. This is a perspective which can allow us “to see ourselves clearly in relationship to ourselves and to other selves in the universe”. We are called upon to see ourselves clearly, not as an act of secession from the rest of the humanity, but in relation to ourselves and to other selves with whom we share the universe.  He observes that: “What should we do with the inherited colonial education system and the consciousness it necessarily inculcated in the African mind? What directions should an education system take in an Africa wishing to break with neo-colonialism? How does it want the “New Africans” to view themselves and their universe and from what base, Afro-centric or Eurocentric? What then are the materials they should be exposed to, and in what order and perspective? Who should be interpreting that material to them, an African or non-African? If African, what kind of African? One who has internalized the colonial world outlook or one attempting to break free from the inherited slave consciousness?”

In Ngugi’s terms, “decolonization” is a project of “re-centering”. It is about rejecting the assumption that the modern West is the central root of Africa’s consciousness and cultural heritage. It is about rejecting the notion that Africa is merely an extension of the West. Decolonizing (à la Ngugi) is not about closing the door to European or other traditions. It is about defining clearly what the centre is. And for Ngugi, Africa has to be placed at the centre. He notes: “Education is a means of knowledge about ourselves. .. After we have examined ourselves, we radiate outwards and discover peoples and worlds around us. With Africa at the centre of things, not existing as an appendix or a satellite of other countries and literatures, things must be seen from the African perspective”. He continues: “All other things are to be considered in their relevance to our situation and their contribution towards understanding ourselves. In suggesting this we are not rejecting other streams, especially the western stream. We are only clearly mapping out the directions and perspectives the study of culture and literature will inevitably take in an African university”.

Concerned to reveal the subtle harms of what would today be called the soft power (a` la Joseph Nye), civilizational aspects of colonialism, postcolonial studies as it emerged from the late 1970s onward might be seen as having undertaken the work of decolonizing the disciplines. The publication of Edward W. Said's Orientalism in 1978 is one commonly-cited moment of origin for what was then known as colonial discourse analysis, and later as postcolonial theory.  It also included subaltern studies that is also interested in studying postcolonial societies though with a biased focus on South Asia.

One important aspect of the mid-twentieth struggle to decolonize law was the effort to establish in international law the principle of resource sovereignty: in order to be meaningful, postcolonial sovereignty had to include the right to dispose freely over natural resources. In ‘Imperialism, Sovereignty, and the Making of International Law’, Anthony Anghie shows how newly independent United Nations member states in the 1950s and 1960s articulated the principle of Permanent Sovereignty over Natural Resources (PSNR), which held that the resources of a territory belonged to its inhabitants before, during, and after colonialism, and that colonial powers had often expropriated these resources without meaningful consent from the colonized. Although the effort to codify resource sovereignty in international law met with some success in the inclusion of PSNR in human rights instruments like the International Convention on Civil and Political Rights and the International Convention on Economic, Social, and Cultural Rights (both 1966, came into force 1976), in effect the former colonial powers were able to avoid paying compensation or reparation for their ill-gotten gains, as part of the containment of decolonization's most radical possibilities.

Thus postcolonial theory with respect to law recognises that colonization was not only geographical and political but also epistemological and even ontological: colonialism brought into contact and collision radically different ways of knowing and being. As with other aspects of European civilization, some colonized peoples adopted and internalized colonizers' legal ideas and practices thus the need to reclaim the African legal archive.  

The relationship between postcolonial theory and law aims at assessing the role of law during colonialism, as well as its lasting effects on colonised societies. It is here that postcolonial theory shares a common ground with critical race theory  and other movements of critical legal studies: they are deeply engaged in criticism of liberal positivism, which has dominated legal discourse since the 20th century, and is identified as the “western legal project”.  Liberal positivism is characterised by claimed “legal neutrality, formal equality and legal objectivity”. In attempting to sustain these claims, liberal positivism excludes any other legal discourse than its own as inferior, while postcolonial theorists suggest that the dominance of the discourse may be due to nothing more than imposition through force. Underlying the claims to neutrality are the contested concepts of reason and objectivity; which are challenged by postcolonial theorists. Postcolonial as well as critical race theorists, in challenging liberal positivism, advocate for a contextual analysis of the law. However, postcolonial theorists have no doubt that this belief that the western legal system is superior to others is still deeply entrenched today.

Law is a powerful vehicle for transmitting cultural values; and western laws are carriers of liberalism. Laws in colonialism have played a strong role in shaping the subjects of both colonisers and colonised. Through the imposition of their laws, Europeans have imposed their rule and values. We see it in the governmental institutions in Kenya and in the British legal education received by important members of the intellectual elite, which most likely planted seeds in the process of imagining the social revolution. However, Upendra Baxi, in "Postcolonial Legality" explains that if postcolonial constitutionalism does carry its load of colonial heritage, postcolonial constitutions also represent a break with colonialism and do offer emancipatory opportunities to populations. Baxi specifically notes the Public Interest Litigation (PIL)/Social Action Litigation (SAL) system and judicial activism as important achievements of postcolonial constitutionalism.

 

 

REFLECTIONS:

1.       In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Petition 4 of 2012 Chief Justice Mutunga talks of a decolonizing jurisprudence thus: “[91] Although I had categorized the jurisprudence envisaged by the Constitution as robust (rich), patriotic, indigenous and progressive (all these attributes derived from the Constitution itself, and from Section 3 of the Supreme Court Act), perceptions of this decolonizing jurisprudence can be summed up as Social Justice Jurisprudence, or Jurisprudence of Social Justice. Such jurisprudence in all our Courts, and in particular at the Supreme Court, as the apex court in the Republic of Kenya, will ensure that the fundamental and core pillars of our progressive Constitution shall be permanent, irreversible, irrevocable and indestructible –as should also be our democracy.”  In your perception, is decolonization a worthy agenda for the Kenyan judiciary in developing transformative jurisprudence?

2.      The ‘Third World Approaches to Law’-TWAIL is a movement by scholars from the global south to interrogate concepts of international law from a global south perspective. Critique to what extent this movement has succeeded in liberating international law from the hegemony of western thought? Can this movement be extended to other branches of law?  Is it possible to speak of a distinctive genre of global south constitutionalism?

