MOI UNIVERSITY

SCHOOL OF LAW

FLB 400: RESEARCH PAPER

DIALOGIC CONSTITUTIONALISM: ANALYSIS OF TRANSFORMATIVE

ADJUDICATION IN THE POST-2010 KENYA

BY:

WYCLIFFE K. KOSKEY

LLB/264/14

A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE AWARD OF BACHELORS OF LAW (LLB) OF MOI

UNIVERSITY SCHOOL OF LAW

SUPERVISOR;

MR. KHOBE WALTER

SEPTEMBER, 2017

1
 DECLARATION

I hereby declare that this is a product of my own work and to the best of my knowledge has

not been submitted to any other academic institution for grant of any educational award. Due

acknowledgement has been made of all the materials that have been used in preparation of

this dissertation.

SIGNATURE:……………………… SIGNATURE:…………………

DATE: …………………................. DATE:………………................

WYCLIFFE K. KOSKEY MR. WALTER KHOBE

SUPERVISOR

i
 DEDICATION

I dedicate this to my beloved late Mum Anne Koskey whom I made a promise that some day

I will be a lawyer. I am living up to that dream mama. It is valid.

To my Dad and Mum, Pr. William Koskey and Mrs. Dorcas Koskey to whom they toiled

every day to see to it that I get every need required to undertake my studies. Thanks for your

prayers and support for without it I wouldn‟t be here.

“For he dedicated his heart to seek the law of the Lord and to do it, and to teach statutes and

ordinances in Israel” Ezra 7:10

ii
 ACKNOWLEDGEMENT

First and foremost, I want to thank God almighty for the enabling strength, good health,

wisdom during the process of writing this paper. Thank you, God, for everything that

you have done to me, ) can t count them.

I would to express my sincere gratitude to my supervisor, Mr. Walter Khobe through

whose guidance and insight, I have been able to write this paper. His ideas, information,

critic and appraisal has improved my research skills and has made the journey of

research a journey of exploring knowledge and wisdom. You have made me a scholar

sir.

To all my lecturers at Moi University School of Law, you have contributed positively to

my academic life. Thank you so much.

To my brother Wilson Kipkoech Letting , his moral support and guidance has enabled

me to thrive through law school.

I am indebted to one Sandra Kosgey who worked with me, writing with me, editing my

work and reading it in every step of the way. Thank you my dear, it was not easy we

made it through.

To my friend and brother and partner in crime Isoe Joel Oyugi who also on his part

dedicated his time to read through my work and ask questions on the same. Your

inquiries have been registered. I am greatful to have met you brother.

To my dear friend and sister Emmaculate Lusigi. Thank you for being there for me, for

your moral support and encouragement in every step of the way. Thank you, I salute

you my dear.

iii
To my group members, Chileshe Kathy Kalimi, Justus Mutunga, Isaac Kawai Steve, John

Mwangi, Sylvia Andesia, David Kiplelgo, Lilian Wameyo, Loraine Sibika, Sharon

Merabtara, Nellie Nowel Masaki, Ajak Jok Ajak, Brian Waballa. I lack words to say you

are my family.

Finally to my good friends who helped me in one way or another; Valerie Kosgei,

Catherine Rop and Shadrack Mwinzi. Thank you all.

You guys made my life in Law school one of the best. Wherever you shall be may the

Lord shine favour upon you.

iv
 LIST OF ABBREVIATIONS

SER- Socio-Economic rights.

C.A- Court of Appeal

SACC- South African Constitutional Court.

CCC- Colombian Constitutional Court.

v
 LIST OF CASES

Kenyan cases.

Mitu-Bell Welfare Society v Attorney General Petition No. 164 of 2011(2013) Eklr

Kenya Airports Authority v Mitu-bell welfare society & 2 others Civil Appeal No. 218 of

2014(2016) Eklr

The institute of Social Accountability & Another v The National Assembly Petition No. 71 of

2013[2015] Eklr

Cases from foreign Jurisdictions.

Coetzee v Government of the RSA 1995 (4) SA 631 (CC)

Pretoria City Council v Walker 1998(2) SA 363 (CC)

Du Plessis v De Klerk [1996] (3) SA 850 (CC); 1996(5) BCLR 658(CC)

S v Makwanyane [1995] (3) SA 391(CC)

Brown v Board of Education 347 US. 483(1954

Cooper v Aaron 358 US 1 (1958)

Ford v Quebec [1988] 2 SCR 712

Rocket v. Royal College of Dental Surgeons of Ontario (1990) 1 SCR 23

Quebec (A.G) v Quebec Protestant School Boards (1984) 2 SCR.

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2009 (9)
BCLR 847 (CC)

Sentencia T-025/04, available at www.corteconstitucional.gov.co/relatoria/2004/t-025-

vi
 TABLE OF CONTENTS

DECLARATION ........................................................................................................................ i

DEDICATION ...........................................................................................................................ii

ACKNOWLEDGEMENT ....................................................................................................... iii

LIST OF ABBREVIATIONS .................................................................................................... v

LIST OF CASES....................................................................................................................... vi

CHAPTER ONE ........................................................................................................................ 1

1.0 INTRODUCTION ............................................................................................................ 1

1.1 Background of the Study .................................................................................................. 1

1.2 Justification for Study. ..................................................................................................... 6

1.2 Research Problem ............................................................................................................. 8

1.3 Research Questions. ......................................................................................................... 9

1.4 Scope of the Study............................................................................................................ 9

1.5 Methodology. ................................................................................................................... 9

1.6 Literature Review. .......................................................................................................... 10

1.7 Chapter Breakdown. ....................................................................................................... 13

1.8 Conclusion...................................................................................................................... 14

CHAPTER TWO ..................................................................................................................... 15

2.0 CONCEPTUALIZING TRANSFORMATIVE ADJUDICATION IN THE CONTEXT

OF DIALOGIC CONSTITUTIONALISM. ......................................................................... 15

2.1 Introduction. ................................................................................................................... 15

2.2 Transformative adjudication. ......................................................................................... 15

2.2.1 Transformative constitutionalism. ........................................................................... 16

2.2.2 Adjudication as a Norm. .......................................................................................... 18

2.3 Certain Concerns on Transformative adjudication......................................................... 22

vii
 2.3.1 Separation of Powers. .............................................................................................. 22

2.3.2 Counter-majoritarian Difficulty. .............................................................................. 24

2.4 Dialogic Approach in Transformative Adjudication. ..................................................... 26

2.5 Conclusion...................................................................................................................... 28

CHAPTER THREE ................................................................................................................. 29

3.0 COMPARATIVE ANALYSIS OF DIALOGIC APPROACH IN ADJUDICATION. . 29

3.1 Introduction. ................................................................................................................... 29

3.2 Canada: “Charter-Speak” and “Legislative sequels.” .................................................... 30

3.3 South Africa. .................................................................................................................. 34

3.3.1 Structural Interdict. .................................................................................................. 34

3.3.2 Meaningful Engagement.......................................................................................... 36

3.4 Colombia: Dialogic Activism and „Tutelas‟ .................................................................. 38

3.5 Conclusion...................................................................................................................... 41

CHAPTER FOUR .................................................................................................................... 42

4.0 MODELLING THE KENYA‟S DIALOGIC APPROACH IN TRANSFORMATIVE

ADJUDICATION. ............................................................................................................... 42

4.1 Introduction. ................................................................................................................... 42

4.2 Constitutional Framework on Dialogic Constitutionalism............................................. 44

4.3 Adjudication and Enforcement of Socio-Economic rights. ........................................... 47

4.3.1 Dialogic Modalities According to Nicholas Orago and Miyawa O. Maxwel. ........ 47

4.3.2 Jurisprudential Analysis of Dialogic Approach in the Kenyan courts. ................... 50

4.3.2.1 Question of Finality of Decision ....................................................................... 52

4.3.2.2 Retention of Jurisdiction. .................................................................................. 53

4.3.2.3 Supervision and Reporting Process. ................................................................. 55

4.3.2.4 The Nature of Orders and Capability of Reviewing. ........................................ 59

viii
 4.3.4 Judicial review and Striking Down of Legislations................................................. 60

4.4 Future of Dialogic Constitutionalism from the Kenyan Courts. .................................... 63

4.5 Conclusion...................................................................................................................... 64

CHAPTER FIVE ..................................................................................................................... 66

5.0 CONCLUSION AND RECOMMENDATION. ............................................................ 66

5.1 Conclusion...................................................................................................................... 66

5.2 Recommendations. ......................................................................................................... 68

5.2.1 The Litigants. ........................................................................................................... 68

5.2.2 The Executive and Legislature. ............................................................................... 69

5.2.3 Civil society and NGO groups................................................................................. 70

5.2.4 The Court ................................................................................................................. 70

BIBLIOGRAPHY .................................................................................................................... 73

ix
 CHAPTER ONE

“I speak for bringing law back to politics and politics back to law” -Frank Michelman

1.0 INTRODUCTION

1.1 Background of the Study

Constitutional Dialogue is a fairly contemporary and nebulous concept that has not been

clearly defined and conceptualized in the Kenya‟s jurisprudence. It connotes that in the

process of interpretation of the constitution; the courts should not be left alone to interpret but

should involve other levels of government. It has been argued that dialogue between courts

and other political branches of governance not only conceive constitutionalism but also

enable the innovative institutional features of the Bill of rights to be better incorporated into

the normative constitutional theory.1

Kenya‟s constitution has been appraised as being transformative as established by Karle

Klare, it is an enterprise of inducing large scale social change through non-violent political

processes grounded in law.2 In the process of transforming a society, it requires a consistent

pro-active and inclusive deliberation on how best to interpret and implement the constitution.

The Courts being the guardian of the constitution ought to be at the forefront in ensuring that

the aspirations of Kenyans are met by the political branches of Government. However, Chief

Justice Hon. Fraser submits that “the relationship between courts and legislatures is complex

and challenging, it however need not be controversial and conflicted as long as each

1
Bateup , Christine A., "The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional
Dialogue" (2006) Brooklyn Law Review 71 New York University Public Law and Legal Theory Working
Papers .Paper 11.http://lsr.nellco.org/nyu_plltwp/11
2
Karle Klare, “Legal Culture and Transformative Constitutionalism”(1998) 14 South Africa Journal on Human
rights 146,149

1
understands and respects the institutional role played by the other.”3The intricacies of this

relation impugn the process of dialogue.

