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CLS 107 MAY TO AUGUST 2011 LESSON 1 & 2

CHARLES B G OUMA LLB MLB ADJUNCT FACULTY

Lesson Content
1. Preambular Provisions 2. Directive principles of State Policy 3. Constitutional construction and interpretation 4. Enforcement of constitutional provisions 5. Limitations on fundamental rights and freedoms 6. General Provisions of the constitution 7. Amendment of the constitution 8. The effective date 9. Supremacy of the constitution 10. Additional sources of law

Reading list-Texts
1. Motola and Ramaphosa (2002) pp 13- 126 2. Preambular Provisions; Excerpts from Wiki Pedia 3. Ambani and Kibwana; (2005) The case for constitutional articulation of directive principles of state policy in Kenya 4. Muthoni Thiankolu (2007)Landmarks from El Mann to the Saitoti Ruling 5. Phillip Kichana; The High Court judgment in the Timothy Njoya and others versus CKRC and the AG

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Reading List
Ongoya Z E; Patrick Ouma Onyango and 12 others vs. The Honourable Attorney general and 2 others: a classical case of misapplying and dis-applying jurisprudence? Directive Principles in the constitution of India and Uganda Preamble to the constitutions of the USA and Kenya The new constitution of Kenya; an analysis by Christopher Ram

Reading List-Case Law: KUT

1. El Mann vs. AG [1969] E.A. 357 2. Githunguri vs. R 1986 KLR 1 3. Felix Njagi Marete vs.- The AG [1987] KLR 690, 4. Joseph Maina Mbacha and 3 ors vs. AG HC Misc 385 of 1989 5. Matiba vs.- The Attorney General Misc. Application No. 666 of 1990 6. Crispus Njogu vs. AG (H.C. CR. Application No. 39 of 2000) 7. Charles Onyango Obbo vs Uganda

Reading List-Case Law: KUT

5. Misc APP No 302 of 200 Stephen Mwai Gachiengo 6. Mary Ariviza v Interim Independent Electoral Commission of Kenya & another [2010] EKLR 7. CREAW and 6 ors vs. AG HC Petition NO 16 OF 2011 8. Jesse Kamau & 25 others v Attorney General [2010] EKLR 9. Timothy Njoya and Others -Versus- CKRC and The Attorney General and Others, Misc. Civil Application No. 82 of 2004 ( 2004 1 KLR 261) 10. Patrick Ouma Onyango and 12 others vs. The Honourable Attorney general and 2 others HC Misc 667 of 2005 ( 2005 EKLR) 11. Ndyanabo vs. R 2001 EA 485 (TZ)

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Reading List :Case Law (SA)

1. Makwanyane vs S 1995 (6) BCLR 665 (CC) 2. Du Plessis and ors vs De Klerk and ors 1996 (5) BCLR 658 (CC) 3. Larbi-Odam and ors vs.MEC for Education and anor. 1997(12) BCLR 1665 (CC) 4. National Coalition for Gay and Lesbian Equality and ors vs Minister for Home and ors 200 (1) BCLR 39 (CC) 5. Transvaal Agricultural Union vs. Minister of Land Affairs & anor. 1997(2) SA 621 6. S vs. Zuma 1997 (2) SA 621 CC

Reading List :Case Law-US

1. McCulloch vs. Maryland 17 US 316 2. Madbury vs. Madison 5 US I (Cranch) 137.1803 3. Morrison vs. Olson 487 US 654 4. NYT vs. Sullivan 376 U.S. 254 5. Lochner vs. New York 198 US 45 6. Scott vs. Sanford 60 us 393 7. Scott vs. Emmerson 15 Mo 576 8. Roe vs. Wade 410 US 113 9. IPP vs. Casey 10. BOE vs. Rice

Part 1
Preamblular Provisions and Directive principles of state policy

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The preamble
Lesson objectives At the end of this topic you should be able to
1. 2. 3. 4. 5. 6. 7. Define a preamble Define directive principles of state policy Explain the purpose(s) value(s) of directive principles Discuss the justiciability of the preambular provisions or directive principles Enumerate some countries with directive principles in their constitutions Enumerate the directive principles, if any, in the new constitution Make a case for the inclusion of the directive principles in the new constitution

What is a preamble?
A preamble is an introductory and explanatory statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute. It is distinct from the long title or enacting formula of a law.