3.      The continuing dominance of a North-bound, Anglo-European epistemological paradigm and the corresponding subordination and diminution of African/Black ways of knowing and be-ing reflects the continuation and persistence of a colonial structure of power. In other words, the dominant ways of knowing and thinking in Kenya remain conceptually “Western” in orientation. This reminds us of Steve Biko’s oft quoted statement that “the most potent weapon in the hands of the oppressor is the mind of the oppressed”. As such, epistemological liberation is central to decolonisation and thus also constitutes a part of the broader problem of historical justice. It also raises questions about the intellectual and political responsibility of the Kenyan scholar or critic to prioritise indigenous African thought in their analyses and reflections on current socio-political, economic and philosophical problems. Steve Biko’s elaboration of Black Consciousness entailed the notion of psychological and cultural liberation. Can this be extended to also encompass epistemological liberation? What is the call to the Kenyan legal community with respect to legal education and legal reasoning in Achille Mbembe’s ‘Decolonizing Knowledge and the Question of the Archive’? 

4.      “History teaches us that, in certain circumstances, it is easy for the foreigner to impose his domination on a people. But it also teaches us that, whatever the material aspect of this domination, it can be maintained only by the permanent, organised repression of the cultural life of the people concerned..........In fact to take up arms to dominate a people is, above all, to take up arms to destroy or at least to neutralize, to paralyze, its cultural life. For with a strong indigenous cultural life, foreign domination cannot be sure of its own perpetuation.” Amilcar Cabral ‘National Liberation and Culture’ in Unity and Struggle: Speeches and Writings (1979).

“The advent of Western culture has changed our outlook almost drastically. No more could we run our own affairs. We required to fit in as people tolerated with great restraint in a western type society. We were tolerated simply because our cheap labour is needed. Hence we are judged in terms of standards we are not responsible for. Whenever colonisation sets in with its dominant culture it devours the native culture and leaves behind a bastardised culture that can only thrive at the rate and pace allowed it by the dominant culture. This is what has happened to the African culture.” Steve Biko I Write What I Like (2004)

“The Unilaterally decreed normative value of certain cultures deserves our careful attention.” Frantz Fanon ‘Racism and Culture’ in Toward the African Revolution (1964)

Taking this excepts into account, reflect on law in Kenya and whether the concerns by Cabral, Biko and Fanon have been taken into account in thinking about and on law in Kenya

5.      Read Willy Mutunga 'Dressing and Addressing the Kenyan Judiciary: Reflecting on the History and Politics of Judicial Attire and Address" 20 Buffalo Human Rights Law Review [2013-2014] pp. 125-157 and Walter Khobe ‘Chief Justice David Maraga Embraces Colonial Relic and Symbol of Judicial Impunity’ (2016) 24 The Platform pp. 24-26 then reflect on the question of the place of the colonial relic of lawyers and judges’ wigs and gown as court attire and the question of the need to decolonise court symbolisms. 

 

AFRICAN LEGAL THEORY

Genuine decolonization must take into account the difficult process of decolonizing the African mind. This involves awakening the African self-consciousness as it is exhibited in African culture. This decolonizing process is an essential element of African jurisprudence.  It is self-affirmation of the African people. It is precisely such an affirmation that colonialism sought to erase or deny, and it is precisely what anti-colonial and decolonizing processes seek to reaffirm and protect. Also, what must be taken into account is that self-affirmation does not mean the affirmation of an isolated self.

African legal theory could be considered ‘particular’ because it holds some specific characteristics that make it different from ‘general or western’ legal theory. Here ‘particular’ meaning specific, characteristic, culturally determined. It is ‘African’ legal theory and not another kind of legal theory because it springs from the African cultural background, from African philosophical premises, it belongs to a different way of understanding and seeing law, life, humanity. It has its own schemes.

For the African, a philosophy of existence can be summed up as: ‘I am because we are, and because we are therefore I am’.  For example, Mogoeng CJ in Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19 (21 July 2016) states thus: “All peace and reconciliation-loving South Africans whose world-view is inspired by our constitutional vision must embrace the African philosophy of “ubuntu”.  “Motho ke motho ka batho ba bangwe” or “umuntu ngumuntu ngabantu” (literally translated it means that a person is a person because of others).  The African world-outlook that one only becomes complete when others are appreciated, accommodated and respected, must also enjoy prominence in our approach and attitudes to all matters of importance in this country, including name-changing.  White South Africans must enjoy a sense of belonging.  But unlike before, that cannot and should never again be allowed to override all other people’s interests.  South Africa no longer “belongs” to white people only.  It belongs to all of us who live in it, united in our diversity.  Any indirect or even inadvertent display of an attitude of racial intolerance, racial marginalisation and insensitivity, by white or black people, must be resoundingly rejected by all South Africans in line with the Preamble and our values, if our constitutional aspirations are to be realised.”

A comparison of African and western social organisation clearly reveals the cohesiveness of African society and the importance of kinship to the African lifestyle. Whereas westerners are able to carry out family life in the form of the nuclear family and often in isolation from other kin, Africans do not have the concept of a nuclear family and operate within a broader arena of the extended family. In some African communities the words “Aunt’ “cousin” did not exist because these were mothers, brothers and sisters. Another important difference between African and western world views is that of the ownership of land. While private ownership of land is considered an inalienable right within western society, land in Africa is communally owned. Through the communal system one is guaranteed social security and at least minimum economic rights.  

Thus within the organisation of African social life one can discern various organising principles. As a people, Africans emphasise groupness, sameness, and commonality. Rather than the survival of the fittest and control over nature, the African worldview is tempered with the general guiding principles of the survival of the entire community and a sense of co-operation, interdependence, and collective responsibility.

African jurist Taslim Elias in ‘The Nature of African Customary Law’ asserted in this respect that ‘anyone who cares to look into the actual social relations between the individuals who make up the group –whether this is family, clan or tribe- will realise soon enough that disputes do take place in all manner of situations.’ The point is that problems revolving around individual disagreements and preferences are present but these disputes are resolved not on the basis of a worldview that posits individual autonomy. The African worldview places the individual within a continuum of the dead, the living, and the yet unborn. It is a worldview of group solidarity and collective responsibility. In effect, in the same way that people in other cultures are brought up to assert their independence from their community, the average African’s worldview is one that places the individual within his community. This worldview is for all intents and purposes as valid as the European theories of individualism and the social contract.