Dialogue as a theory emerges from the literary world as a social phenomenon propounded by

Bakhtin who appraises that life is in its nature dialogic, meaning that to live is to participate

in dialogue: to ask questions, to heed, to respond, to agree. A person participates wholly and

throughout his life in dialogue.4 He describes it as a fundamental form of speech

communication. Zlatev expounds this theory to include an interaction between nature and

nurture.5 Bakhtin reconciles this by submitting that “discourse lives beyond itself in a living

impulse toward the object, that if we are to detach ourselves for the impulse we remain naked

and can learn nothing”6 Dialogism, Holquist emphasizes as an epistemological commitment

capable of being applied beyond linguistics or literary criticism. 7 From a linguistic world,

dialogism develops into the legal paradigm.

In the legal sphere, Jürgen Harbemas and Frank Michelman emerge as the leading theorists of

dialogue. Habermas develops the notion of the “public sphere” as a discursive space, distinct

from the state in which citizens participate and act through dialogue and debate. 8 He

establishes the discourse theory which through a communicative power and the law as a

medium is translated into administrative power hence interpenetration into a system of

3
The Honorable Chief Justice Catherine A. Fraser, “Constitutional Dialogues Between Courts and Legislatures:
Can we Talk?”(2005) Forum Constitutionnel.
4
Mika Lahteenmaki and Hannele Dufya (Eds.) Dialogues on Bakhtin: Interdisciplinary Readings, “ From
„Psycholinguistic‟ to a dialogical psychology of Language aspects of the Inner discourse” (1998) University of
Jyvaskyla Centre for Applied studies ISBN 951-39-2408-4 pg. 87 See also Bakhtin, M.M. “Problems of
Dostoevsky‟s poetics” (1984) Trans. C Emerson.
5
Zlatev, J. “Situated embodiment: studies in the emergence of spatial meaning” (1997) Stockholm: Gotab
6
Bakhtin M.M “The Dialogic Imagination: Four Essays”(1981) Edited by Michael Holquist and Translated by
Coryl Emerson University Of Texas press Austin and London
7
Holquist. M,“ Dialogism. Bakhtin and his world” (1990) London: Routledge. See also ibid( n. 4)
8
Ilan Kapoor, “Deliberative Democracy or Agonistic Pluralism?” The relevance of the Habermas-Mouffe
Debate for Third world Politics(2002) Alternatives 27, 459-487. See also Habermas, “Structural
Transformation of the Public Sphere”, Thomas Burger, trans. (Cambridge: MIT Press, 1989); and Craig
Calhoun, ed. Habermas and the Public Sphere (Cambridge: MIT Press, 1992.

2
rights.9 Discourse to him is one intended to search for arguments and offer justifications,10 he

believes that it excludes no one though the only limits is demarcated by the force of those

with a better argument while the procedure is self-correcting hence participants can change

the rules to facilitate understanding. Procedural democracy, he opines, involves

institutionalization of the corresponding procedures and conditions of communication.11 The

center of this discourse theory is the insistence on procedure and institutions but in addition

to this assertion, it must be inclusive, coercion free and open and symmetrical hence an ideal

speech situation.12 This theory has however immense criticism and alternative proposal due

to its limitations.13

Following the Habermasian school of thought, Frank Michelman14 develops the dialogic

conception of politics, in a response Owen Fiss‟ objections to any identification of law and

politics15 against the Critical studies movement16, argues that politics is normative activity

which he envisions as a process of reasons17, his concept sees politics as pragmatic which is

some kind of ethical argument that is historically and culturally situated and conditioned but

proceeds without foundations hence adopts a potentially transformative attitude towards that

history.18 He therefore finds a connection between politics and law though dialogue.

9
Jürgen Habermas “Between Facts and Norms: Contributions to a discourse Theory of Law and Democracy;
Trans. By William Rehg (1996) The MIT Press, Cambridge Massachusetts
10
Habermas, “Theory and Practice” p. 18.
11
Habermas (Ibid. n.9)
12
Habermas, “Moral Consciousness and Communicative Action,” C. Lenhardt and S. Weber Nicholsen,
trans.(Cambridge: MIT Press, 1990),88-89, 197;
13
See for example Mouffe Chantal, “Deliberative Democracy of Agonistic pluralism”(2000) Political Science
Series 72 Institute of Advanced studies, Vienna December 2000; Anne Elizabeth Stie, “Evaluating the
Democratic legitimacy of Institutionalized decision-making procedures. A deliberative perspective (.nd)
ARENA, Centre for European Studies, University of Oslo
14
Frank L. Michelman,” Bringing the Law to Life: A Plea for Disenchantment” (1989) Cornell Law Review
Vol. 74 Issue 2 January 1989 pg. 256-269
15
Fiss, “The Death of Law”,(1986) 72 Cornell Law review 1,2, 9-10
16
Fiss, “Conventionalism,”(1985) 58 California Law Review 177; See also Fiss, Objectivity and
Interpretations,(1982)34 Stanford Law Review. 739. Cited from Fiss‟s Stevens Lecture
17
Ibid (n.14) pg. 256. See also Michelman, Conceptions of Democracy: The Case of Pornography Regulation,
(1989) 56 Tennessee Law Review.
18
Ibid( n. 14) pg. 256. See also D. Herzog, “Without foundations: Justification in Political Theory” (1985); R.
Rorty, “Philosophy and the Mirror of Nature”. (1979)

3
Both theorists provide perspectives on Constitutional adjudication and Constitution built on

Dialogue theories which form the center of this research, Constitutionalism, Michelman

opines, that it is a theory which as a normative political theory is characterized by its dual

commitments to a government of laws and to self- government which is collaborated by

Habermasian discourse theory.19 Concerning adjudication, which is the process of judging,

Habermas, argues that in order to fulfil the socially integrative function of the legal order and

the legitimacy claims of law, court rulings must satisfy simultaneous conditions of consistent

decision-making and rational acceptability. Which in a rejoinder, Michelman puts it thus

“Constitutional adjudication is a process of advancing the realization of values attributed to

the constitution,”20 Owen Fiss finalizes this by giving responsibility to judges as

constitutional adjudicators to be the organs or the generators of the public values upon whose

effective presence constitutionalism depends upon.21 Thus deriving from Bakhtinian

dialogism22, the object in this case is constitutionalism guided by the values. In the Kenyan

context it should be a Transformative constitutionalism.

Constitutional adjudication falls under a transformative project but narrows down to the niche

played by the judicial institution of governance. It connotes the role played by the courts in

the transformation of a society, as argued by Karle Klare, Moseneke Dikgang23 attempt to

enumerate transformative adjudication, he argues that Constitutional adjudication must occur

within that „holistic, value-based framework which the constitution repository bind its

people24, therefore the jurisprudence emanating from this value- drenched notion is known as

19
Ibid (n.14) pg. 256; See also Frank L. Michelman, “Law's Republic,” (1988) 97 Yale Law Journal. 1493,
1499-1503.
20
Michelman, Supra (n.19) p. 1529; See also CR. Sunstien, “Interest groups in American Public Law,” (1985)
Stanford Law Review 38: 59 where she arrives at reasoned analysis requirement geared towards the discursive
mode of the legislative process. Cited from Harbemas Ibid. (n. 9)
21
Fiss, Ibid (n. 16 above)
22
Bakhtin Ibid ( n. 6)
23
Dikgang Moseneke, “The Fourth Bram Fischer Memorial lecture on Transformative Adjudication”(2002)
Delivered at the Nelson Mandela Civic Theatre, Johannesburg, 25 April 2002.
24
Coetzee v Government of the RSA 1995 (4) SA 631 (CC) para 46 (per Sachs J)

4
transformative adjudication25, though Justice Sachs26 accepts the difficulty of this kind of

adjudication. Ideologically transformative adjudication draws form the liberal legalism school

of thought, this notion however faces the challenge that this kind of jurisprudence leads the

judges to seek to accomplish political objectives.27 Transformative adjudication is a style of

adjudication that calls for a conscious and proactive move which the researcher intends to

establish Dialogic constitutionalism as a solution in analyzing the difficulty of transformative

adjudication.

Dialogic constitutionalism is impliedly evidenced in the constitution under Article 23(3)

which provides for the appropriate remedies for enforcing the Bill of rights in any

proceedings brought under Article 22. Secondly is Article 20(5) which though arguable

implies that in enforcing any right under Article 43 if the state claims it does not have

resources; it is the responsibility of the state to show that the resources are not available but a

court or a tribunal may not interfere with a decision by a state organ. This provision implies a

model of dialogue though with a condition attached to it. Thirdly is, as argued by Peter W.

Hogg and Allison A Bushell that “where a judicial decision is open to legislative reversal,

modification or avoidance, then it is meaningful to regard the relationship between the court

and the competent legislative body as a dialogue”28.Kenyan courts have occasional

invalidated legislations and suspended that invalidation to allow the parliament to rectify that

law, arguably that connotes dialogue.

The concept of constitutional dialogue requires a proactive approach where the courts

imperatively goes beyond its powers or acts innovatively and creatively in opening up a

forum for dialogue. Therefore judicial activism is of essence in creating an environment for
25
Moseneke- Transformative Adjudication Ibid(n. 23).
26
Pretoria City Council v Walker 1998(2) SA 363 (CC) para 101
27
Moseneke- Transformative Adjudication Ibid (n.23)
28
Hogg, Peter W. and Bushell, Allison A. "The Charter Dialogue between Courts and Legislatures (Or Perhaps
the Charter of Rights Isn't Such a Bad Thing after All)." Osgoode Hall Law Journal 35.1 (1997) : 75-124.
http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2

5
dialogue. The judiciary has been traditionally known as a court of finality in decision but

distributive justice demands that the best solution is through an involvement of all actors in

solving the dispute.

Separation of powers as a principle in the constitution has emerged as a challenge in the past

half a decade premised on the principle of distinct, independent yet interdependent. More

specifically the friction between the Courts and the Legislature hence threatening the

independence of the judiciary while threatening to cripple the government. The Concept of

Counter-majoritarian difficulty29 which implies an unelected and less popular judiciary

making a critical decision on behalf of the majority.30 This study proposes a dialogic

approach to finding a better way for keeping the relation going for the good of the people.

The Kenyans engaged in deliberation and dialogue through the stake-holders and

representatives from across the country in coming up with the constitution. It‟s therefore

submitted that Kenyans as we implement the constitution ought to build within themselves a

value system and a culture modeled around Dialogic constitutionalism led by the courts.

