Linus Kaikai: My Dean, Professor Kiarie Mwaura, Professor Austin Bukenya; who is making his way down to audience, Professor Patricia [Kamberi 00:00:46] Mbote, Professor John Mugane, Dr. Collins Odote, Professor [Sihanya 00:00:56] if he’s here, and my colleagues, it is a big honor for me today to moderate a debate between two of Kenya's most eminent legal minds. In older good days when debates were easier, I moderated a presidential debate involving eight candidates. Please understand my challenge this morning that I'm going to face two of the most brilliant legal minds in the profession of the law in this country. And also two of people who have served in very high places within the judicial system of our country. Now, interpretation of the constitution; the old days … And Professor Mbote did mention about Wanjiku … When I was a young journalist and the KANU regime was tear-gassing pro-reform advocates, we found Professor Wanjiku Kabira and we actually thought we found the Wanjiku Moi was talking about.
I've been lucky to cover the transition from those days all the way to the 4th of August when the constitution was ratified through a referendum. For those of you who are old enough, you voted in that referendum. And then the promulgation on the 27thof August, which I also covered. That day we were told by our analyst that for those who missed December 12th, 1963, August 27, 2010 was your moment because it was a big constitutional moment. The nation was happy. It was going through our process of self-renewal, but it also counts that implementation of our constitution depends on proper and accurate interpretation. And it's also been said that the judiciary is the final authority in the interpretation of the constitution. But they’re other challenges and I'm sure they'll be brought out in this debate, that include interpretation of the constitution by non-judicial bodies.
This includes players in parliament, the executive, government officials, public bodies or authorities, commissions, institutions, and even public officers. I'm looking forward to hearing the take of this most eminent personalities in the challenges that are facing the implementation and interpretation of the constitution. But I just want to go straight to the first question, the majority of us being law students. We want to hear from you, Professor Githu Muigai ; Attorney General emeritus and you Dr. Willy Mutunga; Chief Justice emeritus. My first question, and I'll give you each of you about five minutes to make your opening remarks on whether there exists a theory in Kenya to implement the Constitution of Kenya 2010. What is that theory? Let's start with Chief Justice emeritus Dr. Willy Mutunga, the microphone is right there with you.
Willy Mutunga: Good morning
Audience: Morning.
Willy Mutunga:[foreign 00:05:04]. It's always great to be back to the law faculty. Actually, the only job I loved was teaching law for eight years, but I was sacked and jailed but that is a part of the history of this faculty. Now the first question, “Does the 2010 Kenya Constitution decree theory of interpretation?” That was my argument when I was in the Supreme Court right from 2012, and it's a theory you find in many of my writings and also in the judgements descend and concurring that I wrote. And I want also to introduce [Miyawa 00:06:27], Miyawa can you stand up? Maxwell was one of our brilliant law clerks in the Supreme Court and he wrote this article which is called The Genesis or Mainstreaming Theory of Interpreting the Constitution in Kenya, which you can track the cases and the arguments. But my argument was that Article 259 and other articles, the preamble itself; Article 1, which talks about the sovereignty of the people, Article 10 has already been discussed; values and principles.
Article 20, the one that also Professor Mbote discussed, 159, Article 2, Sub-article 5 and 6 are important because they deal with international law which is part of that and maybe at some point I'll talk about that aspect of international law that has been pursued by scholars particularly abroad, Makau Mutua, Justice Ngugi who is here. There's a group there that has been dealing with what they call TWAIL, that is the Third World Approaches in International Law. And Professor Gathii as well, they have talked about these issues. So my answer is yes, the 2010 constitution decree is a theory of its own interpretation. And there are reasons for that and there are ingredients of that theory that we can also discuss. And the most important thing of course, is that the Apex Court, the Supreme Court in the case of what was called the digital migration case, The Communications Commission of Kenya, against The Royal Media and to others mainstreamed that theory. And if you’re looking into the president value of that theory now it binds all courts other than the Supreme Court, which can reverse itself AG. You are next because that’s the question.
Githu Muigai: That’s all right. The reason I became academic is because of Willy Mutunga. As I've told my students before. When I first came here 30 plus years ago, he was a bouncing young professor in his jeans and T-shirts and preaching revolution and the redemption of Africa and the world. And I was so intoxicated by that, that I owe him to this day. However, increasingly as two independent academics, jurists, comrades and friends, we have drifted apart. He holds a view of the constitution that I don't, but my respect for him has never diminished even an inch. Does this constitution contain a theory of constitutional interpretation? No, not at all. What does it contain? When you go to an art museum and see what Picasso has painted or Vincent van Gogh, the mad artist, you attribute to the painting, complicated things that never went through of Van Gogh's mind at the time.
He probably woke up, took a few whiskeys and splashed his brush on the canvas. When we wrote this constitution, because it was my great privilege to be there, I need to contextualize something. We came from a tradition where we believed and history supported that the constitution had been abused both by the Executive, by Parliament, by the Legislature and by other organs. We wrote a constitution to stop abuse. Everything that Moi had done, we wrote a provision to stop somebody from doing it in the future. We were so obsessed with that, that this constitution now contains several provisions that are unenforceable. What are we trying to say here? Two, five, nine, we are trying to say in the history of Kenya, the Judiciary has been interpreting the constitution in such a positivistic manner that it has become pedantic and nitpicking, and there is a lot of literature around that.
The doug deals and the very conservative … In some of my writing, I say these judges were not conservative. They were subversive. There were subversive of the constitution. They said things that constitution didn't say. At one point the court said ridiculous proposition, that the constitution is unenforceable because the rules required to be made by the constitution for procedure had not been made and therefore the subjunctive rule could not be enforced. That is not a conservative philosophy of law. That is a subversive philosophy of law. So we wrote two, five, nine but two, five, nine doesn't tell us anything we already didn’t know. That we shall interpret the constitution to promote its purposes, values and principles. That we already knew. That's what every judge should have been doing all along from 1963. To advance the rule of law, that's exactly what judges should be doing. Permit the development of the law.
That's what they should be doing. Contribute to good governance. This is not a theory of constitutional interpretation. It is an intention by an legislative organ to provide what in its opinion is guidance that will prevent subversion. Now, let me tell you something else that is equally shocking. The constitution is not only a legal document and if you read every page to give you a legal outcome, then you have missed something. The constitution is both a political chatter and the legal document. A third of this is poetry. If you go to page one, which I wrote myself, I think Wanjiku Kabira, my friend will confirm, I wrote this, my … “We the people of Kenya, acknowledging, honoring, respecting, committing, recognizing, exercising-“ That is not law, that is poetry. It is a part of the constitution about how do we feel about ourselves, how do we inspire ourselves into … So if you look for law in the preamble, there is no law and there won't be any law.
So what then would be a theory of constitutional interpretation. It would be this, and now I'll sit down. If you listen to the dispute within the American Supreme Court, that is a dispute about a theory of interpretation. The originalists contend that the whole constitution is to be interpreted by asking yourself one question, what did the founding fathers intend on the year they adopted the constitution? That's a very contentious question. They’re others who argue that the constitution must be interpreted from textual perspective. You stay with the text, the language of the text and the language of the text will yield the meaning of what the constitution means. That is a theory of constitutional interpretation. There are others who argue about the structure of the constitution. How is it structured? Because if you study the structure, you will study a hierarchy of institution and of values and of right.