The questions that these observations lead to are whether Africans need to ‘modernise’ to become individuals in the western sense? and whether the modern liberal state with its western traditions should be allowed to break up African traditional systems?  

REFLECTIONS:

1            John Murungi ‘The Question of an African Jurisprudence: Some Hermeneutical Reflections’ in Kwasi Wiredu (ed.) A Companion to African Philosophy page 527 asserts thus: “The protection of communal rights is not antithetical to the protection of the human rights of the individual. Contrary to what appears to be the case in modern Euro-Western jurisprudence, communal rights are human rights, just like individual rights. Communal rights do not have priority over individual rights, and, conversely, individual rights do not have priority over communal rights. They do not exist in a hierarchy of importance. Moreover, they are, as noted above, not mutually exclusive. They implicate each other. They are both essential not only for human dignity but also for the very meaning of being human.” Can these observations answer some of the criticisms that have been made against the burial jurisprudence on the S.M. Otieno Case?

Ubuntu as the African Vision of the Human Being

A leading concept of the African tradition is the concept of ubuntu which holds another understanding of what it means to be human. In this vision the human being, the Muntu, finds its humanism not in relation to a kind of abstract humanity within its nature by the simple fact of being born human and as such to be respected unconditionally. Of course the distinctive dignity of being human is recognizable by its being a human being and not some other being. But the intuition of the African thought ‘a person is a person through other persons’ captures the specific dignity of this humanity in making evident where it is to be found. The condition of possibility for being human, for humanity, and for humanism is in the relation to the other. The other person makes possible oneself humanity. It is perhaps best illustrated in the following remarks in the judgment of the Court of Appeal of the Republic of Tanzania in DPP v Pete [1991] LRC (Const) 553 at 566b-d, per Nyalali CJ, Makame and Ramadhani JJA thus "The second important principle or characteristic to be borne in mind when interpreting our Constitution is a corollary of the reality of co-existence of the individual and society, and also the reality of co-existence of rights and duties of the individual on the one hand, and the collective of communitarian rights and duties of society on the other. In effect this co-existence means that the rights and duties of the individual are limited by the rights and duties of society, and vice versa."

This configuration brings to light the essence of what makes a human being to be human, translating into consciousness the nature of man, the purpose of law and the meaning of life. To signify the interdependence to which human beings in their existence are bond together in their human condition tells the truth and does not diminish their freedom. Humanity is given thanks to the existence of the other person and in relation to the other person. This is the essential feature. And not that of being a ‘rational animal’ or perhaps other definitions. This may also be so, but the accent is elsewhere. What makes a human being human is given from others, is its relation to others. Being a person is not something exclusively within the atomistic individual detached from the group, an abstract idea of subject. Meaning that fundamentally to be a human being is not separable from being the output of the community and in relation to it. See Henry Odera Oruka ‘African Sage Philosophy’. 

In South Africa, the courts have held that ubuntu could serve as a basis from which interpretation of the Bill of Rights could proceed. In S v Makwanyane 1995 3 SA 391 (CC)  Mokgro J stated thus: “In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an all-inclusive value system, or common values in South Africa, can form a basis upon which to develop a South African human rights jurisprudence. Although South Africans have a history of deep divisions characterised by strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines, is the value of ubuntu - a notion now coming to be generally articulated in this country.”

Mokgoro J asserted that: “While [ubuntu] envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.” She also said elsewhere that the value of ubuntu has been: “viewed as a basis for a morality of co-operation, compassion, communalism, and concern for the interests of the collective respect for the dignity of personhood, all the time emphasising the virtues of that dignity in social relationships and practices.”

Mohamed J was of the opinion that the reference to a "need for ubuntu" expresses: “the ethos of an instinctive capacity for and enjoyment of love towards our fellow men and women; the joy and the fulfilment involved in recognizing their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve and are served by.”

Langa J, highlighting its communal spirit, stated that a culture of ubuntu "places emphasis on communality and on the interdependence of the members of a community". It recognises the humanity of each person and the entitlement of all people to "unconditional respect, dignity, value and acceptance" from one's community. Importantly, he continues, these rights also entail the converse: every person has a corresponding duty to show the same respect, dignity, value and acceptance to each member of that community. Inherent to this communality are the ideas of mutual enjoyment of rights by all, sharing and co-responsibility. In Makwanyane, Langa J raised another significant aspect, namely the extent to which ubuntu overlaps with other important constitutionally-entrenched rights. He stated that an "outstanding feature" of ubuntu is the value it puts on life and human dignity. Ubuntu signifies emphatically that "the life of another person is at least as valuable as one's own" and that "respect for the dignity of every person is integral to this concept". He remarked: “During violent conflicts and times when violent crime is rife, distraught members of society decry the loss of ubuntu. Thus heinous crimes are the antithesis of ubuntu. Treatment that is cruel, inhuman or degrading is bereft of ubuntu.”

Subsequently, in MEC for Education: KwaZulu-Natal v Pillay, 2008 1 SA 474 (CC) Langa CJ elaborated on the communal ethos of ubuntu, explaining that the notion that "we are not islands unto ourselves" is central to understanding the individual in African thought. This idea, he said, is regularly expressed by the Zulu phrase umuntu ngumuntu ngabantu, which has been tentatively translated as "a person is a person through other people". Mokgoro J called this phrasing a "metaphorical" expression, "describing the significance of group solidarity on survival issues so central to the survival of communities". In MEC for Education: KwaZulu-Natal v Pillay, Langa CJ cites Kwame Gyekye, who says that "an individual human person cannot develop and achieve the fullness of his/her potential without the concrete act of relating to other individual persons".

In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) par 37 Sachs J: “We are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuces the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”  

 

REFLECTIONS:

1.      Read Kai Kresse ‘Philosophizing in Mombasa: Knowledge, Islam and Intellectual Practice on the Swahili Coast’ and critique his exposition on the notion of ‘utu’ with a view to analyse whether Kenyan courts can develop a jurisprudence based on the African philosophic ethic ‘utu’? what lessons can Kenya learn from South African courts development of jurisprudence around the ethic of ‘ubuntu’?

