The Constitution of Kenya (2010) has within it guidelines on how it ought to be interpreted. Today, there are a considerable number of legal scholars, practitioners and judges in Kenya who understand these guidelines to mean that a theory of interpretation which calls for rights to be read broadly is always adequate and correct and that it is always a good idea for courts to read their own powers and jurisdictions broadly, especially where rights are concerned. The assumption and conformity caused by this understanding, this article suggests, has led to the exertion of a subtle pressure on all those involved in constitutional interpretation in Kenya to follow this line. Consequently, this has inevitably hampered what would otherwise have been healthy debate on how some constitutional provisions should be interpreted.Thus this article – through applying a textual analysis of the Constitution as well as studying a cross section of judicial decisions – suggests that this standard view is flawed. It then proposes a more nuanced understanding that sees the complex tangle for what it is and that has a place for a differing mode of interpretation.
African Journal of International and Comparative Law – Edinburgh University Press
Published: May 1, 2019