What is a preamble?
A preliminary introduction to a statute or constitution (usually explaining its purpose) It sets out the historical, cultural, and political reasons for the drafting of the statute or Constitution. A preliminary introduction, usually to a formal document Synonyms
Foreword, introduction, preface, preliminaries, prelude, prolegomena, prologue

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Example of a preamble
The Preamble to the United States Constitution is: A brief introductory statement of the Constitution's fundamental purposes and guiding principles. In general terms it states, and courts have referred to it as reliable evidence of, the Founding Fathers intentions regarding the Constitution's meaning and what they hoped it would achieve. Source Wikipedia

Preamble of the US constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Source: wikipedia

What are directive principles of state policy?

If fundamental rights are a kind of guarantee to establish political democracy, the directive principles of state policy are instruments to bring socio-economic democracy. They prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State

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What are directive principles of state policy?

The Directive Principles of State Policy are guidelines to be kept in mind while framing laws and policies. These provisions are usually are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country

What are directive principles of state policy

The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws.

History
Declaration of the rights of man-France Declaration of independence of American colonies Irish Constitution UN Charter Indian Constitution

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Characteristics
They are not justiciable They are aspirational They are expresses in broad terms May impose duties and responsibilities on citizens

Purpose
1. They are fundamental to the governance of the country 2. They guide executive legislative and judicial action 3. They are a yardstick of performance 4. They act as a check on the government 5. Aim to create economic and social democracy through the welfare state 6. Aim to create social and economic conditions under which the citizens can lead a good life

Value
1. They are a guide to constitutional interpretation 2. They guide future amendments 3. They act as a touchstone to the validity of laws 4. They help to avoid ad hoc uncoordinated and unprincipled changes to the constitution 5. They are an indication of the intentions of the framers of the constitution

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Countries with directive principles

1. 2. 3. 4. 5. 6. US Ireland India UN Uganda Tanzania

Preamblular/Directive principles in the new constitution

We, the people of Kenya 1. ACKNOWLEDGING the supremacy of the Almighty God of all creation: 2. HONOURING those who heroically struggled to bring freedom and justice to our land: 3. PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation: 4. RESPECTFUL of the environment, which is our heritage, and determined to sustain it for the benefit of future generations:

Preamblular/Directive principles in the new constitution

1. COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation: 2. RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law: 3. 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: 4. ADOPT, ENACT and give this Constitution to ourselves and to our future generations. GOD BLESS KENYA

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Something to think about.

Is the inclusion of the preamble sufficient? Was it necessary? Should the preamblular provisions be specifically referred to as directive principles Is there a difference between preamblular provisions and directive principles

Sub-topic 2
Constitutional construction and interpretation

Lesson objectives
At the end of this lesson you should be able to ; 1. Discuss the different approaches to constitutional construction and interpretation 2. Explain the fundamental difference between the different approaches 3. Cite and discuss case law on constitutional interpretation from KUT and SA US 4. Discuss the underlying social economic legal and political issues underlying the principles governing the various approaches to constitutional construction

and interpretation

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Interpretation
Please read Motola and Ramaphosa (2002) pp 13- 126 ( will make it available in the copy shop between today and Thursday next , thereafter it will be in the reference section)

The basis for constitutional interpretation

Per Ramaphosa and Motola We have moved from the west minister model legislative supremacy to constitutional supremacy There are provisions of the constitution that do not lend themselves to precise measurement and often call for a value judgment in an area where opinions may differ Many provisions of the constitution , especially the Bill of Rights, are couched in open ended terms

The basis for constitutional interpretation

The constitutional court is the final arbiter over the constitution and has a right to determine what the vague provisions mean Judges use two approaches
1. Constitutional interpretation is a wholly discretionary exercise that treats the entire text as capable of many meanings 2. Constitutional interpretation is wholly mechanical, the meaning of the constitution is embedded in the constitution itself

Per Ramaphosa; Neither is wholly satisfactory.