That's a theory of interpretation. You can agree with it or disagree with it. They’re others who have an ethical argument about the outcomes and so on and so forth. So let me answer the first part of the question by saying I do not see in this constitution a theory of constitutional interpretation. I see some poetry about how judges should generally conduct themselves.
Linus Kaikai: Professor Githu has laid it out there, lifting the constitution and saying he sees nothing in it that constitutes a theory. I'd just like to give you the opportunity to go into details of what you consider the theory. What are the ingredients of that theory? Please proceed.
Willy Mutunga: I also have the argument that the reason why there’s a theory in the constitution itself is to make sure that the judges … okay? And that's what Githu was saying, the various debates about originalism, modernism that you find particularly in the American Supreme Court is actually about the judges’ intellectual, ideological, political biases. So that in the US Supreme Court you find judges who are said to be conservative, judges who are supposed to be a liberal, radical liberal, others who are radical. And they’re all in the court. So they have been given that opportunity to basically debate the theory within what you lawyers call the cannons of interpretation. My view is that the 2010 constitution, because of the history of judges interpreting either subversively as Githu says or conservatively the constitution, there was need to guard the 2010 constitution against that eventuality.
And that's why I think within the theory itself, all right, the judges in my view are supposed to be active and activist because the constitution itself is that. But I was asked to give the ingredients and that has also been discussed. What is this theory and what are the ingredients? I think Githu has said one thing that the constitution is chance staunch positivism. If you are doing jurisprudence, you know that debate. You've read about hearts, for example, the law is a law is a law… law doesn't exist in a vacuum. Law doesn't have any role to play in transformation. That debates has a pleasant genealogy among lawyers and law schools. But I think now it's settled that law has a role to play in social transformation and the constitution plays that role. So this theory chance staunch positivism, it accepts that judges make the law, that is Article 20, the invoking of non-legal phenomenon [inaudible00:20:56] when we say law does in the exist in a vacuum, we say that and that's what the Supreme Court Act says that you can go to history, you can go to economics, you can go to music, literature.
I know [inaudible00:21:19] thinks interpreting the constitution, one thing that Githu said, which is also an ingredient of this particular constitution is the objective of the constitution broadly speaking, is about subverting a status quo that we found unacceptable and a unsustainable. Okay, basically, if you want to bring it to talk about briefly is what Moi used to say, “[foreign 00:21:56]”, which is that status quo that we grew up ourselves seeing serious dictatorships, the right to vote being subverted, all the whole gametes of human rights, resources being stolen. Everything that you can think of when you look at the constitution, it's about changing that status quo. And that's why the notion of transformation is important. Now the reason why it's … We say there's a theory that when you look at it, is a merger of paradigms that problematize, interrogate and historicize all paradigms in building a radical democratic content that is a transformative.
Within the constitution people talked about law in context. You had the critical legal studies, you had the Marxist theory of state on law, you have ingredients of all this within the constitution. Bringing in the non-legal issue, the values for example, the view that this theory says that the constitution is not legal-centric, so you're not going to be using the black law dictionary to basically look up the meaning. It's more than that. It calls for multidisciplinary approach to the implementation of it. And all these are giving ingredients. It's not insular or inward looking, okay? It's a theory that says very, very, very clearly that we can build a progressive jurisprudence that we can export to other countries in the south, in Africa and globally as well.
And that international law itself, we can influence in shaping it and developing it. That is all within the theory. And I say very clearly in my writings that I derive it from the provisions of the constitution. And also the Supreme Court Act 2011. So it's again to repeat that it denies, in my view resort to by judicial officers to the common law, canons interpreting statutes and constitution that allow officers in doing so to routinely reflect intellectual and political biases. And if you read [inaudible 00:25:17] on judicial review, it's clear, he’s also saying the stick to the constitution and not use these canons. If you read Yash Ghai who I quote at some point, this is what he says. He says the reason why there’s this theory and he agrees with it. He agrees there’s a theory, he says, “Perhaps realizing its own ambitious projects and hence the vulnerability and fragility the Kenyan constitution sets through the judiciary. Its barricades against destruction of its values and the weakening of its institution by forces external to itself. And such is the responsibility of Kenya's judiciary.”
The other scholars who … not Kenyon ones … If you read what a guy called a great professor in India called Upendra Baxi , he goes into this issue of theory as well, talking about the Supreme Court, talking about judges and politics.
Githu Muigai: First I want to affirm that everything CJ says about approaches to constitutional interpretation. I would concede. I would concede that the constitution must be interpreted holistically. If we ever didn't do that, then we were very negligent. Every statute should be interpreted holistically. Every statute should be interpreted to be purposeful, to give effect. If there is a freedom of information act, you must interpret to give freedom to information. So I concede everything that CJ has said, but I want to come back to why do we need clarity? Why do we need clarity on how to interpret the constitution? Why should we be very, very worried of woolliness? Why would we be worried if our judges were woolly? It is because a theory of interpretation should be logical. It should be logical. Even the lay person who hears this outcome of a case should say, “That makes sense”. It is logical. It is consistent. It is coherent. It is predictable. It is objective.
This is what the very old teachers of law now discredited, like Lon Fuller were teaching 90 years ago. They were teaching the inner morality of law. Law must have an inner morality. It is that inner morality that allows fidelity to law. If there is no fidelity to law, a judge is a loose cannon. When he wakes up in the morning he says, ”I want to advance the ends of democracy. Kenya is a backward underdeveloped democracy. I, Mr. Justice Kamau [foreign 00:29:26] Njoroge I want to advance the frontiers of democracy,” not his job above his pay grade. The frontiers of democracy have been codified by the constitution to be extended and defended by elected officials whom the people periodically call back and say, “We had what you said in the house. You don't represent us.” One of the most important arguments against an activist judiciary is because the judiciary is counter majoritarian. Who elected them?
With all due respect to my teacher, but we are now talking the theory. Who elected judges for them to decide parliament is full of idiots and I am Mr. Kamau [foreign 00:30:34] Njoroge must protect the population of Kenya. So parliament has said in very clear black letter law. “No person shall be eligible to receive higher education loans if that person has not demonstrated A-B-C-D.” Parliament is making policy choices that politicians ought to make. We have a judiciary sometimes that says,” Mr. Minister for transport, you have said you have banned [foreign 00:31:25] that have less than 14 passengers.”
“Ah, that's not good. Why don't we put it at seven.” That judge is not interpreting law, he's not defending democracy, he is an outright loose cannon. He has no side power in law. Now … so for me what scares me is that you can have a judiciary that is activist in both directions. During Moi’s time, a subversive judiciary would say ,“The president is above the law. You cannot question a minister.” And it would go on and on and on. That is very scary. But today with the same set of progressive tools, you can have a judiciary that says it will make law, it will override parliament, it will override its own binding pris-
Let me give you an example which may probably show you how dangerous this is. A week ago, the High Court in Kenya made what I thought was an amazing declaration. It stated that the penal code provisions on what some broadly are called anti-sodomy laws are not inconsistent with the constitution. To my mind, I entertain no doubt whatsoever that that is not an interpretation of the law. It is a baggage of inarticulate premises. Either they come from religion or custom or culture or wherever but they have nothing to do with the interpretation of the constitution, because this is what the binding quote of a bill president on the matters says. The Court of Appeal stated that a physical inspection of a Kenyan to determine whether or not they had participated in an unnatural act was unconstitutional. That law is not changed. For the high court then to say that there is sex against the order of nature which can be determined not to invade the privacy protected by the constitution.
