Constitutional Interpretation at Parklands School of Law

It was a battle royal at the University of Nairobi School of Law, as the best brains in the legal profession, former Chief Justice Dr. Willy Mutunga and former Attorney General Prof. Githu Muigai engaged in the ‘Big Debate’ on constitutional interpretation at the Parklands Campus on June, 19, 2018.

 

Dr. Willy Mutunga opined that the Constitution has a theory of interpretation which guides the Apex Court, the Supreme Court of Kenya. A view that was challenged by Prof. Githu Muigai who opined that the constitution has no known theory of interpretation.

Prof. Githu Muigai quoted several sections of the constitution like Article 259 which guides the Judiciary to advance the rule of law and contribute to good governance. “One third of the constitution is poetry. The constitution is partly a legal document and partly a political document”, he said.  According to him, the constitution is best interpreted based on textual interpretation. This is taking the word literally as they are written on the pages of the constitution. Secondly, it can be interpreted based on structure and lastly based on ethical arguments about outcomes. He gave several previous court cases, which in his view were a good interpretation of the constitution. Majority of cases cited were those brought before the High Court to stop the 2017 elections. However grave the concerns were, most cases were thrown out. “Outcome of the cases should be logical, coherent and objective. Laws need inner morality and this helps in fidelity to the law. Otherwise, our Judiciary and judges are bound to be loose cannons and mere activists. We need a theory of interpretation that is pragmatic,” he said.

The former Attorney General pointed out some of the failures during his tenure, one of them being unable to pass the gender bill. “I had three bills on gender issues and as the State Law Office, we failed to pass them”, he noted. Prof. Githu pointed out that the theory of interpretation of the constitution should be ‘minimalist and not maximalist’.

The Constitution of Kenya 2010 has been hailed as transformative and Prof. Githu concurred. Among the transformations in the constitution is devolution and bill of rights. Devolution, he pointed out has been successful and has helped spur growth and development in many parts of the country.

The lively 2 hour debate was moderated by Citizen TV Journalist Mr. Linus Kaikai who is a Post Graduate law student at the University of Nairobi. The event was attended by staff and students from the University of Nairobi, School of Law and two staff members from Harvard University.

Expiry Date: 
Thu, 2019-12-26 (All day)