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Per Evans Hughes former CJ of the US

We are under a constitution but the constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the constitution Per Ramaphosa and Motola this is an erroneous and dangerous position

Per Kentridge J ; S vs. Zuma & others 1995 (2) SA 642 CC

I am aware of the fallacy of supposing that general language must have a single objective meaning. Nor is it easy to avoid the influence of ones personal intellectual and moral precepts. But it cannot be too strongly stressed that the constitution does not mean whatever we might wish it to mean if the language used by the law giver is ignored in favour of a general resort to values, the result is not interpretation but divination

Per Ramaphosa and Motola

Many provisions of the constitution have settled meaning and we do not have to go to the justices to interpret them However many provisions of the constitution are not self defining and have been and will be objects of judicial interpretation

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Owen Fiss: Constitutional Interpretation Constitutional interpretation is a dynamic interaction between the reader and the text. There are two concepts involved 1. Disciplining rules or theories of interpretation; There are rules limits and standards by which the validity of interpretation is judged 2. The interpretative community; Recognizes those rules as authoritative

Owen Fiss: Constitutional Interpretation

Judges have developed different approaches and theories of interpretation The idea is to avoid subjective interpretation of the constitution The judges are bound by and constrained by these principles The principles seek to limit the value determinations judges make in constitutional cases These rules are authoritative within the interpretative community of professionals of which judges are part

Methods of interpretation
There are different approaches non of which is inherently superior to the others It is possible to use more than one approach in the same case The important thing is that the approach should enjoy broad acceptance within the interpretative community But there is need for consistency in the application of the approaches

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Two Broad categories

The many methods, theories and principles can be classified into two broad categories Interpretativist- Formalistic or strict construction. Restricts interpretation to the text of the constitution. Extrinsic sources seriously discouraged Non- Interpretativist- goes beyond the text. Heavy reliance on extrinsic sources. Charecterised as the living constitution approach

Politics vs. Law

The issue is whether courts are permitted to use social policy as an aid to interpretation Per Mohammed J in Makwanyane ( 1995 (3) SA 391; There is a difference between the political role played by the legislature and the legal role played by the judiciary

Judicial activism vs. Judicial self restraint

Non-Interpretativists insists the law and cannot be divorced Judicial self-restraint gives more deference to the legislature Judicial activism asserts that the judiciary is designed to be the intermediary between the people and the government in order to keep the government within the limits imposed by the constitution

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Methods of interpretation (10 of them)

1. 2. 3. 4. Textualism Intent of the framers Precedent Living constitution as an open ended approach
The constitution as a living structure The purposive approach Protection of vulnerable groups: representation-reinforcement The living constitution and problems with respect to socio-economic rights

Methods of interpretation (10 of them)

6. Background values used to interpret the constitution 7. Influence of international and foreign law 8. Reliance on common law 9. Influence of traditional African society 10.African contribution to human rights jurisprudence

Constitutional interpretation in Kenya

In this part of the lesson, we consider the following
1. Flash back to the old constitutional dispensation and the judicial interpretation of constitutional provisions 2. Interpretation of provisions on fundamental rights and the question of locus standi. 3. Interpretations on the issue of limitation of actions arising from violation of constitutional rights

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Constitutional interpretation in Kenya

Not so long ago many courts in Kenya simply refused to enforce the bill of rights The ostensible reason was that the Chief Justice had not made rules under s 84(6) pursuant to which the enforcement proceedings could be brought These rules were in fact not made until 2001 by the former CJ and the rules were named the Chunga rules after the CJ. Later they were amended and renamed the Gicheru rules

Githus Verdict EALJ 2004

The judiciary has serious problems with constitutional interpretation?. Is the constitution a
political charter or a legal document?

Githus Verdict EALJ 2004

The courts had adopted an unprincipled eclectic pedantic inconsistent and conservative approach to constitutional interpretation approach to constitutional interpretation (Githu Muigai another look at the problem of constitutional interpretation 2004)

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El Mann vs R 1969 EA 357

The constitution is to be construed like any other act of parliament

Gibson Kamau Kuria 1985

The rights under the bill of rights were unenforceable because the chief Justice had not made rules for their enforcement

Matiba vs- The Attorney General Misc. Application No. 666 of 1990
An applicant in an application under section 84(1) of the Constitution is obliged to state his complaint, the provisions of the Constitution he considers has been infringed in relation to him and the manner in which he believes they have been infringed.

