THE CONCEPT OF SUPREMACY

OF THE CONSTITUTION FROM A

THEORETICAL PERSPECTIVE
 ●Article 2 of the 2010 Constitution of Kenya establishes
the doctrine of Constitutional Supremacy in the
following terms:
●1) This Constitution is the Supreme law of the
Republic and binds all persons and state organs at
both levels of government (County and National
The Meaning government).
of a supreme ●2) No person may claim or exercise State authority
Constitution except as authorized under this Constitution.
●3)…………
●4) Any law, including customary law, that is
inconsistent with this Constitution is void to the
extent of the Inconsistency, and any act or omission in
contravention of this Constitution is invalid.
 ●Para 195
Martin ●“This means that no person or state organ is
above the law and above the Constitution. All
Nyagah organs created by the Constitution are
Wambora and subordinate to it. Further, Article 10(1) binds all
others v the state organs, state officers and public officers
Speaker of the and all persons while applying and interpreting
the Constitution. Therefore, when any of these
Senate and organs steps outside its area of operation, this
others (2014) Court will not hesitate to intervene.”
●The supremacy of the Constitution cited in that
case is different from its polar opposite system of
parliamentary sovereignty.
●According to Mutakha Kangu, while the system of
parliamentary sovereignty rests upon the principle
that parliament is a sovereign law-maker with
unfettered power, that of constitutional supremacy
rests upon the principle that the people are
sovereign and when they express their will through
the Constitution, the Constitution becomes the
supreme law which limits all governmental
authority, including the power of parliament to
legislate and perform all its other functions.
●The supremacy of the Constitution therefore
derives from the sovereignty of the people.
●In the landmark case of Njoya Justice (2004)
Kasango observed as follows: “[t]he Constitution of
Kenya which is the supreme law of this country is the
will of the people or the mandate they give to
indicate the manner in which they ought to be
governed‟.
●Further, the High Court in Onyango clarified the
hierarchical relationship between the sovereign
people and the supreme constitution thus:
●The reason for this is that constituent power cannot
be fettered by an existing Constitution in that in the
hierarchy of power, the people come first and it is
the people who gave rise to a constitution.
●They are the supreme law givers.
●The Constitution though supreme is subordinate to
the people.
●According to Justice Ringera, the Constitution
is not supreme because it says so: its
supremacy is an attribute to its having been
made by a higher power, a power higher than
the Constitution itself or any of its creatures.
The Constitution is supreme because it is made
by, they in whom the sovereign power is
reposed, the people themselves.”
●Osogo Ambani and Morris Mbodenyi in their
book “The New Constitutional Law of Kenya:
Principles, Government and Human Rights”
argues that the 2010 Constitution articulates
the now well-entrenched principle of the
supremacy of the constitution which
presupposes a hierarchy of norms, which
scheme reserves for the written constitution a
pride of place.
● They further add that in this set up the
constitution is the most important piece of law
in the legal system and ranks over and above all
other legislations, customs, conventions and
principles.
● Thus, in case of a conflict between the
constitution and any the other norm the former
prevails. They cited four plausible explanations
for this principle:
● i. express constitutional provision;
●ii. judicial precedent;
●iii. Kelsenian
●iv. and the social contractarian theory.
 ●The Constitution (at Article 2) we mentioned
earlier stipulates the major ingredients that
characterize the principle of constitutional
supremacy in Kenya.
●The first and perhaps most cardinal attribute of
The the principle reckons that the Constitution ‘is
Constitution the supreme law and binds all persons and all
State organs at both levels of government’.
The latter part is further buttressed in the Bill of
Rights, which ‘applies to all law and binds all
State organs and all persons.’
●.
 ●The second attribute affirms the centrality of
the Constitution in that the authority of the
State is exercised only as authorized by it.
There is, in other words, no legitimate
foundation of authority other than the
Constitution.
The
●The third attribute excludes the Constitution
Constitution from any contestation before a court of law
given that its validity or legality is not subject to
challenge by or before any court or other State
organ. This seems to be an attempt at avoiding
debacles as have happened previously when
constitutional provisions have been questioned
● In the Njoya case, mentioned earlier, for instance,
Ringera J decried certain constitutional amendments
and fell short of declaring them invalid.
● Since independence in 1963, there have been
thirty-eight (38) amendments to the Constitution. The
most significant ones involved a change from Dominion
to Republican status, abolition of Regionalism, change
from a Parliamentary to a Presidential system of
executive governance, abolition of a bicameral
legislature, alteration of the entrenched majorities
required for constitutional amendments, abolition of
security of tenure for judges and other constitutional
office holders (now restored), and the making of the
country into a one-party state (now reversed).
●And in 1969 by Act No 5 Parliament
consolidated all the previous amendments,
introduced new ones and reproduced the
constitution in a revised form.