In my view, that is precisely the sort of judicial activism in the opposite direction. So what we need to do? We need a theory of interpretation that is pragmatic, that is consistent, that speaks to the canons of interpretation that we can critique because they are objective. Let me finish by saying, what worries me most about the Supreme Court today, and I have said that to the Supreme Court the number of times I have appeared there, the Supreme Court of Kenya does not recognize any other law other than the constitution. Every question is answered by, “Check Article this.” My own argument as an academic and a practitioner is this; the constitution itself recognizes that it's not a land law statute. Is that a land law statute?
Audience: No.
Githu Muigai: Is that the family law statute?
Audience: No.
Githu Muigai: Is that the company law statute? Is it the statute controlling criminal procedure? Is it the statute controlling civil procedure? It is not. So it is not an answer when the question is raised, where is the locus? Locus is important. The court is not a marketplace. You cannot say everybody can approach the court. It is even irresponsible. There is the economics of justice. We must be able to go back to a statute that says, how does the law of Kenya recognize that you can approach the court? By petition, by plaint, by originating summons. The constitution cannot rewrite that. You cannot then go and say, you know, the constitution recognizes that I have a right to be admitted to the university. Okay, so what have you filed before the court? I have written to you Mr. Judge, a letter complaining. If we go down that road, in my opinion, we will not grow the law itself, which is parasitic on the constitution.
I used to tell my students, time has not changed my position on that point. If we can think of 100% of the law of Kenya, the constitution is 10%. The constitution itself recognizes that 90% of the law will be in the Dog Act, the Cat Act, the Donkey Act, the Maize Act, the Bean Act, and a million other statutes, and if it wasn't there, this would not be enough to govern our country. So I summarized by saying therefore, a theory of interpretation of the constitution should be minimalist, not maximalist. It should be a minimalist, not a maximalist interpretation. It is one that confines the constitution to giving life to provisions. Let me give my last example, which I give last year, Mr. Moderator. They’re many people who say you can read this statute or this constitution to support gay marriage. I say it is nonsense on stilts. There are those who say you can read this constitution to outlaw the death penalty.
More nonsense on stilts. That's not my original language. That's the language of Bentham whom you will meet or have met. Why do I say that? Because the issue of gay marriage was debated by us. Wanjiru Kabira will confirm, it was before Bomas we debated it, debated it, debated it and we lost the motion. So we cannot have a constructive way of reading the Constitution to legalize gay marriage. It means we are being dishonest. I am a great exponent against the death penalty. I argued for us to remove the death penalty. Many people supported that view. We lost it, hands down. We can't creatively now come and read a provision that we lost on the floor of the assembly that voted on the constitution. When I was attorney general, a case was filed challenging the mandatory application of the death penalty without a judicial process. I supported it completely and it's the law of Kenya now, and all death penalties are being reviewed today.
So I would say therefore that … And minimalist theory of the interpretation will save this constitution for longer, a maximalist that it provides for everything and anything, anywhere by anybody will kill it before it has started crawling.
Linus Kaikai: You heard the Professor Githu arguing for a minimalist and not maximalist approach or theory of interpretation. Earlier on he also spoke about an activist attitude in the judiciary. Please respond to that.
Willy Mutunga: Well, you know I had debate with the current in the speaker of the National Assembly when he called me an activist CJ. And I told him that he was also activists. Actually all of us are activists. It depends on which course you are activists in. We are all active, right? So I told him, you an activist in pushing which he has continued to do to subvert the constitution through legislation. So the issue of the activism in this country tends to be used as a dirty word, but as Githu says, it has two faces and we are all activists. I basically think that within this theory, judges play politics and they should. Within this particular theory because you’re going to … When you interpret values and sustainable development, patriotism et cetera, et cetera, you have to leave the comfort zone that lawyers have by saying they’re learned when we are very ignorant in other disciplines. So you have to move into politics.
You have to move in philosophy and that's why I said interpreting the constitution … this theory states very clearly that this document is not legal centric. It's multidisciplinary. There's one issue that Githu will have to take note of. The question; who elected the judges? Actually, when I was the chief justice, I thought under Article 1, I had the authority of the people delegated to me. Okay? Because judicial authority derives from the people. I also thought I was elected because when I was interviewed all the natives was asked to come and vet me, see whether I was suitable and they did. And you know what, I was also nominated by the guy you now call [foreign 00:43:40] and [Chibaki 00:43:44] as the Ugandans would call him. And those guys had won millions of votes during the 2007 election. They thought, I could … So, and then I went to parliament, where the pigs were. They told me. “Yeah. This guy can be chief justice.” So I know this argument about election, politics, judges must stop saying that they don't do politics.
Because even Githu has said in the dark days and he was quoting Chief Justice Miller who was supposed to operationalize the bill of rights. And he said it's not operative because I didn't do the rules. So why didn’t he do the rules? And [inaudible 00:44:48] and there were quite a number of others who did that. So the constitution allowed judges to be activists within its provisions, within its provisions in my view and that's what the discussion about transformative constitutions that is for another day because we should have started with that … this notion of transformative constitutionalism, what does it do? And how does it move beyond what Githu is saying, that's something if you get all the papers that have being given you'll be able to get it there. In terms of-
Githu Muigai: Let me just interject Dr. Mutunga.
Willy Mutunga: Yeah, just wanted to finish this thought I-
Githu Muigai: Okay.
Willy Mutunga: In terms of … Githu is saying the theory will have to be redefined and whatever. The Supreme Court has given very, very, very clearly what the theory will be. I'm not … I’m a thousand miles from arguing that it cannot be refined. I expect Githu, because he was arguing in the Supreme Court about this issue that he’ll go back to the Supreme Court and they convinced them, convince the Supreme Court that there's no theory and this is how we have to do it. But I agree with him that, like everything that you come up with you cannot say it's a [inaudible00:46:33] or an [inaudible 00:46:33], right. It's still needs refining and there are people who have problems with it as Githu has actually showed. But that is for the Supreme Court to do. But as we talk now, that is the law.
Linus Kaikai: That is the law, press court. Yeah. My interjection is just about something else that Professor Githu which I'd like you to respond.
Willy Mutunga: Yeah.
Linus Kaikai: You’ve spoken in defense of judicial activism.
Willy Mutunga: Yes.
Linus Kaikai : How far does that have to go before it becomes what he called loose cannon?
Willy Mutunga: Well, I don't know what a loose cannon is. I don't know. But if we accept … and this is really the crux of the matter. The crux of the matter about the construction is challenging some dominant paradigms that in law schools, as we practice law we've accepted because of our colonial heritage for decades. So the constitution when we say is the decolonizing, when we say is indigenous, we’re just using words that have been in the Supreme Court Act and the constitution. But I think the constitution has its barriers, is as its barriers against rogue elephants and the loose cannons. In fact, I think without this theory, that's when you get more loose cannons and more rogue elephants and rhinos than the situation where we refined a theory of the constituent and say, these are the ingredients. We say as we did in the case of digital migration, where we face a situation where the Chinese who are going to get on the spectrum.
