CONSTITUTION/BILL OF RIGHTS INTERPRETATION
Why is constitutional interpretation an issue? Interpretation is interpretation, is it not?
You just read the text, follow the well-known rules of statutory interpretation and apply
the maxims. However, it is not that simple, and not that mechanical and formalistic
either! Interpretation of legislation (including a constitution) is reading of the text-in-
context.
Constitutional interpretation is a process that employs generally applicable principles,
procedures and strategies to read and apply the Constitution, starting with and centred on the
written constitutional document. It is a process of seeking to discover the content of the norms
and apply them. More importantly, it is a process of the practical realisation of the constitutional
provisions by giving them content, shape and direction. While Article 2(4) makes it clear that
any law that is inconsistent with the Constitution is void to the extent of the inconsistency, in
terms of Article 165(3)(d)(i), the High Court has jurisdiction to interpret the Constitution and
determine „whether any law is inconsistent with or in contravention of [the] Constitution‟ and
make the necessary declaration. This draws on what Justice John Marshall of the US Supreme
Court found many years ago, where he pointed out that it is the role of the judiciary to weigh
Acts of the legislature and acts of any other body against the Constitution for constitutional
consistency and, where there is inconsistency, declare them unconstitutional and invalid.
WHY IS CONSTITUTIONAL INTERPRETATION DIFFERENT?
Constitutional interpretation is similar to, but not identical to “ordinary” statutory
interpretation. The difference between constitutional and “ordinary” interpretation was
explained by Froneman J in Matiso v Commanding Officer, Port Elizabeth Prison 1994
(4) SA 592 (SE) 597G-H:
“The interpretation of the Constitution will be directed at ascertaining the
foundational values inherent in the Constitution, whilst the interpretation of the
particular legislation will be directed at ascertaining whether that legislation is
capable of an interpretation which conforms with the fundamental values or
principles of the Constitution”.
A supreme constitution is not merely another legislative document, but the supreme law
(lex fundamentalis) of the land. A constitutional state (which has a supreme constitution)
is underpinned by two foundations, namely a formal one (which includes aspects such
as the separation of powers, checks and balances on the government, and the principle
of legality: in other words, the institutional power map of the country); and a material or
substantive one (which refers to a state bound by a system of fundamental values
such as justice and equality).
In S v Makwanyane 1995 3 SA (CC) para 262 Mohamed J referred to a supreme
constitution in the following ringing tones:
“All constitutions seek to articulate, with differing degrees of intensity and detail,
the shared aspirations of a nation; the values which bind its people, and which
discipline its government and its national institutions; the basic premises upon
which judicial, legislative and executive power is to be wielded; the
constitutional limits and the conditions upon which that power is to be exercised;
the national ethos which defines and regulates that ethos; and the moral and
ethical direction which that nation has identified for its future. In some countries,
the Constitution only formalises, in a legal document, a historical consensus of
values and aspirations evolved incrementally from a stable and unbroken past
to accommodate the needs of the future. The South African Constitution is
different: it retains from the past only what is defensible and represents a
decisive break from, and a ringing rejection of, that part of the past which is
disgracefully racist, authoritarian, insular, and repressive and a vigorous
identification of and commitment to a democratic, universalistic, caring and
aspirationally egalitarian ethos, expressly articulated in the Constitution.”
According to Etienne Mureinik in ‘A bridge to where? Introducing the interim bill of rights’
(1994)SAJHR 32,’the Constitution forms a bridge in a divided society, a bridge from a culture of
authority (based on sovereignty of parliament) to a culture of justification (based on a supreme
constitution). In the case of Samura Engineering Ltd & Others v Kenya Revenue
Authority Nairobi petition No. 54 of 2011 the Court (Majanja) noted that, “[77] By placing the
values of rule of law, good governance, transparency and accountability at the centre of the
Constitution, we must now embrace the culture of justification which requires that every official
act must find its locus in the law and underpinning in the Constitution.”
Hon. Justice Kalpana Rawal and Others v Judicial Service Commission and Others,
Applications No. 11 and 12 of 2016 Mutunga CJ noted “[16] By recalling the words of a South
African scholar Etiene Mureinik, writing in the post-apartheid moment, (in a journal article ‘A
Bridge to Where? Introducing the Interim Bill of Rights,’ 10 SAJHR 31, 32 (1994)), I state that
ours is a new era of constitutional “justification” in which the exercise of all public power is
constrained by the Constitution, its values and principles.”
Trusted Society of Human Rights Alliance and others vs. Judicial Service Commission and
Another, Petition No. 314 of 2016 Odunga J noted: “I prescribe to the notion advanced by
Etienne Mureinik in A Bridge to Where? Introducing the Interim Bill of Rights(1994) 10
SAJHR 32, that the Constitution instils a culture of justification, “in which every exercise of
power is expected to be justified”.