 

2.      Is there a difference between the concept of ‘human dignity’ in western legal thought and the conception of ‘ubuntu’/ ‘utu’ in African thought?

 

3.      Revisit the debate between the Nigerian philosopher Ifeanyi Menkiti and the Ghanian Philosopher Kwame Gyekye about the nature of Afro-communitarianism.  What is your view on the radical communitarianism espouced in Menkiti’s moral- political theory that seems to reject the existence of individual rights in the African world view and elevates the notion of duties above the idea of rights? 

 

Distributive (restorative) justice over formal (punitive) justice

Law is seen in Africa as an instrument for maintaining social equilibrium, with emphasis placed on distributive justice rather than formal justice. The most important objective was to promote communal welfare by reconciling the divergent interests of different people. Law in this conception does not create offences, it directs how individuals and communities should behave towards each other. The deterrent or purely penal theory does not come into play. An offence for murder for example is punished from the perspective that an equilibrium in the society has been disturbed, the law set in to restore the social equilibrium.  

The judicial application of ubuntu and the implementation of restorative justice measures frequently go hand-in-hand. The link between ubuntu and reconciliation was explicitly explained by Madala J. In Makwanyane. The "reformative" theory of punishment regards punishment as the means to reform and rehabilitate a criminal. This reformative process "accords fully with the concept of ubuntu which is so well enunciated in the Constitution." In a poignant passage, he writes of criminals who might find themselves on death row that: “It is true that they might have shown no mercy at all to their victims, but we do not and should not take our standards and values from the murderer. We must, on the other hand, impose our standards and values on the murderer.” For Madala J, one of these values is ubuntu.  

In Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) the Court was required to balance the occupiers' right to access adequate housing and their right not to be unlawfully evicted from their homes, on the one hand, with the landowner's property rights, on the other. Sachs J, writing for a unanimous Court, explained that the case required the balancing of the competing interests of both unlawful occupiers and owners in a "principled way" to promote "the constitutional vision of a caring society based on good neighbourliness and shared concern". Sachs J asserted that: “[t]he Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.” He affirmed the need for bona fide engagement with the parties to find "mutually acceptable solutions" to legal disputes, reasoning that in eviction cases it was no longer constitutionally acceptable to regard people as "faceless and anonymous squatters" that should "automatically…be expelled as obnoxious social nuisances". The complex socio-economic problems that underlie unlawful occupation of land require instead that unlawful occupiers be treated with respect and that their views should be heard.

Similarly, in Union of Refugee Women v. Director: Private Security Industry Regulatory Authority, 2007 (4) SA 395 (CC) at para. 145 where Sachs J. had to consider the constitutionality of a blanket refusal to allow refugees from African countries to take up employment in the South African security industry, he spoke of ubuntu as “[t]he culture of providing hospitality to bereft strangers seeking a fresh and secure life for themselves.”   

 

Legal personality

A legal personality in English law is an individual personality or a body corporate. In African juristic thought, the legal personality transcended the individual. According to John Mbiti in ‘African Religions and Philosophy’ asserts thus: “The guilt of one person involves his entire household, including his animals and property. The pollution of the individual is corporately the pollution of those related to him whether they are human beings, animals, or material goods”.

Thus legal personality is interwoven in that it presupposes collective responsibility and a kind of interdependence. It is then very common in African societies for a dispute to involve not only the direct parties to the incident which caused it, but also family or kinship groups of both immediate parties. The rationale behind the corporate responsibility is to ensure a continous harmonious relationship among the entire members of the community as a corporate whole.

Participatory democracy

The western conception of democracy is based on a narrow definition that places overwhelming emphasis on its procedural aspects, as reflected, for example, in elections. It also emphasises representative democracy. In contrast, one of the most outstanding characteristics of traditional African society is the autonomy of the component elements of the political and social order. Related to this is the devolution of power and of the decision-making process down to the local units, down, indeed, to the smallest territorial sub-divisions, such as the lineages and the extended families. Although African societies were characterized by significant differences in their political systems, they all shared this approach, which might be described as a participatory mode of governance. As Wiredu, Kwasi puts it in ‘An Akan Perspective on Human Rights,’ in ‘‘The chief had absolutely no right to impose his own wishes on the elders of the council. . . . The elders would keep on discussing an issue until consensus was reached’’.

Concurring with Langa DCJ’s decision in Democratic Alliance and Another v Masondo NO and Another, [2002] ZACC 28; 2003 (2) SA 413 (CC)(Sachs J, concurring) at para 42 Sachs J observed: “The requirement of fair representation emphasises that the Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs.  Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered.  The dialogic nature of deliberative democracy has its roots both in international democratic practice and indigenous African tradition.  It was through dialogue and sensible accommodation on an inclusive and principled basis that the Constitution itself emerged.  It would accordingly be perverse to construe its terms in a way that belied or minimised the importance of the very inclusive process that led to its adoption, and sustains its legitimacy”.   

Reconciliation and restorative justice naturally require the participation of all interested parties, and the use of ubuntu has given support to participatory democracy. The case of Albutt v. Centre for the Study of Violence & Reconciliation 2010 (3) SA 293 (CC) was concerned with business left unfinished by the Truth and Reconciliation Commission (TRC), namely, a form of amnesty for individuals who had not taken part in the TRC process. To solve this problem, the President announced a special pardon for those who had committed politically motivated offenses. As to whether victims were to be given a voice in this special dispensation, the Constitutional Court held that their participation was essential, partly to establish the truth and partly to achieve national reconciliation. It observed that, in Africa, “[v]ictim participation was the norm in deciding the proper ‘punishment’ for offenders in traditional African society” and “this remarkable tradition of participation and capacity for forgiveness in African society also underlay, at a deeper level, the amnesty process.”