And so we went back to the constitution. And that's why I think it's very important to go back to the constitution. And way to use the value of patriotism, sustainable development and we said, it can't be said that the 40 billion assets by Kenyans would just be wasted. And we give the licenses to the Chinese. So we used the constitution, the values in the constitution Article 10 to talk about inclusiveness, to talk about equity, equality, accountability, to basically say what sustainable development means is that domestic investments have to be respected as much as foreign investment. So my view always was, if I got a case from Australia or from America, I’ll interrogate it using the constitution to see whether it subverts the constitution, its values and the ingredients of that theory. So I don't agree that the constitution is the supreme law. Okay? And that's why Article 20 says, you can make law. You can … And we had that debate in the Supreme Court where some of my colleagues thought there's a judicial practice or judicial notice that can subvert the constitution and I was arguing, “No, Article 20 says, if it does subvert in terms of bill of rights, you interpret it, you develop it so that it complies.”
So I see the constitution is really the crucible to make sure that is the reference point on all that we do. And I think that's how the judges will be kept in check. Not to also say that there are provisions for removal. Okay? Misconduct, incompetence, judicial laziness and mental infirmities …. judicial mental infirmities and so forth. So there are procedures for dealing with rogue judges in my view, they will be removed and they’re examples of that that have happened in the judiciary.
Githu Muigai: [crosstalk 00:51:39] Linus, will you allow me just half a second to respond-
Linus Kaikai: For a minute. One minute please.
Githu Muigai: On-
Linus Kaikai: Okay.
Githu Muigai: -on when is a judicial officer rogue? When is a judicial officer a loose cannon? If three days, four days to a national election, a judicial officer says, “I am overturning the decision to award the tender to print the electro papers, because-“ listen to this, “ … Because there was no public participation.” That is not an interpretation of law. That is a dangerous flirtation with politics.
Linus Kaikai: Thank you, you want to respond to that?
Willy Mutunga: Yeah, but if we can leave politics to hooligans in parliament, why not people who are learned? Lawyers who are in the judiciary? That’s [inaudible 00:52:36] my whatever. We cannot really and I’ve been arguing and arguing about this issue, I’ve given lectures about this issue of judge and politics. We basically are acting. We are politicians. It’s just that we don't say it, we don't say it. And you see the example Githu is giving, public participation is a value. The courts themselves have said what that public participation entails. All right? If it's a case of Odunga for example, I think that's the one you’re quoting Githu?
Githu Muigai: There were several sir. And public participation is within the statute itself.
Willy Mutunga: Well-
Githu Muigai: If we were to go that with Chief Justice, it would mean that somebody says, “Students have been admitted to the university, they should be blocked from reporting because there was no public participation. The University Act has no public. The truth is this ideas, good ideas inside the constitution are being cannibalized to justify inappropriate political interventions. That's the real danger.
Willy Mutunga: Yeah. But I still think that what Odunga and others are doing, it's … Look at again the word public participation and the breathe life into it. All right? And the guy called [foreign 00:54:22] in Embu called a meeting via Twitter. He just said there's going to be public participation, therefore Twitter, come to a meeting. And Odunga was saying, “ Wait a minute, we have other forms, [foreign 00:54:40], people can be called to meeting so that they participate. My governor in Kitui, Ngilu for her, public participation is addressing a meeting of hired crowds. And he said, “We have decided.” But for me public participation they tied up with the issue Article 1, which is the sovereignty of the people.
Linus Kaikai: Yeah, and I'll give both of you, Dr. Mutunga and Professor Githu just a minute each to comment now that you've raised the decision by Justice Odunga, I'll give you another Odunga decision that I would like to hear your comments on. And that is on the case of returning officers just a day to the next election, when the judge actually made a decision that the returning officers were not procedurally appointed. And what that would have meant was the election should not have proceeded. Would you support a decision like that?
Willy Mutunga: If it was done within the constitution, I will support it. The other argument is, we are saying some politicians can make certain decisions or some people want to go into election and they tell us, ”Oh, if this decision is changed, it will be expensive.” Okay? I think that's a dangerous argument in Kenya coming from thieves and the people who are actually corrupt, they are mounting national debts. And so that's a bit, Githu doesn't want me to say, but that's my activism. I've had it since the ‘70s. I basically think that the Kenyans themselves, since they have told judges that they exercise their authority from them, they should be allowed to make that decision. And that decision in my view under the constitution has the force of the constitution and if the executive is aggrieved, it has to go to the court of appeal as it did. That is it, if we don't want to subvert the constitution, once you get a bad decision, you have to appeal. But if you don't appeal, it's subversion of the constitutional rule of law not to obey it.
Linus Kaikai: Your one minute on the Khelef Khalifa case.
Githu Muigai: Again we go back to what should the theory of interpretation contain? In my book, it should be prudential. A judge is prudent. What is it you are curing with your order? Is the order likely to cause more harm than the harm that already exists? A court order that says the election is tomorrow and we have nullified every station in the country and if the election is not held tomorrow, the constitution contains no provisions for expanding time. Therefore, the effect of my order is to create a constitutional crisis of monumental proportions that will require a constitutional amendment to be effected, but the house that can effect an amendment has already been [pro-robbed 00:58:29]. To my mind, that is not a prudential judgment. Let me give you the example of a prudential judgment. Not too long after the new constitution came into force, it was realized that the budget estimates had not been published in accordance with the provisions of the constitution, and in time.
A person went to court and said this entire budget process is illegal and unconstitutional. The consequence of that was going to paralyze the whole of government for the foreseeable future. A judge, a very … in my view, and I take no credit in having trained him, but clearly on his argument which is the prudential argument was this, “That is correct.” That is what the constitution requires. But this is for directions. It takes to direct a process so that the process achieves openness, transparency and so on. To reverse this process would cause greater harm to the Republic of Kenya and its people than not to do that. That is my kind of judge. A judge who then says,” I am applying the law. I don't care about the consequences. It's for politicians to worry about the consequences,” that judge is not a judge, is a politician.
Linus Kaikai: Thank you Professor Githu . And among other decisions that are also posed interpretation or challenges was the presidential nominations and the presidential election of 2012. The date had to be subjected to a court process in terms of interpretation of when it should be held. The constitution spoke of, and speaks of to date the first Tuesday of August. We ended up having the election on the 4th of a March. I now want to go to the audience please, by show of hands, I'm going to give you the opportunity to ask one question and specific to either Professor Githu or Dr. Mutunga.
Willy Mutunga: They can also make comments.
Miyawa: But my question goes to Professor Githu Muigai, my name is Miyawa and I want to challenge you on this, don’t you think is too dangerous and even preposterous to propound a theory, a minimalistic theory of constitutional interpretation, particularly in the context of what we now call a transformative constitution. The reason way I make that argument is this, that minimalism as opposed to maximalism comes with the inherent dangers of being restrictive, being narrow and does not take into account [multivariagated 01:01:30] phenomena. And for that particular reason to propose a minimalist theory that not take into account different context, comes with the baggage, what you call the baggage or a dangerous flirtation with a non-indigenization of law, because our law has to be vernacularized to reflect context, to reflect different diversities, whether ethnic, political. So minimalism and especially … Because the legal interpretation we rely on in this country is that [inaudible 01:02:15] received legal tradition.