1.2 Justification for Study.

This study is premised on the jurisprudence emerging from the court which implies a

difficulty in the exercise of separation of powers and judicial review. Dialogue implies “a

process by which a court of law, in structural suits, entertains an exchange and discussion

between litigants on how best to redress a human rights inconsistency of state policy or

action.”31It is described on the other hand that dialogue over Constitutional meaning should

29
Alexander M. Bickel, “The least dangerous Branch” 16 (Vail-Ballou Press, Inc. 2nd ed.
(1986)
30
Michael c. Dorf, “The Majoritarian Difficulty and the Theories of Constitutional Decision Making”(Dec
2010) Journal of Constitutional Law Vol 13:2 page 286-288
31
Miyawa O. Maxwell “Judicial Enforcement of Socio-Economic rights: A case for Dialogic approach in
crafting appropriate judicial remedies” G62/69047/2011 June 2014 Accessed from
http://erepository.uonbi.ac.ke:8080/xmlui/bitstream/handle/11295/74238/Mawaya_Judicial%20enforcement%20
of%20socio-economic%20rights.pdf?sequence=3

6
be conceived as taking place simultaneously between the judiciary and the democratic

branches of state as partners in the endeavor of constitutional interpretation.32This connotes a

relational basis to be explored further in this study in the exercise of constitutional

interpretation.

This study explains two major concepts; First is the taking for dialogic approaches in

neutralizing the challenges faced in formulation of useful remedies for Socio-economic

rights. The remedies provided under Article 23(3) which the word “appropriate relief”

implies an opportunity for innovation in coming up with the remedies. Secondly is the

declaration of invalidity of legislation and a suspension of its invalidation leaves room for

dialogic approach in letting the legislative arm rectify the law and ensure it meets the

constitutional requirement hence averting a crisis.

In the case of Mitu-Bell Welfare Society v Attorney General33 invoked the structural interdict

where a dialogic model was invoked where upon the court called upon the state to assist by

showing if, and how, it is addressing or intends to address the rights of citizens to the

attainment of the social economic rights, and what policies, if any it has put in place to ensure

that the rights are realized progressively, and how the petitioners in this case fit into its

policies and plans.34This case became a new jurisprudence and implies dialogic approach in

enforcing socio-economic rights despite the fact that parties appealed and the Court of

Appeal watered down the activist judgment by the High court.35

Secondly in The Institute of Social Accountability & Another v The National Assembly36

moved to court questioning the constitutionality of Constituency Development Fund

32
See Bateup (supra) n. 1
33
Mitu-Bell Welfare Society v Attorney General Petition No. 164 of 2011(2013) eKLR
34
Para 78 in Mitu-bell case
35
Kenya Airports Authority v Mitu-bell welfare society & 2 others Civil Appeal No. 218 of 2014(2016) eKLR
36
The institute of Social Accountability & Another v The National Assembly Petition No. 71 of 2013[2015]
eKLR

7
Act(CDF Act). The court invalidated the legislation and in suspending the invalidation

asserted that it would be appropriate in these circumstances as it would allow the legislature

time to correct the defective legislation while avoiding chaos and disarray in a system that

has been established for over a decade.37This case implies of a model of Dialogue which

gives room for the other party to communicate back through a piece of legislation rectifying

the error in the previous law.

This study seeks to establish a dialogic constitutionalism as a model concept of the process

towards achieving a Transformative Constitutionalism narrowing down to the court as an arm

of government capable to conceptualize and facilitate this process through judicial activism in

partnership with the other levels of government. It is submitted that in the process of

achieving a transformation of the society, a deliberative and dialogic model should be used as

a means to an end.

1.2 Research Problem

Though the Kenyan constitution has incorporated by implication provisions in the

constitution it still poses a challenge as to its modelling and practical application.

Constitutional dialogue seem impracticable and close to impossible unless a judicially activist

move is made it forms the center of going beyond tradition to transform without a dispute.

This study seeks to mitigate a solution to the difficulties arising from Separation of Powers

and the Counter-majoritarian difficulty and any other difficulty that may arise forthwith. The

study guided by a comparative analogy shall exam the impact the process of dialogue will

have on the people.

37
Para 148 supra

8
1.3 Research Questions.

Several questions arise in the exercise of Constitutional dialogue. But at the center of this is

study is the issue of under what model of Constitutional dialogue be actively implored in the

Kenyan Legal framework and what impact will it have on majorly the Bill of rights. Some of

the questions include:

1. Does the Kenyan Legal framework appreciate Dialogue as a concept to be exercised

by the courts?

2. How have the Kenyan courts been innovative and creative in modelling the

Constitutional dialogue model?

3. Is Dialogic model the best solution to the Counter- majoritarian difficulty and

Separation of powers?

4. How practicable is Dialogue in the process of enforcing Socio-Economic rights in the

Kenyan context?

1.4 Scope of the Study.

The scope of study is limited to the analysis of exercise of Transformative adjudication by

way of Dialogic constitutionalism in the 2010 Constitution. It shall however be guided by

mainly comparative analogy from foreign jurisprudence mainly the South African, Canadian,

Colombian, Brazilian and Canadian jurisdictions.

1.5 Methodology.

The methodology implore here is qualitative. The research is based on analysis of existing

documents. Secondary methods of date collection have been used in the compilation of this

paper. These include: the use of textbooks, dictionaries of law, Journal articles, newspaper

articles and Internet sources. Scholarly writings from foreign jurisprudence have also been

used and also the 2010 Kenyan Constitution. Statutes have been used in considering the

9
process of Constitutional dialogue from the Legislature. Having a deeper analysis of these

materials shall assist in determining Kenya‟s model of Dialogue.

1.6 Literature Review.

There are a number of scholarly writings on Dialogic constitutionalism mainly from foreign

jurisprudence. Constitutional dialogue has been perceived based on the court‟s invocation of

their powers. These authors shall guide the researcher in exploring the loopholes arising from

exercising Constitutional dialogue in interpretation of the constitutional provisions. Of

importance to mention are two scholarly works in Kenya that have explored this area of

study, they however fail to critically asses the role of the court in dialogue. This study is

centered on this.

Christine A. Bateup38 analyzes the different theories of constitutional dialogue applied around

the world, providing each of its weaknesses and strengths as a model of dialogue, she

assesses the normative value of each theory. Bateup‟s argument arrives at a conclusion that a

normatively satisfying understanding of constitutional dialogue emerges through the dynamic

fusion of the equilibrium and partnership models of Dialogue.39 Her analysis shall guide the

researcher in modelling and remodeling the Kenya theory of Dialogue through analysis of the

emergent jurisprudence and comparative analogy.

Peter W. Hogg and Allison A. Bushell40 enumerate the dialogue being undertaken by the

Canadian Supreme court in mainly striking down legislations and allowing the parliament to

re-aline that piece of legislation to the values in the Canadian Charter. Their model of

dialogue, in this paper, fails to provide the aspect of the power of the court to summon the

other arms of government to explain through a structural interdict. The authors therefore

38
Christine A. Bateup- The Dialogic Promise supra n. 1
39
Supra page 84
40
Hogg and Bushell (Ibid n. 28)

10
define their dialogic theory as where a judicial decision is open to legislative reversal,

modification, or avoidance, then it is meaningful to regard the relationship between the court

and the competent legislative body as a dialogue hence „Charter-speak‟41. The researcher,

will take into consideration the age of the Canadian legal system and shall be guided by their

experience and structure in determining how we can better develop of Dialogical framework.

Vanice Regina Lirio de Valle42 on the other hand draws the researcher‟s attention to the

Brazilian model of dialogic constitutionalism which emerges as a unique one from the

Canadian model. The author explores their history which like the Kenya‟s was transformed

though the promulgation of a new constitution. Their system introduces a constitutional made

of public hearings, Amicus curiae and office of the Justice- Rapporteur who plays a

significant role in dialogue. Among other unique features where the legislative arm fails to

act the court issues a writ of injunction to the legislative arm as omission. This model shall

guide us in expounding our model of dialogue to other areas especially the public.

In Constitutional Conversations,43 Sandra Liebenberg44 evaluates the model of

reasonableness review for positive socio-economic rights claims and compares it to an

approach based on the concept of minimum core obligations. She analyzes this comparison

especially concerning enforcement of socio-economic rights thus introducing a dialogic

approach in interpreting and evaluation both approaches of review. In a reply, Marius

Pieterse45 emerges as a strong proponent of application of Dialogue to translate socio-

economic rights to reality thus introducing the concept of translation which connotes the

process of realizing the socio-economic rights. Thus advocating for an open, responsive and

41
Supra n.38
42
Vanice Regina Lirio de Valle, “Dialogical Constitutionalism Manifestations in the Brazilian Judicial Review”
28th February 2015
43
Stu Woolman and Michael Bishop (eds), Constitutional Conversations (2008) Pretoria University Law Press.
44
Sandra Liebenberg, „Socio-Economic Rights: Revisiting the Reasonableness Review/Minimum core Debate
Chapter 18. Cited from Constitutional Conversations. (Supra n. 6) page 303
45
Marius Pieterse, „Reply: On „Dialogue‟, „Translation‟ and „Voice‟: A Reply to Sandra Liebenberg. Cited for
Constitutional Conversations. (supra n. 6)

11
substantive participation in the exercise of dialogue. Both authors agree that a transformative

project requires a deliberative and dialogic approach in constitutional approach. The

researcher appreciates the lack of analysis on the practicality of exercising dialogue in

interpreting socio-economic rights and seeks to apply their work in this thesis.

Keenan D. Kmiec46 explores the origin of Judicial activism and establishes its meaning

includes First invalidation of the arguably constitutional actions of other branches, secondly,

failure to adhere to precedent, Thirdly, Judicial „Legislation‟, Fourth, Departures from

accepted interpretive methodology and finally result-oriented judging. In a rejoinder, Cesar

Rodriguez-Garavito47 connects the concept of Judicialism and Dialogic constitutionalism. He

argues that the structural remedies adopted by the courts in enforcing Socio-Economic rights

in Latin America, he however submits that greater impact is achieved where constitutional

courts engage in “Dialogic Activism”. Thereby introducing this new concept and addressing

the political and institutional impact such actions hold on the society and government. This

study shall benefit from Cesar‟s work in determining the impact of Kenya‟s constitutional

dialogue on the society.

