Systematic interpretation vs judicial activism: The position of the Kenyan supreme court in presidential election cases
Semafumu, Trevor Bernard
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The 2010 Constitution came with lights of hope for many Kenyans. It brought a myriad of changes in the country’s jurisprudential landscape. One such change is the fact that it is one of the few constitutions in the world that provide for a method in which it has to be interpreted. This is reflected in a number of its provisions, specifically Article 259. Article 259 provides that any constitutional interpretation shall be such that it promotes the purposes and the values enshrined in the Constitution, advance the rule of law and human rights and fundamental freedoms in the Bill of Rights. Such interpretation has to also contribute to good governance, facilitate the development of the law. The Kenyan Supreme Court has gone to clarify that this method of interpretation demands that, in interpreting any constitutional provision, such provision has to be interpreted in connection with other provisions of the constitution. This is further supported in literature where some argue that the method of interpretation that the 2010 Constitution requires has made it such that it is not enough to just refer to foreign case law or a definition from Black Law dictionary and just transplant this in Kenya. It is this method of interpretation that the 2010 Constitution requires that this dissertation refers to as ‘systematic interpretation’. The author contrasts systematic interpretation with judicial activism. Judicial activism is an attitude of constitutional interpretation whereby judges take into account consideration that are outside the constitution to interpret the law (examples include political, moral and economic considerations). The ultimate purpose of this dissertation is to suggest whether it is systematic interpretation or judicial activism that the Kenyan Supreme Court has relied on in presidential election cases.