And the received legal tradition is very dangerous. If you read very keenly the work of [inaudible 01:02:23] who proposes a transformative interpretation of the constitution. Actually he even calls it a post liberal constitution because liberalism has its own inherent danger that you cannot go into today. So I want to challenge you that it's very dangerous to propose minimalism because minimalism come with restrictiveness and narrowness.
Linus Kaikai: Thank you. Professor Githu.
Githu Muigai: Well, I must confess that most of the words you used, I did not understand. Having saved that, I think both of us recognize that the constitution must serve a purpose. For me what my experience teaches me, and I could be wrong on this and my students are always suggesting that I am wrong, but they don't articulate it because of our friendship. What is my appreciation of what the constitution should do as a jurist? In my view, the constitution should stabilize the political and social order. If it doesn't do that, it is of no consequence. It's a piece of paper, which every two years we will write, we will throw it out. A new group will come, we will write a new one and throw it out. I teach my students that the 60 solid years of uninterrupted constitutional rule in Kenya is more important in my view than having a transformative constitution in the mold of the South African constitution, where you have a piece of paper that has absolutely no relationship with the way that people live. Okay, so you have Mandela’s transformative constitution and what does it do?
It masks racism. It masks xenophobia. It masks the largest inequalities among human beings anywhere in the world. So we either want fact or we want rhetoric. Either fact or rhetoric. For me as a jurist, I have made peace with incremental change that stabilizes politics, that stabilizes society, that stabilize cultures so that my grandchildren was to be walking around with this constitution with a few changes inserted there as opposed to maximalist that was to have thrown out this constitution five times and brought five other groups to write it. What do I do when I am confronted like one of my pet subjects? What do I do when I'm confronted by say polygamy? In Bomas my mind was absolutely clear. If we wanted to abolish polygamy, we were going to lose the whole constitution. If for no other reason because of Joseph Martin Shikuku who would not countenance that.
When I went to Sheria House as Attorney General and we were pushing the marriage bills and I was being pressurized by my good friends like Wanjiru Kabira and Patricia Mbote and I was saying to them, let us listen to the wisdom of the luo nation. This is where we go [foreign 01:06:22]. We are going to get there, but you will not change society by imposing on it as social value that it has not accepted in the name of maximalist.
Miyawa: I rest my case.
Linus Kaikai: And to something else he raised there that I just want to follow up. He basically argued that the words minimalist and transformative is a contradiction, isn't it?
Miyawa: Yeah.
Githu Muigai: Yeah. Do I want to transform Kenya? Oh, in the fullness of time, I want Kenya to be transformed. How do I want Kenya when I am an old man of 120 years? How do I want to live it? I want to live it an independent country without social inequality, without oppression, the equality of genders, the ability of people to define their sexuality. I see a huge dream of what Kenya can be, but I'm old enough to know that if I want that yesterday, I'm a fool.
Linus Kaikai: Let's take a second question from right here.
Oliver: Thank you.
Linus Kaikai: Your name and a very quick question or comment.
Oliver: Thank you so much. I'm Oliver [Erupe 01:07:45]. Professor Githu ,if there’s no constitutional underpinning in our constitution as you denied in your first statement. Where do we bring the minimalist interpretation at this time to the constitutional making in Kenya, whether by the judiciary or any other body including parliament.
Githu Muigai: Does the constitution mandate a theory of interpretation? My answer is no. Does the constitution in very broad terms express a desire as to how persons interpreting the constitution should do that? Yes. Is it different from what we had ever used before? No. So if you were talking to an American lawyer and you asked him, “What theory of the constitution do you subscribe?” There is a person who can tell you, “I subscribed to the doctrinal argument.” That's what I'm saying. That is a theory about interpretation. But if you said to him, “I believe it should be purposeful.” He will say to you, “That is not a theory about interpretation.” Yeah? That is an approach to interpretation that is inherent in the judicial making process in any event.
Linus Kaikai: Thank you. Let's come to Professor Mbote here.
Mbote: I'd like to raise a question with the Chief Justice emeritus. If indeed there is a theory of constitutional interpretation and the constitution also says how you're going to get the officials of the court. How is the theory of constitutional implementation carried through in the bringing the people that actually interpret the constitution? And how is that read with the conflicting issues? When you talk about the regional balance, you talk about diversity and then there is competence. How do you marry all these to ensure that the people you have actually carry through this theory of implementation?
Willy Mutunga: Yeah. Okay. Is a good question. You know the vision of the constitution about that issue was that the new judiciary was going to constitute, all right … people who were subjected to the new constitution when they were recruited, all right? That is after the promulgation. But those who were in were subjected to vetting on the issue of suitability. And I think everybody knows here that there was this board, judges and vetting board that worked for four years dismissing or saying some judges were not suitable, magistrates for various reasons. The Act itself gave a criteria, compressive criteria of judging the suitability of judges. So the vision of the constitution was after you vet some and then the others who are coming in and was subjected to the new constitution, you will have a new judiciary. A judiciary that has integrity, that is incorruptible, that is competent.
And that's why the constitution also said that we can get judges from the academy, we can get judges to the corporate sector, we don't just have to get them from the judiciary and the lawyers. So the collective intellect that was going to come up in the judiciary was going to be very, very important in developing this jurisprudence. And there were other administrative activities that were born of this particular theory. For example, the judiciary training institute was about this aspect that we needed to have a theory or if you want to use Sir Githu’s words; approaches, we needed to be very clear that judiciary that this issue was settled. But as we talk now the judiciary reflects this debate. Okay? There are people in the judiciary, there were Githu’s students and mentees and they’re others who actually believe that this approach is right. And I think going forward it's the Supreme Court that will have to deal with this case that … because it has mainstreamed the theory, rightly or wrongly, but that's where it can be changed.
But we worked, the administratively towards that goal in the judiciary transformation framework. We realize, for example, that we needed to be educated by other disciplines. When we were doing the digital migration case, I had never heard of spectrum. I hadn't heard of it. So we needed scientist to tell us what it is. Why is it infinite? And you get a lot of education there. We brought in people who are literature giants like Kabira and others. And you find in the judgments we started bringing a lot of these issues, quoting Ngugi, using sheng words [foreign 01:14:47], judicial [foreign 01:14:48] and Swahili instead of Latin, which I don't understand. So it's a process. I agree with Githu that it’s a process and is a very healthy debate, but we should not disguise ourselves that this debate is not ideological and political. That's it. Because when we basically say that law doesn't exist in a vacuum, that's what we mean. The theory doesn't exist in a vacuum as well.
Linus Kaikai: Thank you. We'll take two more questions from the front and then we'll go to the back. We would like to take questions from the students as well. Yeah.
Dr. Nkatha: Thank you very much. My question is in August 2010, we were all very happy. We danced and we celebrated the birth of a new constitution. A new dawn is what we called it. We were celebrating an opportunity, but us as Kenyans, we finally had a chance to develop homegrown jurisprudence. Jurisprudence that was African, that was Kenyan and that we could actually own. And that was different from the colonial past. To what extent have we been successful? Nine years down the line?
Linus Kaikai: Thank you. Can we start with Prof. Githu on that one?