Mahomed AJ explained constitutional supremacy as follows in the Namibian case of S
v Acheson 1991 2 SA 805 (Nm) 813A-C:
‘(T)he Constitution of a nation is not simply a statute which mechanically defines
the structures of government and the relations between the government and the
governed. It is a “mirror reflecting the national soul”, the identification of the
ideals and aspirations of a nation; the articulation of the values bonding its
people and disciplining its government. The spirit and tenor of the Constitution
must therefore preside and permeate the processes of judicial interpretation and
judicial discretion.’
See also Mutunga CJ’s Separate Opinion in Jasbir Singh Rai & 3 Others V
Tarlochan Singh Rai & 4 Others, Petition 4 of 2012Para 89.
According to Du Plessis in ‘The South African Constitution as memory and promise’
(2000) Stellenbosch Law Review 385-394), the Constitution is both a monument which
celebrates and a memorial which commemorates.
Furthermore, a supreme constitution has the following characteristics: it is open-ended,
value-laden and it has a dimension of futurity.
HOW TO INTERPRET THE KENYAN CONSTITUTION
But what does the Constitution say about its interpretation? The Kenya Constitution,
2010 has an express vision on how it is to be interpreted.The Constitution and the Bill of
Rights require a purposive interpretation, with due regard to the values and aspirations
expressed in the constitutional text. Article 259(1) stipulates that the Constitution shall
be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill
of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.
Furthermore, Article 20(4) of the Constitution, stipulates that in interpreting the Bill of
Rights, one should promote:
(a) The values that underlie an open and democratic society based on human
dignity, equality, equity, and freedom;
(b) The spirit, purport and objects of the Bill of Rights.
When interpreting the Constitution/Bill of Rights, a court, tribunal or forum must make
value judgements. This entails a value-coherent construction – the aim and purpose of
the provision must be ascertained against the fundamental constitutional values. The
fundamental values in the Constitution form the foundation of a normative constitutional
jurisprudence during which legislation and actions are evaluated against (and filtered
through) those constitutional values.
It is also trite that Courts must adopt a contextual interpretation. This method is
concerned with the clarification of the meaning of a particular constitutional provision in
conjunction with the Constitution as a whole. This is also known as a holistic
approach. The emphasis on the ‘wholeness’ is not restricted to the other provisions and
parts of the Constitution, but also takes into account all contextual considerations such
as the social and political environments in which the Constitution operates. If an
interpretive framework were required to buttress this position, it would be the one
reflected in the principle of harmonization enunciated by Musinga J (as he then was) in
the case of Centre for Rights Education and Awareness (CREAW) and Others –vs-
The Attorney General Nairobi Petition No 16 of 2011 (Unreported) where the Court
observed as follows:
“In interpreting the Constitution, the letter and the spirit of the supreme law must
be respected. Various provisions of the Constitution must be read together to get
a proper interpretation. In the Ugandan case of Tinyefuza v The Attorney General
Constitutional Appeal No. 1 of 1997, the Court held as follows;
“the entire Constitution has to be read as an integrated whole and no one
particular provision destroying the other but each sustaining the other. This is the
rule of harmony, rule of completeness and exhaustiveness and the rule of
paramountcy of the written constitution.”
Article 259 (1) provides that the Constitution shall be interpreted in a manner that:
“a) promotes its purpose, values and principles;
b. advances the rule of law, the human rights and fundamental freedoms in the Bill of
Rights.
c. permits the development of the law; and
d. contributes to good governance.”
Further article 259(3) provides that:
“Every provision of the Constitution shall be construed according to the doctrine of
interpretation that the law is always speaking…”
The Supreme Court later noted that the 2010 Constitution of Kenya is a constitution with a value
orientation thus distinguishing it from minimalistic and legalistic constitutions in other
jurisdictions In the Matter of the Principle of Gender Representation in the National
Assembly and the Senate, Sup. Ct. Advisory Opinion Appl. No. 2 of 2012, at paragraph 54.
Underlining its ‘thick’ conception, the majority stated thus:
“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 their 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 favor 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, the 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.”
In Communications Commission of Kenya & others v Royal Media Services and Others
Sup. Ct. Petition Nos. 14, 14A, 14B and 14C of 2014 (CCK) the Supreme Court observed at
paragraph 368 that:
“The Constitution itself has reconstituted or reconfigured the Kenyan state from its
former vertical, imperial, authoritative, non-accountable content under the former
Constitution to a state that is accountable, horizontal, decentralized, democratized, and
responsive to the principles and values enshrined in Article 10 and the transformative
vision of the Constitution. The new Kenyan state is commanded by the Constitution to
promote and protect values and principles under Article 10”
Thus like the post-Nazi German Basic Law and the post-apartheid 1996 South African
Constitution, the post-authoritarian 2010 Constitution of Kenya, a pristine Constitution that
represents a total rupture with our authoritarian past, can be said to embody an “objective,
normative value system”. The German Federal Constitutional Court in the famous 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 with respect to such a constitution:
“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.”