In Joseph v City of Johannesburg 2010 4 SA 55 (CC) the South African Constitutional Court in discussing whether the public law right to receive basic municipal services is sufficient to ground a duty to accord procedural fairness observed thus with respect to participatory democracy: “Taken together, the values and principles described above require government to act in a manner that is responsive, respectful and fair when fulfilling its constitutional and statutory obligations. This is of particular importance in the delivery of public services at the level of local government. Municipalities are, after all, at the forefront of government interaction with citizens. Compliance by local government with its procedural fairness obligations is crucial therefore, not only for the protection of citizens’ rights but also to facilitate trust in the public administration and in our participatory democracy.” Skweyiya J. added in a footnote: “It seems to me that Batho Pele (national policy) gives practical expression to the constitutional value of ubuntu which embraces the relational nature of rights. Courts must move beyond the common law conception of rights as strict boundaries of individual entitlement.”

 In a similar vein, in Koyabe v Minister for Home Affairs 2010 4 SA 327 (CC) the South African Constitutional Court determined whether or not certain constitutional and statutory rights of the applicants - all Kenyan nationals - had been violated by administrative action taken by the Department of Home Affairs. A unanimous court asserted that, having been declared illegal foreigners, the applicants were entitled to reasons for this decision: “In the context of a contemporary democratic public service like ours, where the principles of Batho Pele, coupled with the values of ubuntu, enjoin the public service to treat people with respect and dignity and avoid undue confrontation, the Constitution indeed entitles the applicants to reasons for the decision declaring them illegal foreigners. It is excessively over-formalistic and contrary to the spirit of the Constitution for the respondents to contend that under section 8(1) they were not obliged to provide the applicants with reasons.” That the State, whether directly or indirectly through its delegated entity, should regard people who have the misfortune to be refugees, whether political or economic, as not meriting respectful treatment was thought to be shameful. Were it not able to call on the principles of ubuntu, one wonders how the Court would have substantiated its position. Quite clearly, in our view this situation indicates clearly the importance of the African concept to the business of persuading all, including the State, that respect is not negotiable when dealing with persons.

 

REFLECTIONS:

1.      Read Francis M. Deng ‘Human Rights in the African Context’ in Kwasi Wiredu (ed.) A Companion to African Philosophy page 507 how can we conceive of democracy and conceptualise it by putting into consideration the African reality and making effective use of indigenous values, institutions, and social mores to make it home-grown and sustainable?

2.      Interrogate the African concept of ‘barazas’ and reflect on whether it can offer grounding for the notion of participatory democracy?

3.      In Kenya Association of Stock Brokers and Investment Banks v Attorney General & another PETITION NO. 22 OF 2015 Mumbi Ngugi J. Observed thus: “I am persuaded by the sentiments expressed in these decisions. While the Constitution at Article 10 enshrines the principle of public participation by providing at Article 10(2) that the national values and principles of governance include (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people”, it cannot have been intended that this principle would negate the principle of indirect participation through duly elected representatives in whom the citizen has vested legislative power under Article 1 of the Constitution. In my view, and in keeping with the principle of harmonization and interpretation of the Constitution as a whole, with no one provision destroying the other (see Tinyefuza vs Attorney General of Uganda referred to above, it cannot be that lack of public participation in the enactment of legislation can, in and of itself, lead to invalidation of legislation.  The legislature has a constitutional duty to facilitate public participation and involvement, and indeed it must provide the opportunity and facility for such participation. However, it would render legislative business redundant, which would run counter to the provisions of Article 1 of the Constitution, if lack of direct public participation by a particular sector would lead to invalidation of legislation.” This view places emphasis on representative democracy and ignores the constitution’s embrace of participatory democracy beyond the western/liberal conception of democracy as representative? Can African conception of democracy rescue the weakness of this misguided jurisprudence? 

4.      Can African jurisprudence act as a transformative tool to engender a new distinctively African flavour to Kenya's maturing - but still relatively young - democratic legal culture? Is it necessary that Kenya’s legal culture transforms so as to express also the values that originated in African societies?   

5.      Read J.B. Ojwang’s Inaugural Lecture “Laying a Basis for Rights’ and interrogate whether the conception of ‘rights’ in Anglo-American jurisprudence and the African context is different?

6.      Read Makau Mutua ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’; has there emerged regionally (Africa) and domestically (Kenya)  an understanding of human rights that can be said to be philosophically African?

7.      President Leopold Sedar Senghor of Senegal in 1979 addressed a meeting experts of OAU who had convened to prepare a draft of the ‘African Charter on Human and People’s Rights’ and observed thus: “As Africans we shall not copy, nor strive for originality, for the sake of originality. We must show imagination and effectiveness. We could get inspirations from our beautiful and positive traditions. Therefore, you must keep constantly in mind our values of civilisation and the real needs of Africa’. Has Africa developed a distinct conception of rights as counselled by Leopold?

8.      It has been argued that transformative adjudication must be value drenched. This means that constitutional reasoning must be value laden. In your view, should such reasoning incorporate indigenous value systems?    

9.      Read the decision by Justice Smokin Wanjala in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR and the history of the treatment by Kenyan judges of rights and interest previously vested in a group, family or individual under African Customary Law which had been held for along time to be extinguished upon registration of trust land. Does the reversal of the long standing jurisprudence that had rejected customary trust in Isack M’inanga Kiebia judgment amount to decolonialisation of jurisprudence?

LAW AND POLITICAL MORALITY -VALIDITY OF LAWS

The central question is whether there is a relationship between law and morality?’ Traditionally, legal positivists answer ‘no’, since in their view all it takes for law to be valid law is for it to comply with the criteria for recognizing law as such in a particular society. Natural lawyers, in contrast, answer ‘yes’. Our lens on this debate will be what we can think of as the ‘wicked legal system’ objection to natural law positions. If we know that there have been immoral valid laws and, what is more, whole legal systems that made the law an instrument of immorality, surely legal positivists must have the better of the debate. Wicked legal systems pose challenging questions to all parties to the debate.