Githu Muigai: Well, I personally take great pride in this constitution. I think it's a good constitution. It has helped us to achieve things we hadn't achieved before. I think devolution is a fantastic idea. It's not working 100% the way we would want. My CJ is right to say a lot of money's being wasted. It's been sto … whatever. No problem. But I think it has changed forever how people access resources, how people are governed. I think that's a very, very good thing. I think our rights culture has improved. We have swung from a situation where the executive held the predominant advantage on allocation of rights. Now we are in a state where I believe myself that many of the fundamental liberties provided here are accessed by many people, not by everybody. There is much more that can be done and should be done. And so to that extent I'm proud of it but a word caution.
I think that those of us in the business of law sometimes mislead the general public as to what law can do. And I like to say to my students, “Non-lawyers have more faith in law than lawyers do.” It's just like medicine. Many doctors have less faith in medicine than we ordinarily as laymen do. And I can assure you that there are many doctors who walk to the bedside of a patient every morning, find him alive and they are totally shocked. There is a limit to what law can do to transform societies because societies are more complex than … You can't decree. You can't decree to a society, “Please wake up, be democratic, walk away now and never be totalitarian again. The culture of totalitarianism is a culture that is within the fabric of how societies are created. And I can ask you like I asked my comparative constitutional law classes. Why do you have a decolonizing constitution?
The British used the same decolonizing constitution in all their colonies from Jamaica, to Barbados, to India, to Pakistan, to Zambia, to Kenya. Why do these constitutions create such different societies? Why is India the largest, most shambolic, most chaotic democracy in the world, but it still holds nine days of elections? Next door, Pakistan decolonized with the very same piece of paper, a military dictatorship that has no chance of ever changing to anything different. It is because the underlying culture that irrigates the constitution is as important as the constitution itself. And I don't want to mention some friendly countries around us in which we all know that the constitution changes every year because there is a new imperative to keep the leader in office every year. Okay? And so I hope Doctor Nkatha I have answered the question that this is a good constitution. We are making progress.
That's why I'm a minimalist. Every day we take steps, every year, every decade we take steps. Don't be too harsh on yourself. We cannot transform society without transforming the culture. Let me say this because it's one of my examples that I give my students. When we went to Kisii to discuss the future of the constitution, we met groups and groups of people who said, “FGM is not on the table. Have you understood? That is not on the table” And I used to like telling this [foreign 01:20:57] I interacted with that Jomo Kenyatta went to London in 1927 on behalf of the Young Kikuyu Association with three demands; the return of the Kikuyu land, the right of the Kikuyus to educate themselves and their children, number three; the right to Kikuyu FGM.100 years ago. So we must understand what is the law can change and what is it that law must work with the culture to change. Thank you.
Linus Kaikai: Dr. Mutunga. And just a reminder of Dr. Nkatha’s question. It was on the opportunities to develop our own jurisprudence as a country. And it's been many years later since 2010, what is your take?
Willy Mutunga: Well, the way I would like to answer that question is to look at the implementation. And I think the implementation has been a contested terrain because there are forces who don't want the constitution implemented. They don't want us to breathe life into the constitution and everybody knows that this is a fact. And the struggle’s continuing and there’s now a lot of talk about changing the constitution itself through the … I think it's called the what? Building bridges to nowhere. So … And other groups that want to change it and they don't want to follow the process that we followed because Githu was in our constitutional commission, right? There was another commission that gave us this constitution. So if he wanted to change the construction in my view is we can take audit of it. I still strongly think that a lot of you are here, did not write this constitution. And you might have your own version of what the constitution should look like.
People … 1970 … What? 2000 and whatever, a lot of you were in your 20s, right? Yeah. So you didn't vote for it. You didn't write it. You might have your own views about it. So if you are going to change it and we're going to audit it, we really need to use the process that we have always used. And I think that's important. But having said that, even devolution, which is a great pillar, is being subverted. Once we look at the constitution, in my view I think if we are going to have a reflection on it, it should be within the processes that give us the chance to discuss it rather than having a changes, which for me I think are the cause of our problems in this country. People don't want to say this. Our problems politically are caused by the big five. Not the animals. The five communities decide who is going to be president through alliances and so forth.
They don't have the intelligence to rotate. If they were rotating, the luos and the kambas and the luhyas would have also been president, right? And maybe we’d be very stable. But we are people who decide when we should fight and when we should have peace. And I can't trust that kind of a political situation to come up with a constitution. It will just subvert it. So we need in my view, particularly the young people, to basically say what you also want to see in the constitution. There are rights in that constitution, which are very, very important if they are implemented; education, the right to work, housing, the right to food and so forth. If they actualized, they're very, very, very critical.
Linus Kaikai: Thank you.
Willy Mutunga: But who is going to breathe life into it?
Linus Kaikai: Thank you. It's one more question from this side and then we'll go to the back. We're coming that are too, yeah.
Ugada: Good afternoon. My name is Ugada. I'm an alumni of this school, a non-practicing advocate. From the onset I have to be clear in my mind that the problem with the constitution and constitutionalism in this country is one; parallelism, that we have a constitution and adix flowing from the constitution but nonetheless deep state vested interest have decided to create a parallel system to overshadow and undermine the constitution. So that we will go to court, prepare applications on the basis of Article 25, Habeas Corpus, get somebody out but deep state, the powers the [inaudible 01:26:44] will decide that so and so will stay in there. We are the power holders. Now in terms of whether the constitution as far as his theory or not, I am a firm believer of the Mutunga school in the sense that a theory, being as position or system of ideas intended to explain something would mean that Article 259 of the constitution which demands that meaning be given two values and principles within the constitution pre-eminently Article 10 being a salient exposition of the same, would mean that in giving meaning to the values and principles then therein lies a dictate, an imperative to explain and give meaning to certain norms within the constitution.
Therein lies the value. If you can look at Article 24 in its [inaudible 01:27:51] that a certain core to rights must be maintained in interpretation. There lies a minimalist understanding of a theory. So we cannot escape from the understanding that the constitution bears a theory. Our problem and I maintain is deep state. A [inaudible 01:28:14] understanding to undermine the normativity of the constitution.
Mercy: I am Mercy and a student of UoN. My question is based on interpretation. We've talked much about the law end language. My scope is in the perspective of the language in law. According to the constitution, it’s stipulated under Article 7,6,35,164,250 and the Articles goes on and on. To which they have redirected that the interpretation of the constitution in terms of the rules and laws stipulated can be in either English or Kiswahili. And it further promotes and stress that the judicial officers and the states should encourage, develop and promote linguistic rights in the perspective of braille, sign languages, indigenous languages and I suppose the local languages. To that I may be corrected. So my question is, what are your views in terms of interpretation of the laws? The laws that we see here people don't seem to come to an agreement about. How far can we develop them in times of even publishing a Kiswahili constitution [foreign 01:29:35] in actual sense? How far can we go to putting out there a constitution that is in sign language? In the braille? All for the purposes of the national values articulated under Article 10; inclusiveness, transparency and equity. Thank you.
Linus Kaikai: Okay. Both of you will take half a minute, starting with Dr. Mutunga.
Willy Mutunga: I think it can be done. We've been talking about the constitution and we forgot that one of its major pillars is equitable distribution of resources and making sure that the resources are not wasted and they are not stolen so that they can be used. But I also think that … and I always want to give this statistic. The people who go to formal courts in this country are only 5%. [inaudible 01:30:38] 5%. The others don't. And the 95% go to other forums for the adjudication of justice that they trust. And the issue of language becomes very, very, very, very important. If you'll sit in a dispute in a village, you understand this readily, the fact that they are speaking the same language, the fact that the women and men who are supposed to adjudicate are known by the people in the village and they expect they'll get justice and so forth. So I've been talking about breathing life into the constitution. The resources are important. Okay? But I've said also that the process is fundamentally political. So what we've done in my view and Professor Kibwana tells me this all the time.