●The effect of all those amendments was to
substantially alter the Constitution. Some of
them could not be described as anything other
than an alteration of the basic structure or
features of the Constitution … … all I can say in
that respect is that, fortunately or
unfortunately, the changes were not
challenged in the courts and so they are now
part of our Constitution.
 ●Although the 2010 Constitution introduces new
sources of law such as international law (See
Article 2(5) and 2(6) of the Constitution) there is
still a sense to which the Judicature Act may be
acceptable as containing an elaborate
catalogue of the valid norms in the legal
The Judicature system. A presumption is normally made from
Act the order of the listed norms that the
Constitution is paramount. It ought to, thus,
prevail in case of a contradiction between it and
any other norm.
 ● In this decision, the Supreme Court found that the constitution, as
a source of law, is paramount and is to triumph where an
alternative or conflicting position is provided in any other law.
● This is because constitutions are written to limit government, a
role which is best served where all other rules are subordinated by
Marbury v it.
Madison 5 US ● Supremacy, the Supreme Court ruled, is pertinent to the tradition
of written constitutions – as opposed to the unwritten tradition as
(1 Cranch) 137 is the case in Britain – and it would amount to an absurdity or
‘solemn mockery’ if this hallowed status is not accorded the
(1803). constitution.
● Failure to uphold constitutional supremacy, the Court further
observed, flies in the face of the judicial oath as judges swear
allegiance to the written constitution. It is therefore logical that a
document of this character ought to override all other norms.
 ● Marshall CJ proceeded further as follows:
● Between these alternatives there is no middle ground. The
constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts,
and, like other acts, is alterable when the legislature shall please to
alter it. If the former part of the alternative be true, then a
Marbury v legislative act contrary to the constitution is not law: if the latter
part be true, then written constitutions are absurd attempts, on
Madison 5 US the part of the people to limit a power in its own nature illimitable.
… This theory is essentially attached to a written constitution, and
(1 Cranch) 137 is consequently, to be considered, by this court, as one of the
fundamental principles of our society. … It is emphatically the
(1803). province and duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each.
 ● Hans Kelsen’s contribution to the body of jurisprudence and
especially legal positivism is a colossal one. He is the author of
the pure theory of law and the basic norm theory.
● Kelsen conceives of a legal system as composing a number of
norms. These legal norms exist in a hierarchy, a ‘chain of
creation’ in which each norm extracts its validity from the other
immediately above it.
● In this framework, ‘a plurality of norms forms a unity, a system,
Kelsen’s basic an order, if the validity of the norms can be traced back to a
single norm as the ultimate basis of validity’.
norm theory
● All the other laws ultimately owe their validity to what is called
the basic norm. This basic norm ‘constitutes the unity in the
plurality of all norms forming a system’. In the hierarchy of
laws, the constitution as a norm is above all the others – and it
is through it that the other sources of law acquire validity.
● The constitution as the yardstick for credibility is therefore
supreme, and other laws ought to conform to it if they are to
apply.
 ●Another relevant philosophy in jurisprudence
and constitutional law that explains the
supremacy of the constitution is the social
contract theory.
●Under this cluster fall ideas of John Locke,
Social Thom Hobbes, Jean Jacques Rousseau, Thom
Paine amongst others. There are traces of this
Contract philosophy in Thomas Jefferson’s Declaration of
theory Independence.
●In the Leviathan, Hobbes argues that the
modern system of government owes its
existence to the excesses of an initial primitive
society operating without any form of common
administration.
 ● In the absence of coercive governance structures men
conducted business under the dictates of their
unlimited natural instincts and did not have to conform
to any organized system of rules.
● Society in this state of nature was in ‘a condition of war
of every one against every one’, because every one
would be governed by his or her own reason. Might was
right in other words. Hobbes’ description of the
Social situation in the state of nature remains apt:
Contract ● To this war of every man against every man, this also is
theory consequent; that nothing can be unjust. The notions of
right and wrong, justice and injustice, have there no
place. Where there is no common power, there is no
law; where no law, no injustice. Force and fraud are in
war the two cardinal virtues. Justice and injustice are
none of the faculties neither of the body nor mind.
 ● Such a society is inimical to private ownership of
property or even the entire concept of rights. It was this
sad state of affairs that necessitated the civil society
under organized and coercive government. In the civil
society, all individuals surrender their natural rights to
Social violence to a form of government in exchange for
mutual security and fundamental rights.
Contract
● Government thus becomes a necessary compromise
theory and the constitution arguably the agreement or
contract that gives rise to it. The constitution, being the
significant social contract, therefore, must occupy an
important place in the legal set-up.
 ● But what does the Constitution say about its
interpretation?
● The Kenya Constitution, 2010 has an express vision on
how it is to be interpreted. The Constitution and the Bill
of Rights require a purposive interpretation, with due
The Courts regard to the values and aspirations expressed in the
constitutional text.
role in ● Article 259(1) stipulates that the Constitution shall be
interpreting a interpreted in a manner that—
Supreme (a) promotes its purposes, values and principles;
Constitution (b) advances the rule of law, and the human rights and
fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.
