The Effect of transformative constitutionalism on constitutional interpretation in Kenya An Analysis of presidential election petitions

Ogetii, Arnold Ombasa
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Strathmore University
Kenya’s history of rampant constitutional abuse is well documented. During this period of abuse, as Professor Githu Muigai demonstrates, Kenyans could not look towards the courts as the jurisprudence emanating from them endorsed notions as dangerous as that of a president being above the law. The same jurisprudence also illustrates the judiciary’s willingness to use technical reasons to dismiss cases on substantive rights. The judiciary was particularly unreliable on constitutional issues that touched on elections. For instance, the case of James Aggrey Orengo v Daniel Toroitich Arap Moi. In this case the James Orengo contended that the declaration of Moi as the winner of the 1992 Presidential elections could not be valid. This was because Moi had already served two terms as president and a further term was ‘prohibited by Section 9(2) of the Constitution.’ In a highly controversial decision that has been termed as ‘illogical and toward a specific political goal’, the court declared Moi as validly elected.This type of constitutional interpretation which clearly favoured the incumbent president was not uncommon as can be illustrated by the cases of Kenneth Stanley Njindo Matiba v Daniel Toroitich Arap Moi, Daniel Toroitich Arap Moi v John Harun Mwau and Mwai Kibaki v Daniel Toroitich Arap Moi. The consensus among scholars was, and is, that these decisions were superbly flawed and subversive of the constitution.
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School