He says that the constitution is a baby which we have actually handed to rapists and murderers, and we expect the child to live. And that's the political thing that I've been emphasizing that maybe with an alternative political leadership we can breathe life in the constitution because it has hallmarks of progress. But if it's in the hands of people who don't want that progress, who want the status quo because that's their material interests, it means we just have to struggle against the status quo and make sure that the constitution is implemented and the stuff that you are saying is … Personally, I think it can be translated in Swahili and other languages. In the ‘90s when we had a model constitution, it was translated in other languages. Even now the Bible is translated in virtually every language. And I see now the Quran … the other day I got a book [foreign 01:33:00] in [foreign 01:33:01]. So we should be able to translate the constitution because I've always thought that the constitution rests very neatly with the Quran, the [inaudible 01:33:13] on the Bible.
Linus Kaikai: Very briefly, Professor Githu.
Githu Muigai: I would support. I would support a translation into Kiswahili. I would support a braille constitution, but I think we should not get ahead of ourselves. We must do it on a need basis. Part of the biggest problem we have with this constitution is that we sat down and dreamt things and they looked beautiful and therefore we wanted them. Today they've come back to haunt us because we can't afford them. We have a Senate that does virtually nothing but we … it was a beautiful concept. It was the idea of a house that would supervise parliament and defend devolution. I leave it to you as judges, whether it does that today. When I sat in JSC every day, I heard it said, “We need a high court in every county.” There couldn't be a bigger fallacy than that. We don't need a high court in every county. In fact, we don't need more than a chief magistrate in half the counties. That is the fact. Something may look beautiful when you dream it, but it may not be practical.
Linus Kaikai: Thank you.
Githu Muigai: [crosstalk 01:34:40] There’s so much clutter that we can remove from this constitution because we need to think about the economics of law. Law has a cost. We have 400 people in a house that has no quorum. Never, ever, ever has a quorum. When we were 210 people there was no quorum. What have we? In theory, professors of constitutional law will say we have increased representation.
Linus Kaikai: Prof. I’ll interrupt you because you sound like you're making your closing [crosstalk 01:35:16] remarks. We'll come to that, but let me take two very quick questions from that side. We are operating way beyond our time now-
Willy Mutunga: I thought we …
Linus Kaikai: … and we will … Just two questions from that end in quick succession. Yeah, please.
Male 1: Okay. I have a question for … I have an issue with Githu Muigai’s argument that when interpreting the consequence … when a judge is interpreting an issue to come to make a judgment it should interpret it in a way that the decisions he comes up with should have an effect, a greater effect than the harm that has already been caused. You two have both agreed that politicians in Kenya are hooligans. There's a possibility that if judges interpret issues in such a way there will be … the effect will be that politicians will be making decisions that do not follow the law, because they know that if they go to the courts, the courts will say that when they make their judgment, they will say that if interpret this issue in accordance with the law, the effect would be greater than the harm that has already been caused.
Vans: My name is Vans Wekesa and as you pointed out rightly so, Dr. Mutunga, that they’re other dispute resolution mechanisms and I'm proud to say that I'm a professional mediator and an arbitrator to that effect. My question is one, but it's two-prong. So allow me kindly, moderator to ask us to both panelists. And the first one is directed to the Chief Justice emeritus. And the question is quite direct from what you've said, does ideological, political and religious biasness still play in the judiciary?
Willy Mutunga: In the?
Vans: In the judiciary, that is across board.
Willy Mutunga: Yes.
Vans: Do you still see it in the judiciary as … ? And that will go to what Prof. Githu was talking about the American system. And my second question to you still on the same is, what is the difference then to you between approaches in interpreting the law, the constitution for that matter versus the theory in interpreting the constitution? And then the second question is directed to Pro. Githu Muigai, and thank you so much for being so articulate. I’m tying this question with regard to what the [foreign 01:37:47] said, Article 2-1 of the constitution provides for the supremacy of the constitution. Article 2-4 goes further to talk about the inconsistency of other laws or any other approaches in interpreting the constitution, which would be null and void. And that also ties with Article 20- [inaudible 01:38:08] of the constitution, which I believe [foreign 01:38:11] was alluding to in the development of law. And that's my question. Can judges make law according to you, by virtue of Article 20, as the chief justice says. Can judges make law? And then secondly, this is the last. What is your feel about the role of judges or the judiciary in transformation, if in … because you said in the fullness of time you believe in transformation?
Willy Mutunga: Okay.
Vans: Yeah.
Willy Mutunga: So yeah, there are divisions as you expect within the judiciary. Differing ideological positions, political positions, which I think is a reality. And which if the theory is developed then and refined and accepted, judges won't have an opportunity to use those biases. Now, your second question was what?
Vans: The difference between approaches in interpretation versus the theory in interpretation.
Willy Mutunga: Yeah. You write a dissertation on that the question. Because if we start discussing theory and approaches … I suggest you read my writings and Githu’s, right? And critique us. That's the important thing. You can write a critique of this, your Professor Mbote will give you all the documentation you need. And you know that it's actually the fact of law that in 2013 that took the role of critiquing the petition, the presidential petition, got all the materials and the university debated that. So we hope in future we'll be seeing a dissertations coming from you guys supporting or not supporting. That's what the academy is about. And if you write it and you can ask me that question and then I'll give you a reading list of maybe a hundred sources to go and deal with that issue.
Linus Kaikai: Thank you. Thank you Dr. Mutunga. To Prof, you had two questions. The first one, whether judges should make law.
Male 2: Can I sit down [inaudible 01:40:43]?
Githu Muigai: I think that to provide a blank cheque for judges to make law is to undermine democracy in a very profound way. Judges have no business making law. What judges do, good judges do … what good judges should do is creatively use a legal principle, legal doctrine, legal rules to provide solutions. Very quick example, which I always give my student today in Kenya we have no law on surrogate motherhood, in vitro fertilization or related problems. We have a sperm donor, we have an egg donor, we have a womb donor. If I was a judge in Milimani and the three were fighting, I would not throw the file and say there is no law. Go to parliament and do it. I would go to contract law, I would find a doctrine. I would go to tort, I would find a doctrine. I would go to the bill of rights, I would find all these strands and I would put them together by legal reasoning and I would give an answer. Am I making law? No. I am constructing from what law has already given me. So I've answered that one.
The last one is my good friend says, “You know, you know [foreign 01:42:12] if you say that a judge shouldn't give an order whose effect is to create a worse situation than he faced. “ I stand by that. A judge should not be different from a surgeon. A surgeon never operates a patient whom he is not making better. A judge should not issue a legal order that makes the situation he's addressing worse. That's a prudential guidance. Let me give you … and this my last example; as a young lecturer in this faculty for the first time in the history of the faculty, there was a young lady who was about to get a first class degree. Her aggregate marks was 69%. Her aggregate marks. My external examiner was William Twining, he’s Professor of Jurisprudence at Oxford and his father was last governor of Tanzania. And I told William Twining, “Do you mind if we have a moment outside the classroom?” And we went there and I told him, “Let's look at this marks sheet again.” And we found two marks in the mark sheet and we added them and the young lady became the first person to get a first class honors degree. The purpose-
Male 3: The first person or the [crosstalk 01:43:40]?