Those allegations are the ones which if pleaded with particularly invoke the jurisdiction of the court under the section.

It is not enough to allege infringement without particularizing the details and manner of infringement.

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Joseph Maina Mbacha & 3 ors vs. AG 1989

Justice Norbury Dugdale held that the enforcement provisions were as dead as a dodo because the CJ had not made rules under s 84(6)

Gitobu Imanyara vs. AG 1991

The provision under s 2A that Kenya shall be a single party state did not infringe on the freedom of association under s 70(b) and 80

Fotoform & 3 ors vs. AG 1993

Per Dugdale J

Because of s 16 of the Govt Proceedings Act, Cap 40,an injunction could not issue pursuant to s 84, against the government to prevent a violation of a right under the bill of rights This was despite the clear wording of s 84 which does not limit the type of orders under that section

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Mwangi Stephen Muriithi vs.AG 1981

Civil servants in Kenya hold office at the pleasure of the president

John Harun Mwau vs AG 1988

A citizen could not challenge the action of the state to deny him a passport on the rounds that it denied him his freedom of movement

Raila Odinga vs AG 1988

A citizen could be detained without being given reasons for such detention

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Felix Njagi Marete vs- The AG [1987] KLR 690,

Shields J. The Constitution is not a toothless bulldog nor is it a collection of pious platitudes. It has teeth and in particular these are found in section 84. Both section 74 and 84 are similar to the provisions of other commonwealth constitutions. It might be thought that the newly independent states who in their constitutions enacted such provisions were eager to uphold the dignity of the human person and to provide remedies against those who wield power.

Njoya
The constitution is not an act of parliament

The court should adopt a broad, liberal, and purposive, construction The constitution embodies certain values and principles and it is the duty of the court to interpret the constitution in such a manner as to give value to those principles

Samatta CJ Ndyanabo vs.AG 2001 EA 485 (TZ)

The constitution is a living instrument having a soul and a consciousness of its own

It must not be crippled with narrow and technical interpretation

It must be construed in tune with the lofty purposes for which it was made

It must be construed liberally and purposively

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Crispus Njogu vs AG 2000

The constitution is not an act of parliament it must be interpreted broadly or liberally not in a pedantic way

Saitotis case 2009

R vs. Judicial Commission of Inquiry into the Goldenberg Scandal Ex Parte George Saitoti

Hon Saitoti argued that prosecuting him on the strength of the Goldenberg report violated his rights to a fair trial under s 77.

The court agreed

Post Moi
Dominic Arony Amolo vs the Attorney General , a sum of Kshs.2.5 million was awarded in the year 2005, for similar violations;

Dr. Odhiambo Olel vs the Attorney General, HCCC (Kisumu) No.366 of 1995, a sum of Kshs.12 million was awarded, including exemplary damages of Khs.4 million;

James Njau Wambururu vs the Attorney General (supra), where Kshs.800,000/= was awarded in;

Rumba Kinuthia vs the Attorney General, HC. Misc. App. No.1408 of 2004, a sum of Kshs.1.5 million was awarded in 2008.

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Dominic Arony Amolo vs The Attorney General 2003

The plaintiffs claim filed in the year 2003 which was more than 20 years after the cause of action arose, was allowed.

Constitutional Application No.128 of 2006 in the matter of Lt. Col. Peter Ngari Kagume & others vs the Attorney General

Nyamu J. (as he then was), considering a similar suit stated: The petitioner had all the time to file their claim under the ordinary law and the jurisdiction of the court but they never did and are now counting on the constitution. None of the petitioners has given any explanation as to the delay for 24 years. In my view the petitioners are guilty of inordinate delay and in the absence of any explanation on the delay; this instant petition is a gross abuse of the court process

Constitutional Application No.128 of 2006 in the matter of Lt. Col. Peter Ngari Kagume & others vs the Attorney General

. In view of the specified time limitation in other jurisdictions the court is in a position to determine what a reasonable period would be for an applicant to file a constitutional application to enforce his or her violated fundamental rights. I do not wish to give a specific time frame but in my mind, there can be no justification for the petitioners delay for 24 years. A person whose constitutional rights have been infringed should have some zeal and motivation to enforce his or her rights. In litigation of any kind, time is essential as evidence may be lost or destroyed and that is possibly the wisdom of time limitation in filing cases.