The famous debate between Lon Fuller and HLA Hart in the 1958 Harvard Law Review on the legality of Nazi law and the response to the Nazi period by the German legal philosopher, Gustav Radbruch--that extreme injustice negates the validity of law is apt example of this contest. Gustav Radbruch presented his famous formula under the immediate impression

of twelve years of National Socialism. It reads:

“The conflict between justice and legal certainty should be resolved in that the positive law, established by enactment and by power, has primacy even when its content is unjust and improper. It is only when the contradiction between positive law and justice reaches an intolerable level that the law is supposed to give way as a ‘false law’ [unrichtiges Recht] to justice. It is impossible to draw a sharper line between the cases of legalized injustice and laws which remain valid despite their false content. But another boundary can be drawn with the utmost precision. Where justice is not even aimed at, where equality—the core of justice—is deliberately disavowed in the enactment of a positive law, then the law is not simply ‘false law’, it has no claim at all to legal status”.

 

Radbruch’s formula excludes certain contents from entering into the content of law, namely extreme injustice. In this way it restores a necessary connection between law and morality, that is, between the law as it is and the law as it ought to be.

The issue at stake in the Hart-Fuller debate was how the post-Nazi German legal system should respond to heinous acts committed during the Nazi period and purportedly authorised by Nazi law. Hart argued that because these acts, however reprehensible, were lawful at the time they were committed, thus rejecting reasoning suggesting that Nazi laws were not valid laws because they were odious. This according to Hart would confuse what the law is and what the law ought to be.

Fuller insisted that “law” was not a neutral concept, but that it already embodied an inner morality of its own. Regimes that repudiated or persistently violated this inner morality were not really entitled to be called legal systems. Like the Nazi regime in Germany from 1933-45, they made a travesty of law, and jurisprudence needed to be in a position, Fuller said, to denounce that travesty for what it was. Fuller, argued that fidelity to legality i.e. to ensuring that are public, clear, non-contradictory, proscriptive, reliable, possible to comply with and applied as articulated –is an essential feature of legal systems that allows human beings to govern their interactions with one another with reference to rules. Fuller contended that the systemic procedural irregularities in which Nazi dictates were embedded departed so seriously from the principles of legality that at least some Nazi dictates could not reasonably be characterised as legal. These irregularities included extensive use of legislation to retroactively render criminal acts lawful, secret regulations and legislation, and political interference with the judiciary such that the interpretation and application of laws became subject to executive whims. Given these irregularities, according to Fuller post-Nazi German courts could legitimately refuse to allow individuals to avoid legal repercussions for heinous acts committed under the colour of Nazi law.

REFLECTIONS:

1.    Should one regard as continuing to be legally valid something which offended against fundamental principles of justice and the rule of law when it was legally valid in terms of the positive law of the legal system which had perished.  To use a handy though imprecise formulation, can something be illegal today which in the past was legal?

2.    Walter Khobe ‘The Retrospective Reach of Transitional Constitutionalism’ (2014) 1 The Journal of Law and Ethics 259 critiques the jurisprudence of the Supreme Court of Kenya in the S.K. Macharia and Rai cases arguing that the transformative role of law in shift to a more liberal regime is that prior judgments under the old dispensation lacked morality and hence did not constitute valid judgments. What would be your thoughts as to the legal validity of judgments influenced by corruption and other instances of judicial misconduct in the former dispensation?

3.    Read on the John Dugard –Raymond Wacks debate: Is there an obligation on judges committed to justice to resign in a wicked legal system? 

 

 

LEGAL ENFORCEMENT OF PERSONAL MORALITY

There is a general consensus that the government should establish legal rules that are consistent with and that can be seen as enforcing moral norms. There is and has always been a large overlap between legal and moral standards. If one were to disallow the legal enforcement of moral standards, most of what passes for criminal law (prohibiting murder, robbery, rape e.t.c.), tort law (requiring compensation for negligently or intentionally inflicted harms), contract law (enforcing promises) and much of the rest of the legal system, would thereby be considered improper.

The dispute in this area of legal theory is not a re-consideration of a wholesale overhaul of the legal system. In the reference to the legal enforcement of morality, a certain subset of moral standards is usually indicated. However there is no consensus as to the appropriate place to draw the dividing line between moral standards the law should enforce and those that the law should not enforce. Contemporary legal opinion also divides as to the constitutionality of various statute that forbid conduct based on the alleged right of the state to enforce moral views. Whether the issue is consensual homosexual conduct between adults, nude dancing in bars, or the ritual sacrifice of animals, judges disagree about whether the state should regulate conduct based on its moral status.

The Report of the Committee on Homosexual Offenses and Prostitution (the Wolfenden Report) defended a particular conception of the function of the criminal law:

“[I]ts function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.”

Having said what the law allows by way of reasons for coercion, the report made clear at least one ground that is not allowed: "It is not the duty of the law to concern itself with immorality as Such.”

The usual rubric under which one discusses these issues is that of the enforcement of morality by the criminal law. The specific formulation attributed to the above claims is that the law ought not to be in the business of enforcing morality. The obvious rejoinder, however, is: Why then does the law protect citizens against, among others, injury, harm, offense, and indecency? Surely, it is because for someone to inflict these on another without adequate justification and excuse is to act wrongly, i.e., immorally. Indeed, if one begins to examine some of the more specific categories, the most prominent of which is "harm," one reaches the conclusion that the term itself is a normative one.

John Stuart Mill in On Liberty attempts to propose a dividing by arguing that: ‘The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others.” Mill also wrote: ‘A person ought to be free to do as they want unless in doing so they violate a distinct and assignable obligation to someone else.’  

The harm principle was endorsed by Justice Saunders at the Carribean Court of Justice, in Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana [2018] CCJ 30 (AJ) where the Caribbean Court of Justice ruled that a law in Guyana, which makes it a criminal offence for a man or a woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose”, is unconstitutional. The judge observed thus:  

“Difference is as natural as breathing. Infinite varieties exist of everything under the sun. Civilised society has a duty to accommodate suitably differences among human beings. Only in this manner can we give due respect to everyone’s humanity. No one should have his or her dignity trampled upon, or human rights denied, merely on account of a difference, especially one that poses no threat to public safety or public order.”

 

The supporting arguments for the harm principle are:

First, the government is ill-placed to do certain things, like policing morals.

Second, the central place of liberty and autonomy in peoples’ lives and the likelihood that society will be better off if a great variety of values and approaches to life are tolerated. Waldron in Liberal Rights calls this ‘ethical confrontation’ i.e. the idea that moral progress is more likely to occur when alternative views about morality, politics and how one should live are subject to open discussion, both in the literal sense and in the sense that ways of living based on these alternative values are tolerated and thereby remain open to public view.

