The Challenge of Developing Indigenous and Patriotic Jurisprudence in Kenya

The following excerpts are taken from the Speech given by Chief Justice Willy Mutunga, President of the Supreme Court and Head of the Judiciary during the Admission to the Roll of Advocates on 19, June 2012 at the Supreme Court of Kenya.

“Some have spoken of the new Constitution as representing a second independence. This is when our institutions, and the people, are to come into their own. When the legislature will truly act as the representatives of the people, and the supervisors of the executive. When the executive will put the interests of the nation first, above the interests of tribe, individual and class. And when the curse of impunity will be ended and the rule of law prevails.

This will only happen if we all, including the judiciary, play our part, for the forces of resistance are strong.

By the rule of law, I do not mean the sort of mechanical jurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court to reach an apparently technically sound decision that the election of a sitting President could not be challenged because the opponent had not achieved the pragmatically impossible task of serving the sitting President in person. It was mechanical jurisprudence that fuelled the decision of a High Court that the former section 84 of the old Constitution (on enforcement of Bill of Rights) was inoperative because the Chief Justice had not made rules on enforcement as he was obligated by the same Constitution to do.”

(…)

“It is perhaps remarkable that, although disappointment with the judiciary was at least as great among wananchi as frustration with politicians, it is also true that the Kenyan people chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

But what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. Patriotism requires putting love of country above love of self. For lawyers and judges, it does not mean putting country above justice. I conceive that it requires us to develop the law in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision.”

(…)

“The Constitution must be a frame of reference for every lawyer and every judge. Not just those who find themselves sitting in the Constitutional and Human Rights Division, or in criminal trials but those of you who deal with company law, land, commercial transactions, negligence, labour law etc. Again the Constitution makes this clear: that national values bind us all not only when we apply or interpret the Constitution itself, but when we apply or interpret any law. And those values include, of course, the rule of law, but also human dignity, equity, equality, social justice, non-discrimination, protection of the marginalised, integrity, transparency and accountability. And “any law” would include, in my view, unless and until counsel convinces me otherwise, rules of the common law, as well as statute.”

(…)

“By “patriotic and indigenous” I do not mean insular and inward looking. The values of the Kenyan Constitution are anything but. We can and should learn from other countries. My concern, when I emphasise “indigenous” is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of other jurisdictions and courts, however, distinguished … And, indeed, the quality of our robust, indigenous and patriotic jurisprudence should be a product for export to these distinguished jurisdictions. After all our constitution is the most progressive in the world and we could make the world a better place by exporting our quality jurisprudence.
This task involves a partnership: between the judiciary, the profession and scholars. I hope that the bar, too, will respond to the challenge.”

(…)

“And, to return to where I really began: I believe we shall only do this through the rigorous but creative use of the basic values of our Constitution, indeed through the judiciary’s becoming the embodiment of those values, especially of patriotism, social justice and integrity.
I hope through this speech I have managed to spur a constructive debate among all of us about our grundnorm; the ultimate binding instrument and covenant that Kenyans have inscribed their social contract with the state and with each other which we are called on to not only interpret but to fulfill and bring life.”

The parting shot for me was this off-the-cuff remark the CJ made towards the end of the speech:

“…Our jurisprudence cannot be legal-centric, it must place a critical emphasis on multi-disciplinary approaches and expertise. We always say that we are ‘learned’ but we should be students of economics, political science and other disciplines because the constitution requires us to be broader in our knowledge. So, we should actually think very seriously about dropping the nonsense of ‘learned’ because, invariably it shows our ignorance of other disciplines!”

6 thoughts on “The Challenge of Developing Indigenous and Patriotic Jurisprudence in Kenya

  1. Besides your choice, I have found this to be a choice remark……..

    “…………the ultimate binding instrument and covenant that Kenyans have inscribed their social contract with the state and with each other which we are called on to not only interpret but to fulfill and bring life……”

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