● Furthermore, Article 20(4) of the Constitution, stipulates
that in interpreting the Bill of Rights, one should promote:
● (a) The values that underlie an open and democratic society
based on human dignity, equality, equity, and freedom;
● (b) The spirit, purport and objects of the Bill of Rights.
● When interpreting the Constitution/Bill of Rights, a court,
tribunal or forum must make value judgements. This entails
a value-coherent construction – the aim and purpose of the
provision must be ascertained against the fundamental
constitutional values.
● The fundamental values in the Constitution form the
foundation of a normative constitutional jurisprudence
during which legislation and actions are evaluated against
(and filtered through) those constitutional values.
● It is also trite that Courts must adopt a contextual
interpretation. This method is concerned with the
clarification of the meaning of a particular
constitutional provision in conjunction with the
Constitution as a whole.
● This is also known as a holistic approach. The emphasis
on the ‘wholeness’ is not restricted to the other
provisions and parts of the Constitution, but also takes
into account all contextual considerations such as the
social and political environments in which the
Constitution operates.
● If an interpretive framework were required to buttress
this position, it would be the one reflected in the
principle of harmonization enunciated by Musinga J (as
he then was) in the case of Centre for Rights
Education and Awareness (CREAW) and Others –vs-
The Attorney General Nairobi Petition No 16 of 2011
(Unreported)
 ●The Court observed as follows:
Centre for ●“In interpreting the Constitution, the letter and the
Rights spirit of the supreme law must be respected.
Various provisions of the Constitution must be read
Education and together to get a proper interpretation. In the
Awareness Ugandan case of Tinyefuza v The Attorney General
Constitutional Appeal No. 1 of 1997, the Court held
(CREAW) and as follows;
Others –vs- The ●“the entire Constitution has to be read as an
Attorney integrated whole and no one particular provision
General Nairobi destroying the other but each sustaining the other.
This is the rule of harmony, rule of completeness
Petition No 16 and exhaustiveness and the rule of paramountcy of
of 2011 the written constitution.”
(Unreported)
● One consequence of constitutional supremacy is that
the judiciary has the power of constitutional
interpretation and judicial review which it must use to
strike down legislation or any other action if found to
be inconsistent with the supreme Constitution.
● Constitutional interpretation is a process that employs
generally applicable principles, procedures and
strategies to read and apply the Constitution, starting
with and centred on the written constitutional
document.
● It is a process of seeking to discover the content of the
norms and apply them.
● More importantly, it is a process of the practical
realisation of the constitutional provisions by giving
them content, shape and direction.
● While Article 2(4) makes it clear that any law that is
inconsistent with the Constitution is void to the extent
of the inconsistency, in terms of Article 165(3)(d)(i), the
High Court has jurisdiction to interpret the Constitution
and determine „whether any law is inconsistent with or
in contravention of [the] Constitution‟ and make the
necessary declaration.
● This draws on what Justice John Marshall of the US
Supreme Court found many years ago, where he
pointed out that it is the role of the judiciary to weigh
Acts of the legislature and acts of any other body
against the Constitution for constitutional consistency
and, where there is inconsistency, declare them
unconstitutional and invalid.
● The Kenyan High Court in Trusted Society of Human
Rights and others v Attorney-General and others has
already acknowledged this authority of the courts
under the new Constitution, noting that “the Courts
have an interpretative role – including the last word in
determining the constitutionality of all governmental
action”.
● This power, the Court added, includes the responsibility
to determine whether the other constitutional organs
have interpreted their mandates under the
Constitution correctly.
● Furthermore, the Supreme Court in Speaker of the
Senate and another v Attorney General and others
asserted that a time comes when the prosecution of
mandates by other organs of state raises conflicts
touching on the integrity of the Constitution itself,
calling for the court as the ultimate judge of right or
wrong.
● Ojwang notes that the, “new Constitution cannot
propel itself and as such, the judiciary is assigned a
central and special role as, the primary and ultimate
arbiter, when the operations of the several public
bodies run into conflict”. It is the dominant interpreter
of the totality of the Constitution, and has the power to
pronounce upon legality with a final voice.
● Contrary to what happens under parliamentary sovereignty,
courts do not avoid and abstain from legal issues that have
political and policy implications.
● In Speaker of the Senate, Rawal DCJ adopted the view of the
South African Constitutional Court in Doctors for Life where
it was asserted that the court bears the, ‘responsibility of
being the ultimate guardian of the Constitution and its
values, has jurisdiction in, crucial political areas and bears
the duty to adjudicate finally in respect of issues which
would inevitably have important political consequences.
● In both Judicial Service Commission v Speaker of the
National Assembly and another, and International Legal
Consultancy Group v The Senate and Another, the High
Court went further and made various policy
recommendations regarding what should be legislated.
Constitutional supremacy gives the courts a special and wide
responsibility for the enforcement of rights under the
Constitution.
Thank you for
your
attention.