The line drawn between actions that harm others and those that do not has a strong intuitive appeal to many: ‘if my actions do not harm anyone else, then they are no one else’s business, especially not the state’s’. However, in societies where insurance is pervasive, where governments provide health care services there may no longer be many actions which are purely self-regarding.

There is also contestation as to the correct approach to Mill’s dividing line of ‘harm to others.’ For example, does this harm include ‘offense to others’ and should there be a distinction between the offense one feels when confronted by the activity or comment and offense one feels when confronted by the activity or comment and offense one might feel by the mere knowledge of what other people are doing in private. HLA Hart has argued in favour of legal legislation to protect ‘public decency’. However, he refused to go further, to add protections against offense based on what others do in private.

 A reasoning of this kind is evident in Case v Minister of Safety and Security 1996 (3) SA 617 (CC) at para 91 where Didcott J, in a case dealing with the question of the prohibition of the possession of pornography, went so far as to say: 

‘What erotic material I may choose to keep within the privacy of my home, and only for my personal use there, is nobody’s business but mine.  It is certainly not the business of society or the State.’

 

Lord Devlin argued that society is held together by its shared morality; actions which undermine the shared morality undermine society; so society is justified in protecting itself through using the law to enforce society’s morality.

The moralists believe that law should not only be moral itself but should contain rules which prohibit ‘immoral behaviour’. The law cannot divorce itself from these moral values. The belief that law should reflect morality has been endorsed in some cases. In the old English case of Shaw v DPP, [1962] AC 220, the appellant published a 'ladies directory' which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. The House of Lords upheld a conviction of the offence of a conspiracy to corrupt the public morals when the defendant published a pornographic book. The court found that a fundamental purpose of the law was to ‘conserve not only the safety and order but also the moral welfare of the state.’

The Kenyan judiciary in the pre- 2010 dispensation took this stance as evident in the High Court’s decision in the case of R.M. v Attorney General and 4 others Petition 705 of 2007 that concerned the recognition of intersex persons as a separate gender in the Kenyan law. The High Court rejected the proposition arguing that intersex persons are sufficiently protected in the Kenyan Legal system and observed, inter alia, that sexuality issues should not be detached from the spirit, values, attitudes and norms of society. Furthermore, the court alluded that recognising intersex as a separate gender would be contrary to the perceptions of the society.   

In more recent times the philosopher Joel Feinberg (The Moral Limits of the Criminal Law(4 Volumes)) has, in addition, developed the related offense principle.  He distinguishes between offensive actions and actions which are to be subjected to the offence principle.   If a person is forced to suffer an offence regardless of whether or not actual harm results, that person is no less harmed and therefore government acts in legitimate fashion in regulating these offensive actions.

 

In conclusion, it is arguable that the government has a place in shaping the options available to its citizens, but the importance of autonomy and liberty combine to limit severely the circumstances in which coercive moral paternalism will be justified.

REFLECTIONS:

1.      The petitioners in CKW v Attorney General & another, Petition Number 6 of 2013 argued that Sections 8 (1) and II (1) of the Sexual Offences Act are invalid, to the extent that they criminalise consensual sexual relationships between adolescents”.

Justice Ochieng’ dismissed the challenge stating:

“97. In this case, I find that the purpose of Sections 8 (1) and 11 (1) of the Sexual Offences Act was not manifestly directed at impairing the rights of the petitioner. The petitioner has not led any evidence to demonstrate past patterns of disadvantage.

98. If anything, I do find that the provisions of law which are in issue were aimed at achieving a worthy or important societal goal of protecting children from engaging in premature sexual conduct.

99. Children are particularly vulnerable, and they therefore require legal  protection. The law which seeks to offer them such protection as they need is not unconstitutional.”

Do you agree with the sentiments of the judge?

2.      The Constitutional Court of South Africa held at paragraph 88 of its decision in S v Makwanyane and Another (CCT3/94) [1995] ZACC 3,:

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for Constitutional adjudication…. The very reason for establishing [the Constitution], and for vesting the power of judicial review…. in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.”

Similar views were expressed in the decision of the United States Supreme Court in West Virginia State Board of Education v Barnette 319 U.S 624 (1943) at 638:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to a vote, they depend on the outcome of no elections”.

In the context of same-sex marriages, Sachs J declared in Fourie:

“A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are.  To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality.  Equality means equal concern and respect across difference.  It does not presuppose the elimination or suppression of difference.  Respect for human rights requires the affirmation of self, not the denial of self.  Equality therefore does not imply a levelling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgment and acceptance of difference.  At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to any society. . . .  At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect.  The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.

As was said by this Court in Christian Education there are a number of constitutional provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular texture to the broadly phrased right to freedom of association contained in section 18.  Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the ‘right to be different’.  In each case, space has been found for members of communities to depart from a majoritarian norm.”

 

Does majoritarian views matter in the decision as to what should be criminally enforced or not in your view?

 

3.      The High Court of Kenya in Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 Others, Petition Number 440 of 2013 stated thus:

 

“121. In our view, the answer is a resounding no. The Board and the Attorney General rely on their moral convictions and what they postulate to be the moral convictions of most Kenyans. They also rely on verses from the Bible, the Quran and various studies which they submit have been undertaken regarding homosexuality. We must emphasize, however, that no matter how strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights: they are not laws as contemplated by the Constitution. Thus, neither the Penal Code, whose provisions we have set out above, which is the only legislation that the respondents rely on, nor the religious tenets that the Board cites, meet the constitutional test for limitation of rights.

122. To cite religious beliefs as a basis for imposing limitations on human rights would fly in the face of Article 32 of the Constitution. Freedom to profess religious beliefs, with due respect, encompasses freedom not to do so. Or, to put it differently, freedom of religion encompasses the right not to subscribe to any religious beliefs, and not to have the religious beliefs of others imposed on one.

