The ethical nature of legal obligation: In search of a basis for interpreting article 259(1) of the constitution of Kenya, 2010

Abstract

Constitutional interpretation in Kenya is crucial for the Constitution of Kenya, 2010, to improve the lives of Kenyans as desired, so much so Article 259(1) prescribes a definite approach of interpretation. This provision states that the document is to be interpreted purposively. However, the proper method for interpreting the Constitution is controversial, according to Kenyan courts. ‘Purposive interpretation’ of the same document, and sometimes even the same provisions, would appear to yield widely divergent results. The question underlying this controversy is about the basis of legal interpretation, that is, the ethical nature of legal obligation and its relationship to moral obligation. Analyzing this question sheds light on the purpose of the law in general and of the Constitution in particular and the correct interpretation of Article 259(1). This research analyses the ethical nature of legal obligation as a basis of purposive constitutional interpretation. This study uses a qualitative, desk-based approach. Sources used include provisions of the Constitution of Kenya, 2010; jurisprudence from Kenyan courts on interpreting the Constitution; and secondary sources discussing the ethical nature of legal obligation, its relationship to moral obligation, and the basis of purposive constitutional interpretation. The study finds that legal obligation is founded on moral obligation. Specifically, the purpose of the law is the common good. Therefore, the meaning and authority of every law, including the Constitution, is derived from the common good, which thus forms the basis for interpretation of the Constitution and, therefore, of Article 259(1).