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.”

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The Law is Broken: The Doctors’ Strike Isnt The Only Thing that May Be Unconstitutional

It is Day 3 of the on-going doctors’ strike by members of the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) and despite their willingness to try and avert a nation-wide health crisis through negotiation and mutual settlement, the government has decided to play hard ball with a profession that literally holds the lives of Kenyans in its hands.

Many have argued that the Constitution is on the side of the doctors’ two fold: firstly it protects their right to take industrial action and secondly the State is under a positive obligation to protect the fundamental rights and freedoms of all Kenyans both from a health care perspective as well as from a general human rights perspective.
However, constitutional rights are not absolute especially where there are competing rights such as the right of the general public to the delivery of essential services, which arguably would include health care services.

Before we discuss these weighty matters of legality, let’s start from the beginning.

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“Regional Balancing” and the Bastardization of Kenya’s Constitution

There is no doubt that the Government is the single largest employer in this country and I am but one of the many faceless public servants behind the scenes doing my bit to help run this great nation of ours. Beyond being a public servant, I am a Kenyan and it is in this capacity that I stand on this here DR Soapbox to denounce a dangerous practice slowly institutionalising itself within the Public Service.

Two words: Regional balancing.

In its simplest form, regional balancing is about public officials and administrators making final decisions on the composition of government offices based on the ethnicity of prospective and current staff.

The relevant legal provision underpinning this practice is found under Article 232(1)(h) and (i)(iii) of the Constitution:

“The values and principles of public service include… representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of the members of all ethnic groups.”

So on the face of it, one can clearly agree that regional balancing is important in that it allows for greater representation of people from various ethnic backgrounds in matters of exercising public power and decision-making. However, I believe that this notion is being distorted much like ethnicity is often used negatively by politicians to antagonise and divide the populace along tribal lines.

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Remembering Wangai Maathai: Putting Public Interest First in Constitutional Kenya

I came across this old cutting (pictured above) by chance and it got me thinking about what it means to have political leaders who actually put the public interest first. The then MP for Tetu the late Prof. Wangari Maathai told fellow members of parliament that she was ready to surrender her parliamentary seat and safeguard the Kenyan forests.

In any constitutional democracy, the functions of making, interpreting and enforcing the law cannot be said to be the sole preserve of any one branch of government. Take law-making (traditionally the preserve of Parliament), our Courts and the Cabinet too make laws through precedents and policies respectively. The late Prof. Maathai understood this fact and worked tirelessly to ensure that our statutes, precedents and policies regarding the environment reflected the wishes of Kenyans for a clean environment where natural resources are used in a sustainable manner to meet the needs of the present as well as future generations.

She showed us that government’s interests and the wider public interests are not always alligned as they ought to be. Therefore it is up to people of good will to take up public interest issues that are dear to them and ensure that the government respects the wishes of those whom it governs.

In the 1989 High Court case of Wangari Maathai v. Kenya Times Media Trust Ltd, Maathai took the Kenya Times Media Trust Ltd to court in order to prevent the latter from constructing a high-rise building in a public park in Nairobi called Uhuru Park. Maathai alleged breach of local government laws and brought a representative suit on behalf of the public. The court ruled that she did not have the legal standing (locus standi) to bring a representative suit on behalf of the public and that under the Constitution only the Attorney General could institute suits on behalf of the public. This was a clear example of government interests being at cross purposes with the wider public interest.

With this backdrop in mind, let’s look at the prevailing situation in Kenya today.
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