Orago Nicholas Orago, in his doctoral thesis48 theorizes Dialogic constitutionalism49 as a

concept applicable in the process of realizing the socio-economic rights. In its applicability,

he establishes three levels that is, at the political level in the development of legislative policy

and program framework, Secondly, is at the level of constitutional litigation in the courts and

finally, in fashioning of the judicial remedies after the conclusion of litigation. 50 Orago‟s

46
Keenan D. Kmiec, “The Origin and Current Meanings of Judicial Activism”(2004),92 California Law
Review 1441 Available at: http://scholarship.law.berkeley.edu/californialawreview/vol92/iss5/4
47
Caesar Rodriguez- Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on Socio-Economic
Rights in Latin America. (2011) Texas Law Review Vol 89:1669.
48
Orago Nicholas Wasonga, “Poverty,Inequality and Socio-Economic Rights: A Theoretical Framework for the
realization of socio-economic rights in the 2010 Kenyan Constitution.”(2013) Centre for Human rights,
University of Pretoria. 16th August 2013
49
Supra n.43 Chapter 3 pages 121-161
50
Ibid n. 43 Chapter 4 page 183

12
scholarships, despite being motivated by foreign jurisprudence establishes Kenya‟s ideology

of dialogue, he emerges from a unique school of thought, which the researcher shall heavily

rely on in developing the arguments of how best can a transformative mode of adjudication

assist in achieving dialogic constitutionalism.

Miyawa O. Maxwel51 in his thesis makes a case for dialogic approach in coming up with

judicial remedies which provides evidence of dialogue in the Kenyan constitution. The

scholar establishes the need and importance of applying dialogue in interpretation of socio-

economic rights provision with the other levels of government. This scholarship emerges as a

new conversation which needs to be explored and expounded upon guided by his yardstick.

Miyawa‟s scholarship goes further to draw the framework of Constitutional dialogue in

Kenya, he introduces dialogic Judicialism which presupposes that the judicial arm of

government should share with others the role of constitutional interpretation and thereby

neutralizes the Counter majoritarian difficulty. The researcher seeks to apply his work as a

yardstick and eye opener in developing Kenya‟s Dialogic structure.

1.7 Chapter Breakdown.

Chapter One is the proposal which is the general introduction of dissertation, it provides in

brief what the research shall discuss and achieve at the end.

Chapter Two shall conceptualize Dialogic Constitutionalism by defining and establishing its

theoretical basis as an emerging concept and its need as a solution to the Counter-majoritarian

difficulty. It shall further conceptualize Transformative Adjudication from a dialogic

perspective.

Chapter Three includes an analysis of the foreign jurisprudential ideology of Dialogic

constitutionalism in the endeavor to guide the formulation of the Dialogic approach form the

51
Miyawa Ibid (n.29)

13
comparative jurisdiction. Which includes but limited to; South Africa, Canada, Brazil and

Columbia

Chapter Four shall deal with the Kenya‟s Dialogic Constitutionalism and shall undertake a

theoretical analysis guided by the comparative analysis. The practicality of this concept shall

further critic and a future outlook defined.

Chapter Five finalizes this research by making recommendations and concluding the analysis

of this concept.

1.8 Conclusion.

In conclusion, this chapter lays the background for this study by theorizing the concept of

dialogue and further establishes the objective and the problem intended to be dealt with in the

study. The introduction leads the researcher to the next chapter which intends to

conceptualize Dialogic constitutionalism and lay basis for its application in separation of

powers and the Rule of law.

14
 CHAPTER TWO

2.0 CONCEPTUALIZING TRANSFORMATIVE ADJUDICATION IN THE

CONTEXT OF DIALOGIC CONSTITUTIONALISM.

2.1 Introduction.

The concept of transformative adjudication has emerged in the process of transforming

society. It is a distinct ideology that creates certain obligation on the part of the judge

especially in public interest litigation. An understanding of this concept shall enable the

researcher to determine the process of carrying out constitutional dialogue facilitated

by the judicial arm of government. It requires a critical and analytical look as it will

greatly impact on the rationality, process and end-result of dialogue. The Constitution

through its provisions lays an obligation to the court to transform the legal culture and

the legal history of the Kenyan society.

This chapter shall seek to theorize transformative adjudication through an

understanding of transformative constitutionalism and the concept of adjudication. In

this context, it shall highlight concerns in the process of adjudication that is separation

of powers and counter-majoritarian difficulty. Further, it shall endeavor to bring

dialogic constitutionalism which had been theorized in the earlier chapter into the

context of transformative adjudication. Then finally conclude that Dialogic

constitutionalism is an essential tool in transformative adjudication especially in

developing democracies.

2.2 Transformative adjudication.

These are terminologies or concepts that Moseneke argues in his speech that it is an

invitation upon the judges and judicial officers to a new plane of jurisprudential

creativity and self reflection about the legal method, analysis and reasoning consistent

15
with the transformative roles.52 This obligation must be conceptualized and traced back

to its beginning. In order to establish this concept, I shall analyze two concepts;

Transformative constitutionalism and concept of adjudication.

2.2.1 Transformative constitutionalism.53

Transformative constitutionalism must be looked at from the lens of legal culture and

legal history. Legal transformation endeavors a new schooling of the incoming and

incumbent judges and lawyers of a new mode of thinking committed towards

constitutional values.54 The urgent priority being to transform the judicial mindset,55

this mindset requires an analytical outlook and discursive approach to the culture and

history of the society in that legal setting. Kenyan courts should embolden themselves

with judicial mindset alive to the historical and cultural setting of the Kenyan people

with intent of transforming it for the better future.

Legal culture, Karl Klare and Davis describe it to mean the characteristic legal values,

habits of mind, repertoire of arguments, and manners of expression shared by a group

of lawyers at a given, historically situated time and place, this definition is not

restrictive but connote a commonality of the legal culture.56 It is described thus

52
Dikgang Moseneke- Transformative Adjudication” Supra n. 23
53
See K Klare- Legal Culture and Transformative Constitutionalism Supra n. 2: “By transformative
constitutionalism I mean a long-term project of constitutional enactment, interpretation, and enforcement
committed (not in isolation, of course, but in a historical context of conducive political developments) to
transforming a country‟s political and social institutions and power relationships in a democratic, participatory,
and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social
change through nonviolent political processes grounded in law. I have in mind a transformation vast enough to
be inadequately captured by the phrase „reform‟, but something short of or different from „revolution‟ in any
traditional sense of the word. In the background is an idea of a highly egalitarian, caring, multicultural
community, governed through participatory, democratic processes in both the polity and large portions of what
we now call the „private sphere”
54
Dennis M. Davis & Karl Klare, “Transformative Constitutionalism and the Customary Law” (2010) 26 South
African Journal on Human Rights. Pg 405
55
Du Plessis v De Klerk [1996] (3) SA 850 (CC); 1996(5) BCLR 658(CC) para 119(Kriegler J) where he stated
that “the inarticulate premises, culturally and historically ingrained”
56
Dennis M. Davis & Karl Klare ( Ibid n. 3)

16
 professional sensibilities, habits of mind, intellectual reflexes, recurring argumentative moves

that which counts as persuasive legal argument; the enduring political and ethical commitments

that influence professional discourse; inarticulate premises that are culturally and historically

ingrained 57

Chanock similarly describes it to be a set of assumptions, a way of doing things , a

repertoire of language, of legal forms and institutional practices, it embodies a

narrative, encompassing both past and future, which gives meaning to thought and

actions .58It is different from political ideology since it differs from either being

conservative or liberal, legal culture is a commitment that makes it unique in a

particular country form the other. This leads the lawyers, in the absence of searching

and critical examination of the legal culture and its multifaceted and diffuse influences

on interpretive practices, to a deeply embedded cultural code to shape their ideas and

steer their reactions to legal problem.59 It is however submitted that the aspect of legal

culture that creates tension is not the historical aspect of it but the deeply entrenched

attitudes towards thoughts on the law itself.60

The notion of legal history or legal tradition, draws mainly from the common law and is

closely linked to the notion of legal culture. A legal history cannot be explicitly defined

but can be described based on the past, in the Kenyan context, Mutunga CJ (as he then

was , captures it in describing the intent of the constitution, that there is no doubt that

the constitution is a radical document, that looks to a future that is very different from

our past, in its values and practices. It seeks to make a fundamental change from the 68

57
Ibid See also Du Plessis v De Klerk (1996) 3 SA 850(CC) para 119
58
Chanock, “The Making of South African Legal culture 1902-1936- Fear, Favour and Prejudice” (2001) 23
59
Karl Klare (Ibid n. 1); See also AJ Van der Walt, “Legal History, Legal culture and Transformation in a
Constitutional Democracy”(2005) Stellenbosch University.
60
AJ Van der Walt( Ibid n. 59) page 5-6

17
years of colonialism, and 50 years of independence .61 In the South African context,

Mohammed DP( as he then was) puts it thus,

…what their constitution expressly aspires to do is to provide a transition from those grossly

unacceptable features of the past to a conspicuously contrasting future founded on a recognition

of human rights; democracy and peaceful coexistence and development opportunities for all

South Africans, irrespective of colour, class, belief or sex 62

A legal history or tradition, is captured by certain characteristics that necessitate change

for that tradition. The South African society was characterized by apartheid, inequality,

racism among others, AJ Van der Walt describes this legal history in the context of land

reforms.63 Kenya s legal history was characterized by authoritarianism, a constitution

without constitutionalism64, abuse of political power among others. Legal history led to

the need for transformation to establish a new legal culture. This however cannot be

achieved through constitutional transformation alone, but with judicial interpretation

and application. I shall turn my attention to the notion of adjudication before embarking

on the above.

2.2.2 Adjudication as a Norm.

Judicial function can be best illustrated in the following short story: two people in the

state of nature are squabbling over a piece of property, they come to an impasse, and

rather than resorting to force, turn to a third party, a stranger, for a decision. The court

is an institutionalization of a stranger, however to give a social logical reason, It can be

replaced by the sovereign sending out his officers throughout the realm to speak the

61
Jasbir Singh Rai & Others v Tarlochan Singh Rai& Others Petition No. 4 of 2012 (Review of Court of
Appeal judgment Civil Appeal No. 63 of 2001) para 89. See also In the Matter of the Principle of Gender
Representation in the National Assembly and the Senate Advisory Opinion of the Supreme Court (Reference No
2 of 2012) Para 8 Of Mutunga CJ Dissenting Opinion.
62
S v Makwanyane [1995] (3) SA 391(CC) para 62
63
AJ Van De Walt Ibid(n. 59)
64
Okoth Ogendo „Constitutions without constitutionalism: A reflection on an African paradox‟

18
law and to see it is obeyed.65 A conceptualization of adjudication greatly, though

arguably depends on the theory of law and the applicability of that law. This norm has

developed over time from a dispute resolution mechanism to a value-laden enforcement

mechanism. Its appreciation will guide the researcher in determining what connotes

transformative constitutionalism.

