Towards a General Approach to Jurisprudence; The 2010 Constitutional Imperative

Abstract

It has been argued more than once that the 2010 Constitution was enacted and adopted by the Kenya people with the intention and expectation that the Constitution would configure and transformative the Kenyan society from an authoritarian society to an egalitarian and caring society where the rule of law is not only respected but also where decisions by courts find their locus in constitutional values. In the words of Ettienne Mureinik, there should be a, “…shift from a culture of authority to a culture of justification – a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion.”

Mureinik was definitely writing his views based on the South African Constitution and he had his eyes set on the South African society which had been overly oppressive and racially divided but he managed to capture the demands of a transformative constitution. Closer home, our Constitution seeks to do the same, which is transform the Kenyan society from a culture of authority to a culture of justification. This is bearing in mind that Kenya is coming from an authoritarian state and a society where there has been social injustices and social inequalities. The 2010 Constitution seeks to address this.

Before the promulgation of the new 2010 Constitution, the judicial system was flawed and the judges, when making judicial decisions, were engaged and preoccupied with what is referred to as ‘giving effect to the intentions of the legislature.’ The ‘average’ Kenyan judge was a positivist. The judges relied on what Langa refers to as the say-so of the parliament. The consequences of this was a highly positivistic and a formalistic mode of judicial adjudication where nothing lay beyond the posited law. In advancing the ideals of authoritarianisms, the governments of the day strongly advocated for the separation of powers doctrine. Judges followed suit and many pre-2010 decisions bear witness to this.