Githu Muigai: No, no. The first lady. I want to finish by saying our vocation is a vocation to do good. The vocation of law is to use law to do good. Thank you very much indeed.
Linus Kaikai: Just before you sit, but you can actually take a quick rest. The final question and comments will come from Professor Wanjiku Kabira.
Wanjiku Kabira: What was the … In terms of the two thirds, the Supreme Court’s decision, what informed the decision of the other judges? Not in all the legal jargon and everything else. In maybe in 30 seconds or so. Because I know people are tired. And what informed yours? And how do you explain those differences because it might give us an insight into what theories where they using or what philosophy and what made this different from yours? And now, I have to ask one question for Wanjiku. This woman from [foreign 01:44:50] who went to the judge because she was being disinherited and she was told that is not … I don't even know which judge it was, but she was told to go back home because that is not in the realm of that particular judge. What do you do with that judge? Not to be the woman. The one has been disowned and gone back to the village, but the judge is left and this is not the first one. There are many cases like those particularly in relation to gender. [inaudible 01:45:19] you move from 50 to 25. Yeah. So how does the judiciary deal with judges that actually cannot find how to deal with gender related issue and they said that back to where we want to get out of.
Linus Kaikai: Thank you.
Willy Mutunga: You know I descended in the two thirds gender rule and that is the first case when I started thinking about the theory of interpreting the constitution. And I was looking at the history of discrimination against women, violence against women, the representation and right up to 2010 … And I formed the view that, that one third is the minimum, and it had to be actually implemented there and then. The other judges said it was progressive and they fix a date, I think 15th of August 2015 for that to happen. And the rest is history. All right? But I was saying the provision … that provision had a history had a reason. Okay? And that reason, there was no basis for delaying the implementation anymore. And of course let me say it’s the AG emeritus who actually brought that case to the Supreme Court. Obviously fearing and rightly so, that if it wasn't progressive, parliament would be unconstitutional.
At that particular point. And in my judgment, I said it ought to be implemented immediately and if it’s not parliament will be unconstitutionally constituted. So … and I guess that's why I was saying judges, also are politicians. I could feel the discrimination myself and I knew that there was no business for people to wait. And I think I was telling Professor here that if parliament had 100 women under the constitution, right, there'll be enough numbers to beat up those men who are beating women there. But as long as they are just a few they’re just a few they attacked and the whatever. So even the actual numbers … And the last thing I wanted to say is; I said that there was no point to discriminate against women who wanted to come to parliament when you are not discriminating against the ones in the county. And my argument, again using the theory was that the constitution cannot have one section that is subverts other sections, yeah.
Githu Muigai: My view was then, as it is now that we faced an existential threat to the constitution at that time if we dissolved parliament, the very parliament that was to resolve the problem that existed. We would have created a … And again it goes back to my own constitutional philosophy, which is that it is important to safeguard than to destroy. And I thought we would dodge that bullet, live another day, live to fight another day. I lived to fight another day. I left Sheria House without resolving the problem. I drafted three different bills and they didn't succeed. I hear there is another effort to do it. I wish them all the best. Now 2013, 2017 presidential election petitions, I was in both. I'm happy to say that Willy Mutunga’s first decision was the correct one. It was in my view … I expected some heckling from students, not from professors. And the reason for me was very, very straightforward.
The procedure where you hear a case without taking evidence is a very special procedure because then all the evidential questions that ordinarily should be addressed by the law of evidence are not. And earlier on we talked about the Supreme Court believing mostly that the Evidence Act is immaterial. The Evidence Act is fundamental to the probative value that you attach to what is alleged to be evidence. I believe the 2017 election petition, the first one was made in [inaudible 01:51:11]. I thought it was wrong. Now listen to this. This may help you now to understand my philosophy. I believe the second one that went to correct the first one was even more … the jurisprudence was more confused.
Linus Kaikai: Thank you very much. On that note, we have to bring this to an end and I want to give our two guests two minutes each to make closing remarks on a question that I have come up with. And that question is arising from their remarks. Just their own remarks. To my right was Professor Githu who said that …and he held the constitution and said that it contains a lot of clutter, it contains a lot of many unnecessary things. To my left was Dr. Mutunga who in my view sounded unhappy with the extent of the implementation of the constitution and certain provisions around it. Professor Githu, you did say that they’re things in the constitution that haunt you; beautiful by they hunt the country. And I want to ask you whether one of those things is the one third gender concept, which up to now has failed to get implemented. And I want to start with Dr. Mutunga, you have two minutes to make your closing remarks on the question on whether nine years, is it too early to talk of changing or over holding this constitution?
Willy Mutunga: My personal view is that you can, you can review a constitution even after five years. As far as I'm concerned, is the process, that I have issues with where the constitution is being changed through a process that undermines the former processes because those former processes we fought for them. Everybody knows that we fought for what is called people based constitution making. And that's how the word Wanjiku came in. If people remember this was Moi saying, “What does Wanjiku know about the constitution?” Because he wanted to bring in a foreigners to write it for us. And we said, “Hell no. It's going to be written by all of us.” And that's how Wanjiku came in. As we said, he could have mentioned any other person but it showed that he thought that ordinary people are idiots, they can't write a constitution. But the processes showed that they have views about food, they have views about culture, they have views about everything. So it's the process that I think is important, it’s not really the period in my view.
Linus Kaikai: Thank you. Professor Githu, your two minutes.
Githu Muigai: I must say on the gender issue, when we first started the agitating around it for effecting changes, we had a lot of traction. We lost the public somewhere along the way because a perception developed that those who were already in parliament were not making a difference. I want to use the word perception because I don't share that view myself. We need to rethink how we get gender parity without the difficulties that we have now. And my solution is very simple, if we came around to it. We now need to have constituencies with two …. however we create them; two members, one male, one female. We live that problem behind us. Whether it's the Senate, we have one county, one male, one female. We live that problem behind us. What was the last point about?
Linus Kaikai: Whether it's too soon to change the constitution.
Githu Muigai: I think it's never too late to do the right thing, Martin Luther would have said. Well, if we all believe that there is a problem I think the sooner we address it, the better. Last point, I promise you Linus, this is my last one. In the design of the constitution, again, we misled ourselves in believing that if you had a president elected by 50 plus one, that would resolve completely and totally the issue of legitimacy. We were wrong. We were wrong. And if I were to do it all over again, I would try to create a broad base for national leadership so that there is a bigger inclusivity provided by the constitution itself. I would even go the Latin American way. Put people in the senator as senators, allow them, all that sort of thing. Because what we now have is a situation where dominant political actors are shut out on the day after the election and that creates political turbulence within the system that is unnecessary. There must be a way of inclusivity. I don't know how.
Linus Kaikai: Thank you. Thank you very much. Attorney General emeritus; Professor Githu Muigai and Chief Justice emeritus; the honorable Dr. Willy Mutunga, ladies and gentleman, a very warm round of applause for these two great gentlemen. And that marks the end of our debate. I want to hand it back to Jennifer Githu and Dr. Collins Odote.