At the core of judicial function is adjudication. Lon Fuller66, from his naturalist theory of

law conceptualizes adjudication, broadly a reductive theory of third party dispute

resolution which is similar to the above anecdote.67 )ts function includes adjudicative

bodies which owe their powers to the consent of the litigants as agreed upon

submissions and tribunals that assume adjudicative powers. 68 This idea of this concept

is traditional in the sense that it is centered on dispute resolution and does not

appreciate Public Interest litigation. Abram Chayes develops from this traditional

conceptualization, and underscores that the trial judge has increasingly become the

creator and manager of complex forms of ongoing relief, which have widespread effects

on persons not before the court and require the judge s continued involvement in

administration and implementation.69 To him, adjudication involves a fact -evaluation

rather than a fact- finding, and upon finding a mischief a cure to it is devised.70

The Critical Legal realists, centered their theory of law on judging and therefore

modelled adjudication as a response to formalism.71 They focus their theory on legal

65
Shapiro, Courts, in 5 Handbook on Political science 321-71 (F. Greenstein & N. Polsby eds. 1975
66
Lon L. Fuller, “The Forms and Limits of Adjudication” (1978-1979) 92 Harvard Law Review 353 at 354
67
See also Alec Stone Sweet & Jud Matthews, “Proportionality Balancing and Global Constitutionalism” (2008)
47 Columbia Journal Transnational Law 71 at 81
68
Lon L. Fuller (supra n. 66)
69
Abram Chayes, “The Role of the Judge in Public Law Litigation”(May, 1976) Harvard Law Review Vol. 89,
No. 7, pp 1281-1316 Accessed from http://www.jstor.org/stable/1340256
70
Abram Chayes (Supra n. 69) pp 1297
71
S Hoctor „Legal Realism‟ in C Roederer & D Moelllendorf Jurisprudence ( 2004) pp 158- By Formalism we
mean the idea that the legal process involves the mechanical application of rules, that judges decide cases „on

19
method and also on false distinctions between public and private law, they critique

externally the place of law in politics and society.72 Realists, as submitted by Elizabeth

Mensch, undermined the fundamental premises of legal realism especially the

distinction between legislation which is subjective exercise of will and adjudication

which is objective exercise of reason.73 The theorist in this school of thought

progressively proposed a recognition of the politics of law with the private and public

realm and the need to engage both the rules and underlying values to change the rule,

this view has had particular implication in the South African Transformative project.74

Owen M. Fiss75, himself a realist, develops the concept of adjudication. He defines

adjudication in the context of structural reform, he puts it thus )t is the social process

by which Judges give meaning to our public values, it is distinguished by its

constitutional character of the public values. 76 This type of adjudication is unique

because of the constitutional character of the public values. The Judge attempts to give

meaning to our constitutional values in the day to day running of the institution.77

This mode of adjudication is premised on the belief that our constitutional values

cannot be fully secured without effectuating basic changes in the structure of the

institution.78 Structural suits arose in the American legal system, whereby the Judges

had to confront state bureaucracy over constitutional values and had to undertake a

the basis of distinctly legal rules and reasons that justify a unique result, and that law and rights are discovered
not made.
72
WB Le Roux & K Van Marle „Crtical Legal Studies‟ in C Roederer & D Moellendorf (supra. 20) Chapter 10
73
E. Mensch „The History of Mainstream Legal Thought‟ in D Kairys(ed)(1998) in The Politics of Law; a
progressive: Critique 3 eds
74
Catherine Albertyn and Dennis Davis „Legal Realism, Transformation and the Legacy of Dugard‟ (2010) 26
South African Journal on Human Rights page 192 discusses the implication of legal realism on the South
African Transformative Constitution.
75
Owen M. Fiss „The Forms of Justice‟ (1979) Yale Law School Faculty Scholarship Series Paper 1220 Cited
from:
http://digitalcommons.law.yale.edu/fss_papers
76
Owen M. Fiss (Supra n. 75)
77
Ibid n. 75
78
Ibid n. 75 pp 2

20
restructuring of the organization and therefore eliminate the threat to the values.79 It

therefore it requires that adjudicator guided by constitutional values to confront what

it is and reforms it to what it should be.

It is a transformational mode of Judging. The judge is tasked to work with the

constitutional values, history and the social ideal to give meaning to the constitutional

values, he searches for what is true, right and just for not only the parties but the society

at large.80 According to Owen Fiss, the Judge is not a participant in the interest group

politics but that his main function is to give concrete meaning and application to the

constitutional values.81 Karle Klare raises the bar for this requirement, that

adjudication is or is supposed to be the most reflective and self- conscious the most

grounded in reasoned argument and justification and the most constrained and

structured by text, rule and principle. 82 It is not just to give a concrete meaning but to

interrogate those values in detail, giving justification. The adjudicator s position is

structured as an ideological and institutional factor that demands the judge to be

objective that is not to express his preference or personal values.83

The argument by Owen M. Fiss, laid the basis for the Transformative project in South

Africa and Kenya and other jurisdictions. Despite certain distinctions and improvement,

it has acquired a status of being a norm since in the American society, some aspects of

their legal culture and tradition were structurally transformed such as desegregation in

schools, but most of the African countries needed a complete transformation rather

79
Ibid n. 75, See for example Brown v Board of Education 347 US. 483(1954; Cooper v Aaron 358 US 1
(1958)
80
Ibid n. 75, See Dworkin Ronald, „No Right Answe‟r, In Law, Morality and Society (1977) Hacker & J. Raz
(eds.)
81
Ibid n. 75
82
Ibid n. 23
83
Ibid n. 75, See also Owen Fiss, „Objectivity and Interpretation‟(1982) Stanford Law Review 744-745; See also
Thomas Nagel, „ Subjective and Objective‟, in Mortal Questions 196(1979) Harvard Law Review.

21
than a structural reform, the basis laid by Owen, acts as a guide to the place of

adjudication in Transformative projects, hence Transformative Adjudication. However,

certain concerns arise in Transformative adjudication which I shall explore in this part.

2.3 Certain Concerns on Transformative adjudication.

Law and politics, as put by Karle Klare and others, cannot be insulated from each other;

like all aspects of human and social life, the law is radically contextual, inescapable

positioned within a larger set of social and political structures that cannot be observed

or described from an Archimedes point outside of culture and language.84Boshoff on the

other hand, opines that law is politics, in the context of being dialogic politics85

admonishing Owen Fiss on the death of law? 86, Frank Michelman reconciles this, in a

response to Owen Fiss, that laws is best understood as a form a politics hence making a

plea through dialogue, that we can bring the law back to politics and politics back to the

law.87 Politics therefore cannot be ignored in adjudication, they are either part or

against it. Two concerns among others arise concerning politics and adjudication these

are: Separation of powers and Counter-majoritarian.

2.3.1 Separation of Powers.

Separation of powers is a concept, described by Montesquieu thus:

When the legislative and executive powers are united in the same person, or in the same body of
magistrates there can be no liberty; because apprehensions may arise, lest the same monarch or
senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no
liberty, if the judiciary power be not separated from the legislative and executive. Were it joined
with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for

84
Ibid n. 75 See also AJ Van der Walt Ibid n. 59
85
A. Boshoff, „Law as Dialogical Politics‟(2004) TSAR 2004.4
86
Owen M. Fiss-The Death of Law? Ibid 51
87
Frank Michelman- Bringing the Law to Life Ibid n. 14

22
 the judge would then be the legislator. Were it joined to the executive power, the judge might
behave with violence and oppression. 88

It connotes, three distinct principles, first, that the same persons shall not form part of

more than one of the three organs of government, one organ of government should not

control or interfere with the work of another and finally that one organ of government

should not exercise the functions of another.89 Lord Artkins famously stated that power

tends to corrupt and absolute power corrupts absolutely . )n principle it means, the

three levels of government distinct, independent but yet interdependent.90 Power is

therefore distributed, but each body acts as a check and balance against each other.

The ways and means of exercising the doctrine of separation of powers is unique in each

country in the modern democracy. The exercise of each power is intended to, by all

means possible, to ensure that there is no interference in the exercise of the distinct

function or that there is no tension existing between the three levels of government that

could cripple the government. The concern arises in the exercise of checks and balance

through review from the court.

The Judiciary has time and again come under fire in the attempt to review decisions of

the Executive and Legislature. At certain times, tension has risen to an extend of

interfering with the workings of the judiciary. The issue being whether it is justified for

the courts, to interfere and purport to make decisions on behalf of the rest of the level of

government and on the other hand, whether the courts being guardians of the

constitution should defer from interfering with the political decision and stick

formalistically to what they are mandated to do. To deal with this issue, several scholars

88
Montesquieu „The Spirit of Laws Book XI‟ (1873) 174.
89
Montesquieu (supra n. 88)
90
Article 6(2) of the Kenyan Constitution.

23
have proposed for dialogue between the levels of government. However, the researcher

shall later explore dialogue as a tool facilitated by the judiciary.

2.3.2 Counter-majoritarian Difficulty.

Counter-Majoritarian Difficulty, is understood as best described by Alexander Bickel

that when the Supreme court declares unconstitutional a legislative act or the action of

an elected executive, it thwarts the will of representatives of the actual people of the

here and now; it exercises control, not in behalf of the prevailing majority, but against

it. 91 Waldron goes further to argue …in allowing decisions by the courts to override

legislative decisions fails to satisfy the important criteria of political legitimacy .92 On

the contrary, Mark Graber justifies the role of judicial review that it does not serve to

thwart or legitimate popular majorities but rather, the practice alters the balance of

power between the various political movements that struggle for power in a pluralist

democracy.93 It essentially means, the problem or difficulty arising where the court

makes a decision on behalf or as a review to the political realm, that is as between

legislative action and court review. It is centered on public policy and opinion.

