Misinterpretation of the methodology for determining the breach of the core of a right by Kenyan courts

Abstract

This study examines the methodology employed by Kenyan courts in determining whether the core of a fundamental right has been derogated from, focusing on the tension between the exclusionary and integrative approaches within Kenya’s legal framework. The primary objective is to establish the appropriate methodology for determining whether a right’s core has been breached as provided under Article 24(2)(c) of the Kenyan Constitution, and to evaluate the courts’ adherence to this framework. The scope of the study is confined to Kenya’s legal jurisdiction, with foreign sources used as secondary materials to complement the analysis of primary constitutional provisions and judicial decisions. The methodology adopts a doctrinal approach, utilizing primary sources such as Kenya’s constitution and case law, alongside secondary sources including journal articles, institutional reports, and scholarly literature. Case studies illustrate the application of the integrative approach and inform recommendations for aligning judicial practice with constitutional requirements. The findings revealed that Kenyan courts have frequently applied the integrative approach, which relies on a proportionality test to determine core breaches, despite the constitutional preference for the exclusionary approach. This approach, which excludes proportionality and focuses on whether a limitation threatens a right’s existence, is provided for by Article 24(2)(c) and aligns with the Constitution as the grundnorm, per Hans Kelsen’s theory. The courts’ reliance on the integrative approach undermines the efficacy of Article 24(2)(c)’s protection, diminishes the significance of rights, and risks arbitrary judicial decision-making. Conclusions highlight an inconsistency between judicial practice and constitutional mandates, eroding public trust in the judiciary. Recommendations include adopting the exclusionary approach consistently, as it offers stronger protection for fundamental rights by safeguarding their essence.