Similarly, the South African Constitutional Court in a paragraph that has been hailed by
constitutional theorists across the globe as representing the acme of transformative adjudication
also weighed in as follows with respect to this model of a Constitution in Carmichele v
Minister of Safety and Security (CCT 48/00) 2001 (4) SA 938 (CC):
“Our Constitution is not merely a formal document regulating public power. It also
embodies, like the German Constitution, an objective, normative value system. As was
stated by the German Federal Constitutional Court: ‘The jurisprudence of the Federal
Constitutional Court is consistently to the effect that the basic right norms contain not
only defensive subjective rights for the individual but embody at the same time an
objective value system which, as a fundamental constitutional value for all areas of the
law, acts as a guiding principle and stimulus for the legislature, executive and judiciary.’
The same is true of our Constitution. The influence of the fundamental constitutional
values on the common law is mandated by section 39(2) of the Constitution. It is within
the matrix of this objective normative value system that the common law must be
developed.”
The South African Constitutional Court in Matatiele Municipality v President of the Republic
of South Africa 2007 (6) SA 477 (CC)) at para 36 held thus:
“Our Constitution embodies the basic and fundamental objectives of our constitutional
democracy. Like the German Constitution, it ‘has an inner unity, and the meaning of any
one part is linked to that of other provisions. Taken as a unit [our] Constitution reflects
certain overarching principles and fundamental decisions to which individual provisions
are subordinate.’ Individual provisions of the Constitution cannot therefore be
considered and construed in isolation. They must be construed in a manner that is
compatible with those basic and fundamental principles of our democracy.
Constitutional provisions must be construed purposively and in the light of the
Constitution as a whole.”
Similarly in Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA
545 (CC) at para 21 the SA Con Court held:
“The Constitution is located in a history which involves a transition from a society based
on division, injustice and exclusion from the democratic process to one which respects
the dignity of all citizens, and includes all in the process of governance. As such, the
process of interpreting the Constitution must recognise the context in which we find
ourselves and the Constitution’s goal of a society based on democratic values, social
justice and fundamental human rights. This spirit of transition and transformation
characterises the constitutional enterprise as a whole.”
Justice Kollapen wrote in Afriforum and Another v Chairperson of the Council of the
University of Pretoria and Others (54451/2016) [2016] ZAGPPHC 1030;
"The idea of a society in transformation can, on the one hand, be positive and
affirming while at the same time be unsettling and the source of much insecurity.
These are but some of the formidable challenges we are required to navigate in
translating the values and the imperatives of the Constitution into reality.
The Constitution is not vindictive nor vengeful in charting the path for our future.
It contemplates a principled, value-based trajectory for the change that must
herald the unfolding of a new constitutional order."
Thus the Supreme Court of Kenya, like the German Federal Constitutional Court and the South
African Constitutional Court, has underscored the difference between seeing a constitution as a
value-impregnated document representing a society's core values as is the case with the 2010
Constitution rather than as a formal delineation of authority and power relationships as it was
under the earlier constitutions or constitutions in other jurisdictions.
Read also: Walter Khobe ‘From Willy Mutunga to David Maraga: Impending
Jurisprudential Shift?’ (2016) 23 The Platform pp. 32-47.
In the matter of Advisory Opinion of the Court; In the matter of the Interim Independent
Electoral Commission - Constitutional Application No. 2 of 2011 [2011] eKLR paragraph 86,
the Supreme Court of Kenya stated:
“The rules of constitutional interpretation do not favour formalistic or positivistic approach
(Article 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 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 court”.
And in the matter of Kenya National Commission on Human Rights, Supreme Court
Advisory Opinion Reference No. 1 of [2012] eKLR para 26 the Supreme Court said: -
“But what is meant by a holistic interpretation of a Constitution? It must mean
interpreting the Constitution in context. It is contextual analysis of a constitutional provision
reading it alongside and against other provisions so as to maintain a rational explication of
what the Constitution must be taken to mean in the light of its history, of issues in dispute and
of the prevailing circumstances.”
The 2010 Constitution is transformative. The challenge of constitutional interpretation is to
define and give life and substance to values and broad principles enunciated in the Constitution
in an ever-changing society by application of a principled theory of constitutional interpretation
as articulated in article 259.
In sum, the interpretive approach demanded by the Constitution is value- and purpose-oriented.
In particular, fundamental rights are understood as legal expressions of values. For the
interpretation of some fundamental rights (like freedom of the media) and most of the structural
provisions the purpose that they are supposed to fulfil plays an important role. The goal of
constitutional interpretation can be described as to give the utmost effect to the value or purpose
of a constitutional norm under given conditions.