This difficulty arises where the Judges, who are unelected and perceived unpopular and

guaranteed of office tenure purport to make a decision on behalf of a greater majority,

who are politically represented by the legislators by virtue of being voted in by the

people. When Judges invalidate a law, they potentially disrupt the relationship between

elected officials and their constituents.94 Friedman interrogates this concept and draws

a distinction between process and substance majoritarianism, process majoritarianism

91
Alexander M. Bickel- The Least Dangerous Branch Ibid. 29
92
Waldron, Jeremy „The Core of the Case against Judicial Review‟ Yale Law Journal‟ (2006) 115: 1346- 1406
93
Mark A. Graber „The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary‟ (1993) Studies in
American Political Development 7(1); 35-73
94
Kastellec Jonathan P. „Empirically Evaluating the Counter-majoritarian Difficulty: Public opinion, state
policy and Judicial Review before Roe v Wade ‟ (2016) Journal of Law and Courts, Princeton University Cited
from http://www.journals.uchicago.edu/t-and-c

24
to him, encompasses the …extent to which the judiciary is accountable to majority

will 95 while the substance majoritarianism involves, judicial decisions that interfere

with or actually comport with majority rule. 96 He goes further to break down that

substance majoritarianism to have two components; source majoritarianism which

seeks to respond on whether the courts have relied upon evidence of popular will in

deciding the case 97 and secondly, the result majoritarianism which examines whether

the actual results of judicial decisions correspond with that of the majority in

preference. 98

The concept of counter-majoritarianism is a two-way traffic, today a judge maybe pro-

majoritarian and the next anti- majoritarian depending on the public opinion. It must be

understood that for a judicial decision to be counter- majoritarian, it must replace the

status quo with a new policy even farther away from the public s ideal point while for a

judicial decision to be pro-majoritarian, it must replace the status quo with a policy

closer to what the public prefers.99 It means that a simple critic or a dissent on the

court s decision does not suffice to be counter-majoritarian but it must be a substantive

change of the majority ideal point.

However, in a transformative project there is bound to radical judicial decisions with

the aim of transforming the society which may turn out to be either pro or counter

majoritarian depending on the legal culture and history. This therefore presents a

difficulty as it would certainly, render the judicial decision impracticable or bad law

depending on the public opinion. To cure this, proponents of dialogue, advocate an

95
Barry Friedman, „Dialogue and Judicial Review‟ (1993) Michigan Law Review 93: pp 588
96
Barry Friedman ( Supra n. 95) pp 589
97
Barry Friedman (Ibid n 95) pp 589
98
Barry Friedman(Ibid n. 95) pp 589 See also Bassok, Or, and Yoav Dotan “Solving the Counter-majoritarian
Difficulty?” (2013) International Journal of Constitutional Law 11 (1): 13–33 who make a similar distinction.
99
Berry, Chris, Ethan Bueno de Mesquita, and Jacob Gersen, „Pro-Majoritarian Courts.‟( 2013)
Working paper, Harris School, University of Chicago.

25
inclusive interpretation and a room for discussion before arriving at a decision that may

end up being counter-majoritarian.

2.4 Dialogic Approach in Transformative Adjudication.

In this part, after conceptualizing transformative adjudication, the researcher seeks to

bring in to context the dialogic approach in transformative adjudication. It must be

noted that scholars on adjudication had earlier insinuated dialogue as an approach to be

used in judging in certain circumstance that are important to the public.

Lon Fuller, through his polycentric concerns defined as a matter in which a decision

would have a wide unforeseen consequences for a multitude of other people who are

not before the court.100 He envisions a mixed form of adjudication101 which he argues

that a process of collaborative decision making which ought to give an opportunity for

reformulation and clarification in the process of adjudication.102 He envisages a

deliberations from political institutions through conduct of public hearings and

incorporation of those views in the decision making process.103 His polycentric

approach is classically in tandem with dialogic constitutionalism through structural

interdict which the researcher shall analyze in the subsequent chapters.

In Structural Reforms, Owen M. Fiss analyzes the place of the judge in giving meaning to

the values and provides a perspective on dialogue that the judge is entitled to exercise

power only after he has participated in a dialogue about the meaning of the public

values.104He goes ahead to establish that there are special qualities that are required in

dialogue, First he argues, that judges are not in control of their agenda, but are

100
Lon L. Fuller- The forms and limits of adjudication Ibid n. 66
101
L Fuller & KI Winston- The forms and limits of adjudication Ibid. 66, at 353.
102
Lon L. Fuller & Winston- The forms and limits of adjudication Ibid 66
103
Lon L. Fuller & Winston- The forms and limits of adjudication Ibid n. 66
104
Owen M. Fiss- The Forms of Justice Ibid n. 75

26
compelled to confront grievances or claims that would otherwise prefer to ignore. 105

Secondly, Judges do not have full control over whom they must listen to, 106 Thirdly,

that Judges are compelled to speak back or to respond to the grievance or the claim

and to assume individual responsibility for that response 107 and finally that Judges

must also justify their decisions .108 Therefore the task of a judge should be seen as

giving meaning to our public values and adjudication as the process through which that

meaning is revealed or elaborated.109

Further, Chayes relying on Bentham s Judge and Company 110, puts it that judicial

participation should not be by way of sweeping and immutable statements of the law,

but in the form of a continuous and rather tentative dialogue with other political

elements.111 That in such a setting, the ability of a judicial pronouncement to sustain

itself in the dialogue and the power of judicial action to general assent over the long

haul become the ultimate touchstone of legitimacy.112 The dialogue envisaged by

Chayes, connotes an inclusion of the political realm in Public Law Litigation.

Finally, Karle Klare justifies the place of dialogue in adjudication that in order to be

transformative and transparent, rights discourses and legal reasoning need to be more

candid and self-conscious about the politics of adjudication, indeed, they need to make a

virtue of what traditionally been thought as a dilemma113. He strongly admonishes that

105
Owen M. Fiss- The Forms of Justice Ibid n. 75 pp 13
106
Owen M. Fiss- The Forms of Justice Ibid n. 75 pp 13
107
Owen M. Fiss- The Forms of Justice Ibid n. 75 pp 13
108
Owen M. Fiss- The Forms of Justice‟ Ibid n. 75 pp 13
109
Owen M. Fiss- The Forms of Justice Ibid n. 75 pp 14
110
See C. J W Allen, „ The Law of Evidence in Victorian England‟ (1997) 54; See also Stephen C. Yeazell, „
Judging Rules, Ruling Judges‟, (1998) Law and Contemporary Problems Vol 61: No. 3
111
Abram Chayes( Ibid n. 69) pp 1316
112
Abram Chayes( Ibid n. 69), See also Alexander Bickel, „The Supreme Court, 1960: The Passive Virtues,‟
(1982) 75 Harvard Law Review 40, 47-51
113
Karle Klare Ibid n. 2

27
in the new South African legal regime that it lacks a strong tradition of substantive

political discussion and contestations through a medium of legal discourse. 114

Therefore, based on the above it is inevitable to assert that dialogue indeed plays a key

role in adjudication especially Transformative adjudication however, there are several

issues arising as we shall discuss later, that impede or render dialogue in transformative

adjudication close to impossible especially in a legal culture like the Kenyan one. A

society must converse within itself to transform itself to a better posterity.

2.5 Conclusion.

In conclusion this chapter has delved into conceptualizing Transformative adjudication

in order to establish the essence of Dialogic constitutionalism in adjudication. This

concept is therefore intertwined and is placed upon the Judge or the adjudicator to

facilitate dialogue to achieve a just and right decision. However, it should be noted

concerns on the issue of separation of powers and counter-majoritarian Difficulty which

the researcher establishes that Dialogue can deal with these concerns.

The next chapter delves into a comparative study where Dialogic constitutionalism has

been done and what the place of the adjudication is.

114
Karle Klare. Ibid n. 2

28
 CHAPTER THREE

3.0 COMPARATIVE ANALYSIS OF DIALOGIC APPROACH IN ADJUDICATION.

3.1 Introduction.

Dialogic constitutionalism has been developed in other jurisdiction, the model adopted

in those jurisdictions shall be a guide in determining the approach to be undertaken by

the Kenyan courts. It shall guide the researcher to understand the loopholes and find a

method avoiding them in order to achieve the normative value of Dialogic

constitutionalism. This chapter shall endeavor to explore the Canadian, South African

and Columbian models of Dialogic approach to adjudication. Guided by their practice

shall seek to determine the place and role of the Judge in constitutional dialogue.

Before delving into comparative study. It must be understood that, Mark Tushnet

describes Dialogue as a weak form of judicial review as an alternative to strong

forms of judicial review.115 This approach however reckons its own weaknesses, which

David Landau develops a dynamic theory of judicial review which connote a set of tools

to exist between weak- form and strong form of judicial review, his argument is

developed from an understanding of the fragile level of our democracy. 116 Therefore as

much as dialogue is a weak form of judicial review, there is need to look into the method

of carrying out dialogue as Christine Bateup, assesses the normative potential of

dialogue theories, and arrive at an understanding that the mode of dialogue that has the

potential of the highest normative potential is one that fosters a society- wide and

institutional aspects.117 In comparing and analyzing Dialogic approach, one should be

115
Mark Tushnet, „Social Welfare Rights and the Forms of Judicial Review‟(2004) 82 Texas Law Review 1895.
See also Mark Tushnet, „New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based
Worries‟,(2003) 38 Wake Forest Law Review 813, 821 835;
116
David Landau, “A Dynamic Theory of Judicial Role‟ (2014) Boston College Law Review November 2014
117
Christine A. Bateup- The Dialogic Promise Ibid n. 1

29
alive to the different models of constitutionalism and the levels of democratic maturity

in order to determine the best theory of constitutional dialogue.

3.2 Canada: “Charter-Speak” and “Legislative sequels.”

Canadian Charter of Rights and Freedoms of 1982 is an instrument governing the

Canadian legal framework, in it are provisions that distinctively limit the legislature and

makes provisions on derogation on rights that in turn promotes dialogue between the

judiciary and the legislature.118 Hogg and Bushell develop the notion of dialogue from

the Canadian jurisprudence, they define it as situations where a judicial decision to

strike down a legislation is open to legislative reversal, modification, or avoidance, it is

meaningful to regard the relationship between the court and the competent legislative

body.119 They conceptualize dialogue to be when the legislature is forced as a result of

the courts review of the legislation to the charter values and requires them to carry out

the objectives or the legislature being forced to modify its objectives to accommodate

the concerns raised the courts.120 Their scholarship sparked a wide study on the subject

hence proponents and critics on the same.