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Wachira Weheire v Attorney- General [2010] eKLR

The limitation of actions act does not apply to actions brought to enforce fundamental rights and freedoms

Wachira Weheire v Attorney- General [2010] eKLR

We have considered the case Lt. Col. Peter Ngari & Others -Vs- Attorney-General (supra), which was relied upon by the defendant. We note that the Judge did not say that there was a limitation period for filing proceedings to enforce constitutional rights, though he found no justification for the delay in that particular case.

Wachira Weheire v Attorney- General [2010] eKLR

We find that, although there is need to bring proceedings to court as early as possible in order that reliable evidence can be brought to court for proper adjudication, there is no limitation period for seeking redress for violation of the fundamental rights and freedoms of the individual, under the Constitution of Kenya. Indeed, Section 3 of the Constitution provides that the Constitution shall have the force of law throughout Kenya, and if any other law is inconsistent with the Constitution, the Constitution shall prevail

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Comparing the Moi and Post Moi Era

Interpretation in the Moi era- Largely pedantic and restrictive but with some rare gems like Madan J in Githunguri and Shields J in Felix Njage Marete. Towards the end of the Moi era the courts became notably emboldened Interpretation Post-Moi Largely liberal and purposive but we still have lapses like those of Nyamu in Peter Ngare Karume

The new constitutional dispensation

Enforcement of constitutional provisions enhanced by

1. 2. 3. 4.

Prescribing a purposive interpretation Incorporating international law Declaratory not constitutive conferment of rights Locus standi facilitated not frustrated through devices like amicus curiae and representative action 5. Technicalities of procedure and formalities are minimised 6. Invalidating acts done in contravention of the constitution

The new constitutional dispensation

Access to justice enhanced through 1. Reasonable or no court fees 2. Jurisdiction extended to subordinate courts

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Construing the Constitution

259. (1) This 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. (2) If there is a conflict between different language versions of this Constitution, the English language version prevails.

Article 259 adopts a non Interpretativist approach to constitutional interpretation

The law is always speaking!

Article 259(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things

Case Law on construction (SA)

1. Makwanyane vs S 1995 (6) BCLR 665 (CC) 2. Du Plessis and ors vs De Klerk and ors 1996 (5) BCLR 658 (CC) 3. Larbi-Odam and ors vs.MEC for Education and anor. 1997(12) BCLR 1665 (CC) 4. National Coalition for Gay and Lesbian Equality and ors vs Minister for Home and ors 200 (1) BCLR 39 (CC) 5. Transvaal Agricultural Union, S vs. Zuma 1997 (2) SA 621 CC

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Case Law on construction-US

McCulloch vs. Maryland 17 US 316 Morrison vs. Olson 487 US 654

Case Law on construction KUT

1. 2. 3. 4. 5. 6. 7. Ndyanabo vs R Njoya and 6 ors vs AG and ors Jesse Kamau vs AG Crispus Njogu vs R Paddy Ouma Onyango vs AG Stanley Githunguri vs R Charles Onyango Obbo vs Uganda

Part 3 :Enforcement

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Lesson objectives
At the end of this lesson, you should be able to 1. Discuss the general and specific enforcement provisions of the new constitution 2. Identify and explain the constitutional issues raised in constitutional enforcement 3. Discuss the typical constitutional enforcement mechanisms 4. Discuss the enforcement mechanisms adopted by the new constitution 5. Discuss the limitation on fundamental rights and freedoms 6. Explain how the new constitution expands access to justice 7. Explain the progressive approaches to constitutional enforcement in the new constitution

Enforcement provisions
General enforcement provisions article 258 Specific enforcement provisions On consequential legislation Article 261 On environmental rights Article 70 On human rights Article 22

The general provisionsEnforcement of this Constitution 258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

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The general provisionsEnforcement of this Constitution

258 (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members

Constitutional Issues on Enforcement

1. 2. 3. 4. Judicial review and democracy Centralised vs decentralised jurisdiction Access to court Politics and the appointment of judges