123. In Kenya, the Constitution is supreme, and it requires conduct to be justified in terms of laws that meet the constitutional standard. The state has to act within the confines of what the law allows, and cannot rely on religious texts or its views of what the moral and religious convictions of Kenyans are to justify the limitation of a right. The Attorney General and the Board may or may not be right about the moral and religious views of Kenyans, but our Constitution does not recognise limitation of rights on these grounds. The Constitution is to protect those with unpopular views, minorities and rights that attach to human beings – regardless of a majority’s views. The work of a Court, especially a Court exercising constitutional jurisdiction with regard to the Bill of Rights, is to uphold the Constitution, not popular views or the views of a majority.”

Do you agree with the views expressed by the High Court?

 

4            In Congo for example, E. E. Evans-Pritchard recorded that in the past male Azande warriors in the northern Congo routinely took on young male lovers between the ages of twelve and twenty, who helped with household tasks and participated in intercrural sex with their older lovers.

In Lesotho, women in Lesotho engaged in socially endorsed long term, erotic relationships with other women; this other woman would be called their motsoalle. These women were married to men, and their husbands knew of the motsoalle relationship.

There is also the case of Mwanga II Kabaka (king) of Buganda in the late 19th century. Mwanga is remembered in history for executing 26 of his pageboys, converts to Christianity, apparently for refusing to have sex with him.

The 22 who were Catholic became saints – the Uganda Martyrs – complete with a national holiday. But the executions were part of a larger political struggle in the royal court, which is often reduced to caricature – Mwanga’s legacy became the story of an evil homosexual rapist king, while Christianity was portrayed as being under siege for fighting for sexual purity. In reality, there was more to the story.

The letters and journals of the handful of missionaries who lived or visited Buganda in the 1880s point towards Mwanga as a self-indulgent and erratic man with foolish and barbaric ways, especially compared to his father. To this was then added the feather of being a rapist who put innocent Christians to death because they dared refuse his sexual advances.

One of the earliest written records of Mwanga’s sexual preferences was a letter by Alexander Mackay barely two months after the new Kabaka rose to the throne. The letter told the story of how a young page called Apollo Kaggwa had been punished for refusing the king. Mackay also wrote that the king had become addicted to marijuana and was cavorting with Arabs at court. It was from them that he had picked up homosexuality, Mackay wrote.

When Kabaka Mwanga put 45 Christian men to death two years later, and assassinated a white missionary, this became the only accepted reason. It was dressed in a garb of an assertion of authority, power, and obedience, and Mwanga became the king who killed pious people who disobeyed him. It didn’t matter that the Arab angle didn’t make much sense because the Kabaka before him had slaughtered 70 Muslim converts a decade earlier, curbing Arab influence at court.

What are your reflections on the place of homosexuality in pre-colonial Africa taking into account historical records? Further read Sylvia Tamale (eds) ‘African Sexualities: A Reader’, and Charles Ngwena ‘What is Africanness: Contesting nativism in culture, race and sexualities’ (PULP, 2018) to offer insights for your reflections.

4.    “Disgust is equally perplexing in theory. The appeal to disgust in law has its most famous defense in Lord Devlin’s The Enforcement of Morals, an influential work of conservative political thought. Lord Devlin argues that the disgust of average members of society (the “man on the Clapham omnibus”) gives us a strong reason to make an act illegal, even if it causes no harm to others. This is so, he claims, because society cannot protect itself without making law in response to its members’ responses of disgust, and every society has the right so to preserve itself.” Per Martha Nussbaum Hiding from Humanity: Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004) at page 4.

Critically discuss the view that a society needs to build law on the basis of disgust and particularly the view that citizens should be shielded by law from what disgusts them?  

 

5.    Can consent by adults to the “immoral” acts be considered to oust the wider polity’s right to interfere through legal regulation in the said “immoral” act? For examples, consider the case of Laskey, Jaggard and Brown v The United Kingdom (1997) 24 EHRR 39, which disallowed consensual sado-masochistic practices; and Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC), which disallowed corporal punishment in schools despite parental approval of it on religious grounds.

 

6.    What is your view on the criminalisation of growing of Cannabis (bhang) in small quantities and use of the same for personal consumption and whether the criminalisation violates the right to privacy? In reflecting on this question take into account the following judicial decisions from across the globe: Read the Canadian Supreme Court decision in R v Malmo-Levine [2003] SCC 74. Where the Majority opined that:  ‘The criminalisation of possession is a statement of society’s collective disapproval of the use of a psychoactive drug such as marihuana (Morgentaler, supra, at p. 70), and, through Parliament, the continuing view that its use should be deterred.  The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm.  In particular, criminalisation seeks to take marihuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers.  In light of these findings of fact it cannot be said that the prohibition on marihuana possession is arbitrary or irrational, although the wisdom of the prohibition and its related penalties is always open to reconsideration by Parliament itself.’ (642-643); while the Minority judge Arbour J said: ‘Be it as a criminal sanction or as a sanction to any other prohibition, imprisonment must, as a constitutional minimum standard, be reserved for those whose conduct causes a reasoned risk of harm to others. “Doing nothing wrong” in that sense means acting in a manner which causes little or no reasoned risk of harm to others or to society.  The Charter requires that the highest form of restriction of liberty be reserved for those who, at a minimum, infringe on the rights or freedoms of other individuals or otherwise harm society. (at 702-703)

Read also The Arriola case, where On 25 August 2009 the Argentinian Supreme of Justice unanimously declared the second paragraph of Article 14 of the Argentinian Drug Control Legislation (Law Number 23,737) which criminalised the possession of drugs for personal consumption of prison sentences ranging from one month to two years to be unconstitutional.  In this regard the court noted: ‘Drug possession for personal consumption in itself does not provide any reason to affirm that the accused have carried out anything more than a private act or that they have offended public morals or the right of others.’

Further read Ravin v State of Alaska (27 May 1975) where the Alaskan  Supreme Court was required to deal with constitutionality of the Alaskan statute for prohibiting possession of marihuana. The court held: ‘Thus, we conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska’s constitution.  This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal , non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.’ (para 12)

Lastly read Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others (4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31 March 2017), where the Western Cape High Court held: “The evidence, holistically read together with the arguments presented to this court, suggests that the blunt instrument of the criminal law as employed in the impugned legislation is disproportionate to the harms that the legislation seeks to curb insofar as the personal use and consumption of cannabis is concerned.”