In Ford v Quebec121, the Supreme court of Canada struck down Quebec s law banning the

use of languages other than French in commercial signs, in a response after the decision,

a new law was enacted that continued to ban the use of any language but French in all

outdoor signs.122 In Rocket v Royal College of Dental Surgeons of Ontario123 where the

supreme court struck an Ontario prohibition on advertising by dentists. In a response,

118
Sections 1 and 33 of the Charter of Rights and Freedoms 1982
119
Peter W Hogg and Allison A. Bushell- The Charter Dialogue between Courts and Legislatures Ibid n. 28
120
Hogg and Bushell- The Charter Dialogue between Courts and Legislatures Ibid n. 28
121
Ford v Quebec[1988] 2 SCR 712
122
Hogg and Bushell - The Charter Dialogue between Courts and Legislatures Ibid n. 28. Refer An Act to
Amend the Charter of the French Language, S.Q. 1988, c. 54, s. 10.
123
Rocket v. Royal College of Dental Surgeons of Ontario (1990) 1 SCR 232

30
new guidelines were enacted.124 It must be noted that such may take long before they

are enacted, it is not an immediate kind of response.125

Dialogue, Hogg and Bushell assert that it can be an apt description of this relationship

between the courts and the legislative bodies. It is hard to claim that an unelected court

is thwarting the wishes of the people126; this argument propound dialogue as a solution

to the counter-majoritarian difficulty. The Charter speak, they purport that the resulting

language of post charter laws themselves, particularly in statutory preambles and

purpose clauses suggests that the Canadian legislatures are engaging in a self- conscious

dialogue with the judiciary.127 They justify that any legislation is dialogue, because

legislative action is a conscious response from the competent legislative body to the

words spoken by the courts.128 Thus legislative sequel is dialogue hence charter speak.

Concerning the issue of politics and the law, they argue that judicial review is not a a

veto over the politics of the nation 129 but rather the beginning of a dialogue as to how

best to reconcile the individualistic values of the charter with the accomplishment of

social and economic policies for the benefit of the community as a whole.130

In a response to Hogg and Bushell, Christopher Manfredi and James Kelly131 in a find

empirical and normative issues to their thesis, that judicial nullification is an indicator

of judicial interference with the democratic will.132 They thus reckon that the dialogue

124
0. Reg. 220/94, s. 1 (enacted pursuant to the Dentistry Act, 1991, S.O. 1991, c. 24).
125
See for example Quebec (A.G) v Quebec Protestant School Boards (1984) 2 SCR. 66 which 9 years before a
new legislation was enacted.
126
Hogg and Bushell Ibid n. 28
127
Hogg and Bushell Ibid n. 28
128
Hogg and Bushell Ibid n. 28
129
Ronald Dworkin, “The Forum of Principle” (1981) 56 New York University Law Review 469 at 469
130
Hogg and Bushell Ibid n. 28 at 105
131
Christopher P. Manfredi & James B. Kelly, „Six Degrees of Dialogue: A Response to Hogg and
Bushell‟(1999) Osgoode Hall Law Journal 373: 513-527. Accessed from
<www://digitalcommons.osgoode.yorku.ca/ohlj/vol37/iss3/1>
132
Christopher Manfredi & James Kelly Supra n. 131 above

31
between courts and legislatures is both more complex and less extensive hence

developing the six degrees of dialogue which they further classify as either positive and

dialogue.133 They contend that legislative sequels must be positive exercise to constitute

genuine dialogue and to facilitate an equal relationship between judges and legislators

since a negative approach to legislative sequels undermines the establishment of an

equal relationship and instead facilitates a hierarchical relationship that limits genuine

dialogue.134 Baker and Knoff135 emphasize this notion on the dialogue being a two- way

communication in which the parties involved respond to each other.136

In revisiting after a series of criticism, the issue of counter-majoritarian difficulty still

lingers around hence terming the charter design a bad thing. (ogg, Bushell and

Wright137 revisit the implication of their theory on the Supreme court since 1997, the

court in Vriend v Alberta138, )acobucci J. made a general point out that the work of the

legislature is reviewed by the courts and the work of the court in its decisions can be

reacted to by the legislature in the passing of new legislation. Also in M v (139,

Bastareche J notes that Judicial review was not a veto over the politics of the nation,

but was rather the beginning of a dialogue between courts and legislatures.140

133
Christopher Manfredi & James Kelly Ibid n. 131; “Positive Dialogue is characterized by legislative actors
amending sections, while negative dialogue involves elected officials repealing Acts and Sections of Impugned
laws, engaging in legislative “Prequels” before the Supreme Court of Canada decides a case”
134
Christopher Manfredi & James Kelly Ibid n. 131
135
Baker D and Knopff R. „Minority retort: A parliamentary power to resolve judicial disagreement in close
cases‟
(2002) Windsor Yearbook of Access to Justice 21: 348.
136
See Christopher Manfredi & James Kelly Ibid n. 131
137
Peter W. Hogg, Allison A. Bushell Thornton and Wade K. Wright, “Charter Dialogue Revisited: Or “Much
Ado About Metaphors”( 2007) Osgoode Hall Law Journal 45.1: 1-65. Retrieved from:
<www://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss1/2>
138
(1998) 1 S.C.R 493 at 566-67
139
M v H [1999] 2 S.C.R 3 at 181
140
Supra n. 139 at 181

32
Iacobucci J, carries on this theme in Bell Express Vu Limited Partnership v Rex141 where in

justifying striking down a legislation, that it would force parliament to revisit the issue,

that in this way, a forum for dialogue among the branches of governance would be

retained142. Emanating from this, they hold that there is no need to invoke the idea of

dialogue in order to insist that judge not engage in reconstructive surgery on legislative

provisions that would otherwise be unconstitutional, nonetheless the idea of dialogue is

a useful way or articulating the constraint that should be felt by Judges.143

The above cases imply the appreciation of the idea of dialogue by the Canadian Supreme

court after Hogg and Bushell developed this notion. However, arising from this revisit,

MacFarlene dissects the response to be compliance, he argues that positive response

such as amendment or replaced legislation does not automatically count as dialogue, he

categorizes the response to be either straight compliance or dialogic response, thus

finding that legislative responses should not count as dialogue because they amount to

the legislature following the court s orders.144

Thus, to reconcile this, the researcher notes the nature of this idea of dialogue still

developing and the it metaphorical and normative remodeling as scholars still delve

into it. It is submitted that this conversation on dialogue shall greatly guide the

researcher in determining Kenya s model.

141
[2002] 2 S.C.R 559
142
Supra n.141 at 598-99, this was a minority view.
143
Hogg, Bushell and Wade Ibid n.137
144
Emmett MacFarlene, „Dialogue or Compliance? Measuring legislatures‟ policy responses to court rulings on
rights‟(2013) International Political Science Review 34:39 Accessed from
<www://ips.sagepub.com/content/34/1/39>

33
3.3 South Africa.

3.3.1 Structural Interdict.

The Kenyan constitutional framework shares a great similarity with that of the South

Africa despite different legal history, the transformative initiative shares great

similarities. Structural interdict is a remedy that encompasses a dialogic approach to

judging, essentially it is a tool of dialogue that is effective in enforcing socio- economic

rights that courts in granting appropriate remedies may grant.145 It requires parties to

report back to court, which therefore acquires the courts a supervisory jurisdiction

upon the government and other actors, known as ex post jurisdiction.146 The researcher

in assessing the South African jurisprudence shall concentrate on the place of the

adjudicator in exercising the dialogic approach.

Structural interdict, Owen Fiss defines it to be the formal medium through which the

judiciary seeks to reorganize ongoing bureaucratic organizations so as to bring them

into conformity with the Constitution. The judge seeks to reform institutions by

directing officials as to what actions they must take to eradicate unconstitutional

condition the judge is typically engaging in ongoing supervision of officials compliance

efforts. Structural interdict has certain salient characteristics, First, the court establishes

the breach of a right by the government, then directs that government to fulfil its duties

under the constitution subsequent to which the government and other actors are

required to prepare and present before the court the detailed situation report which is

mostly by way of affidavits on the possible solutions.147 Secondly, the court assesses

through a hearing process involving all parties which the court ways against the
145
Rosalind Dixon, „Creating Dialogue about Socio-economic Rights: Strong Form versus Weak Form Judicial
Review revisited‟(2007) International Journal of Constitutional Law 393
146
Mitra Ebadolahi, „Notes: Using Structural Interdicts and The South African Human Rights Commission to
achieve Judicial Enforcement of Economic and Social Rights in South Africa‟, (2008) New York University Law
Review, Vol. 83 1565-1606 at 1591.
147
Ian Currie and Johann de Waal(Eds.), Remedies, in The Bill of Rights Handbook (2005) 5th Edition

34
constitutional yardsticks.148 Thirdly, a final order which incorporates all the proposed

plans and any other orders necessary, the court may amend its own decisions and

failure to obey may attract contempt of court proceedings.149 The use of structural

interdicts places the court at the center of the reform intended as it is the engineer of

the whole process.

The South African Courts invoked the structural interdict in Government of the Republic

of South Africa v Grootboom150 which was an eviction case about Irene Grootboom and

nine hundred others who were residents in an informal area. Upon eviction from a

private land, they moved to the high court seeking recourse, the High court established

that the government was under obligation to provides basic shelter to children who had

been rendered homeless alongside their parents.151 The court upon hearing the matter,

the judge made an order declaring that the respondents had certain obligation and gave

them three months to report on the implementation of the order. On the next hearing,

the government offered an alternative to the previous order. The final judgment agreed

with the high court and the alternative accommodation offered by the Government and

the court made no further order.

Further, in Minister of Health v Treatment Action Campaign( TAC)152 this concerned

accessibility of the HIV/AIDS drug known as navirapine, the court made a supervisory

order that imposed a duty on the government to take certain steps and report to court

the progress.153 Botha J ordered the government to develop an effective, comprehensive

and progressive national program aimed at preventing mother to child transmission

148
Supra (n. 147)
149
Ibid (n. 147)
150
[2000](11) BCLR 1169 (CC)
151
Violation of Section 28(1) of the South African Constitution.
152
[2002](4) BCLR
153
Treatment Action Campaign v Minister of Health and Others, 2002(4) BCLR 356 (A)

35
and to report back to court within 3 months.154 Similarly, in S v Zuma and 23 similar

cases155, upon the urging of an amicus concerning making reports to the court on the

existing situations and plans to solve the constitutional breach of juvenile offenders

rights. The court gave a different date for consideration.