Typical Enforcement mechanisms

1. 2. 3. 4. 5. 6. 7. 8. 9. The courts discretionary power Reading down-presumption of constitutionality Reading in- include the excluded Severance-only to the extent of the inconsistency Invalidations and striking out Mandamus Damages Declaration Injunction

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Enforcement Mechanisms in Article 23

Article 23 Powers of the court ( include) 1. Declaration of rights 2. Injunction 3. Conservatory order 4. Declaration of invalidity 5. Order for compensation 6. Order of judicial review See article 259(4)(b) for meaning of include

Enforcement mechanisms
See article 261 (5) to (9) on the power of the court to compel parliament to enact consequential legislation to operationalise the constitution

Enforcement of Bill of Rights

22. (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

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Enforcement of Bill of Rights

22 (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members.

Enforcement of Bill of Rights

22(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that (a) the rights of standing provided for in clause (2) are fully facilitated; (b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;

Enforcement of Bill of Rights

22(3)(c) no fee may be charged for commencing the proceedings; (d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities and

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Enforcement of Bill of Rights

(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court. (4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.

Part 3 Specific application of rights Interpretation of this Part 52. (1) This Part elaborates certain rights to ensure greater certainty as to the application of those rights and fundamental freedoms to certain groups of persons. (2) This Part shall not be construed as limiting or qualifying any right.

Enforcement of environmental rights

70. (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

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Enforcement of environmental rights-Article 70

(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate (a) to prevent, stop or discontinue any act or omission that is harmful to the environment; (b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or (c) to provide compensation for any victim of a violation of the right to a clean and healthy environment. (3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

Limitation of rights and fundamental freedoms

24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

Limitation of rights and fundamental freedoms

(a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

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Access to justice
48. The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

5 progressive approaches to enforcement

1. Expanded locus standi 2. Representative action permitted and broadened 3. Access to justice enhanced 4. Purposive interpretation adopted 5. International standards integrated into our laws

Constitutional Interpretations Since August 2010

HCC Election Petition No 16 of 2011 CREAW and 7 ors vs AG

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Part 4-General

Lesson Objectives
At the end of this lesson you should be able to 1. Discuss the transitional provisions of the new constitution 2. Explain the concept of the effective date 3. Explain how the new constitution may be amended 4. Discuss the implications of the inclusion of international law in the sources of law in Kenya 5. Discuss the concept of constitutional supremacy

Transitional provisions
Article 261 consequential provisions Article 262 transitional and consequential provisions esp. Clauses 4-9 Article 264 repeal of the existing constitution Sixth Sch. Reg. 7 existing laws

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The effective date

263. This Constitution shall come into force on its promulgation by the President or on the expiry of a period of fourteen days from the date of the publication in the Gazette of the final result of the referendum ratifying this Constitution, whichever is the earlier

Amendments
Articles 255 to 257
1. By parliament 256 2. By popular initiative 257

Amendments needing referendum 255(1) Amendments that do not need referendum 255(3) See Articles. 2(2) 10 and 11 sixth sch. Does the current parliament have the power to amend the constitution?

Amendments
Njoya vs AG Paddy Ouma Onyango vs AG Kanjama and Mungai Sunday Nation 22/2908-2010

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Supremacy Of The Constitution

2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. (2)No person may claim or exercise State authority except as authorised under this Constitution.

Supremacy Of The Constitution

(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ. (4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

Additional Sources of Law

(5) The general rules of international law shall form part of the law of Kenya. (6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

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Case law on supremacy

1. ,Madbury vs. Madison, Roe vs Wade, IPP vs. Casey, NYT vs. Sullivan ,Lochner vs. US, BOE vs. Rice, 2. Makwanyane vs. R, 3. Okunda vs. R 4. Margaret Magiri Ngui vs. R 5. Stephen M Gachiengo vs. AG, 6. LSK vs. AG 7. KBA vs. Minister of Finance 8. Njoya vs. AG 9. Jesse Kamau vs. AG 10. Godfrey Ngotho Mutiso vs. R

END OF LESSON 1 and 2 ANY COMMENTS?ANY QUESTIONS?

CHARLES B G OUMA LLB MLB ADJUNCT FACULTY CUEA

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