Dialogue is alluded in the above cases, Marius Pieterse156 reckons that the court acts as

the dual translators of and translation venues for socio- economic rights, the

adjudication, he opines, provides virtually the only space for contributory voices to the

dialogue over the meaning of socio-economic rights, it thus provides a venue of

empowerment of the beneficiaries to participate in a more or less equal footing with

more powerful institutional players.157 The place of the court in dialogic approach at

Judging using the structural interdict remedy is at the center stage of providing a venue,

analyzing the claims brought before the court, finding the fault, finding a justification for

invoking supervisory jurisdiction and thereby allowing time for the parties to make

plans and to report back. This observation of the South African use of structural

interdict shall guide us in determine the Kenya s approach to dialogue from the court.

3.3.2 Meaningful Engagement.

Meaningful is different from the Structural interdict, Chenwi and Tissington158

conceptualize this concept that it happens when communities and government talk and

listen to each other, and try to understand each other s perspectives so that they can

154
Ibid n. 38 para 85-87
155
[2004](4) BCLR 419(E)
156
Marius Pieterse „On „dialogue‟, „translation‟ and „voice‟: A reply to Sandra Liebenberg‟ Cited from Stu
Woolman & Michael Bishop ( Eds.) Constitutional Conversations(2008) Pretoria University Law Press
157
See D Davis „Soco-economic rights in South Africa: The record of the Constitutional Court after 10
years‟(2004) 5(5) Economic and Social Rights Review 3 7.
158
Lilian Chenwi & Kate Tissington, „Engaging meaningfully with Government on Socio- economic rights: A
focus on the right to housing‟(2010) Community Law Centre

36
achieve a particular goal159. The process should be well structured, coordinated,

consistent, comprehensive and not misleading, secondly it should take into

consideration language preference and finally enable individuals or communities to be

treated as partners in the decision-making process.160 It is different from consultation

or mediation since both parties are equal and the decision fronted from the process is a

decision of both parties.

In Occupiers of 51 Olivia Road and Others v City of Johannesburg and others.161 The

constitutional court understood meaningful engagement to a two- way process in

which the City and those about to become homeless would talk to each other

meaningfully in order to achieve certain objectives. 162 This was a matter challenging

the decision by the City of Johannesburg policy to demolish residences that we termed

to be bad buildings for the safety and health reasons. The (igh court found that the

housing program was in breach of the constitutional and statutory obligations while the

Supreme Court of Appeal ruled in favor of the City based on the legislation permitting

eviction of residents living in unsafe and unhealthy buildings. On further appeal to the

Constitutional Court, the court issued an interim order in the matter compelling the

parties to meaningfully engage amongst themselves in a bid to iron out their

differences. It found it inappropriate to issue eviction orders against the appellants

without giving meaningful engagement a chance.163

Meaningful engagement is an important dialogic tool as it ensures mutual

understanding, respect and accommodation of each other s concerns as it was stated in

159
Lilian Chenwi & Kate Tissington ( Ibid n. 158)
160
Lilian Chenwi & Kate Tissington( Ibid n. 158)
161
2008 5 BCLR 475 (CC) hereinafter Olivia road case
162
Olivia Road Case (Supra n. 161) para 14
163
Olivia road Case ( Ibid n. 161) para 22

37
the Constitutional court elsewhere in Joe Slovo case164 which was also an eviction case

that the requirement of engagement flows from the need to treat residents with respect

and care for their dignity. 165 It must be noted that meaningful engagement occurs

before an eviction since it can prevent dissatisfied people from having to go to court. 166

The dialogic approach anchored on the court arises when the court orders engagement

and lists out the objectives, thus directing how the engagement is to go about and

thereby issues an interim order. Thereby the court gives room for the parties to figure

out the best solution. The nature of this case is one that requires a balance and a

response the need to solve the situation keeping in mind the history of the people of

South Africa. This remedial approach by the South African is a guide to the Kenya s

approach keeping in mind the historical setting.

3.4 Colombia: Dialogic Activism and „Tutelas’

Colombia has enjoyed democracy for a long time since they enacted their constitution in

1991 and started the process of reforming their society. Their institutional framework

portrays weaknesses especially the legislature and executive167 partly due to a weak

party system.168 )n a response, the assembly created a new Defensor del Pueblo

Defender of the People or the Ombudsman charged with constitutional rights by

investigating wrongdoing, mobilizing public opinion, and filing judicial actions and

strengthened the Attorney General Procuraduría General de la Nación . Further,

164
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2009 (9) BCLR 847 (CC)
para 238 and 244
165
Olivia Road case(Ibid n. 161) paras 10-11; Grootboom case( Ibid n.150) para 83
166
Lilian Chenwi & Kate Tissington (Ibid n. 158)
167
See Rodrigo Uprimny, The Constitutional Court and Control of Presidential Emergency Powers in Colombia,
in Democratization and the Judiciary: The Accountability Function of Courts in New Democracies( 2004) 46,
65 tbl.3 where the President often used his sweeping emergency powers to legislate directly, by passing
congress all together; 1970-1991; See Ronald R. Archer & Matthew Shugart, The Unrealized Potential of
Presidential Dominance in Colombia, in Presidentialism and Democracy in Latin America,(1997) 110, 133-6
Cambridge University Press.
168
See George Tsebelis, Veto Players, How Political Institutions Work (2002) Princeton University Press,
Princeton.

38
The Colombian Constitutional Court (hereinafter CCC) was given the power to hear

appeals from lower court dispositions of an individual complaint procedure called

accion de tutela. )n nature, the Tutelas are inexpensive to bring, are heard very

quickly, and can be used to enforce any of the fundamental rights in the constitution

against any public actor as well as the private actor.169

The CCC has been described as activist in its approach to among others Tutelas. In

January, 2004, the CC aggregated the constitutional complaint of 1,150 displaced family

and handed down the famous T-025 of 2004170 which the court declared that the

humanitarian emergency caused by forced displacement constituted an

unconstitutional state of affairs, it found to be a massive human rights violation which

it associated with the systemic failures in state action.171 The court ordered as a mean to

eradicate the root causes, a series of structural measures which spawned to a lengthy

implementation and follow up process that still continues up to date.172

There are several other decisions handed down by the CCC that in their nature are

structural and vary in circumstance which include non- compliance with the state s

obligation to affiliate numerous public officials to the social security system173, massive

prison over-crowding174, lack of protection for human rights defenders175, and failure

169
See Manuel José Cepeda, Judicial Activism in a Violent Context: The Origin, Role, and Impact of the
Colombian Constitutional Court,(2004) in 3 Washington University Global Studies Law Review 529, 554- 557
170
Corte Constitucional [C.C.] [Constitutional Court], enero 22, 2004, Sentencia T-025/04, available at
<www.corteconstitucional.gov.co/relatoria/2004/t-025-04.html>
171
T- O25 of 2004(Supra n. 170) at 80-81
172
T-025 of 2004 ( Ibid n. 170) at 75-80.
173
C.C., febrero 2, 2000, Sentencia SU-090/0, available at
<www.corteconstitucional.gov.co/relatoria/2000/SU090-00.html> , Sentencia T-535/99, available at
<www.corteconstitucional.gov.co/relatoria/1999/T-535-99.html> ; C.C., marzo 5, 1998, Sentencia T-068/98 ,
available at <www.corteconstitucional.gov.co/relatoria/1998/T-068-98.html> ; C.C., Sentencia SU-559/97,
available at <www.corteconstitucional.gov.co/relatoria/1997/SU559-97.html>
174
C.C., Sentencia T-153/98, available at www.corteconstitucional.gov.co/ relatoria/1998/ T-153-98.html>
175
C.C. Sentencia T-590/98, available at <www.corteconstitucional.gov.co/relatoria/1998/T-590-98.html>

39
to announce an open call for public notary nominations.176 This kind of judicial activism

David Landau and Julian Lopez177 argue is based on the overall conception of the

unconstitutional state of conditions doctrine which renders separation of powers in

Colombia the obligation to be flexible and ought to be subordinated to the more

important goal of constitutional enforcement.178 It has further been theorized and

empirically evaluated from their outcomes to be rights revolution 179 and the

corresponding juristocracy 180 which embodies the judges growing intervention in

fundamental political and social questions.

César Rodríguez-Garavito181 does an empirical study on these structural cases and its

impact thus developing the Dialogic activism. 182 He propounds for dialogic activism,

since court controlled factors due to the kind of orders issued and the court s

monitoring capability.183 He argues further that dialogic rulings set broad goals and

clear implementation paths through deadlines and progress reports and secondly, a

dialogic approach to Socio- economic rights cases encourages participatory follow-up

mechanisms such as public hearings which in the end result deepen democratic

deliberation and has a great impact on the court intervention.184

176
C.C., Sentencia SU-250/98 , available at <www.corteconstitucional.gov.co/relatoria/1998/SU250-98.html>
177
David Landau and Julián Daniel López-Murcia „Political Institutions and the Judicial Role: An application
in context, the Case of the Colombian Constitutional Court‟ (Instituciones Políticas y el papel de los jueces:
aproximaciónen contexto. el caso de la corte constitucional colombiana) (2009) Vniversitas. Bogotá
(Colombia) N° 119: 55-92,
178
David Landau and Julián Daniel López-Murcia( Supra n. 63)
179
Charles R. Epp, „The Rights Revolution: Laywers, Activists and Supreme Courts in Comparative
Perspective‟ (1998) 1-2
180
Ran Hirschi, „Towards Juristocracy: The Origins and Consequences of the New Constitutionalism‟ (2004)
defines Juristocracy to be expansive judicial power that resulted from constitutional reforms shifting power from
representative institutions to the judiciaries.
181
César Rodríguez-Garavito- Beyond the Courtroom Ibid n. 47
182
See César Rodríguez-Garavito Ibid n. 181 ; See also Rosalind Dixon- Creating Dialogue About
Socioeconomic Rights: Strong Ibid n. 145
183
César Rodríguez-Garavito Ibid n. 181
184
César Rodríguez-Garavito Ibid n. 181

40
The Colombian Dialogic model is different especially on Socio-economic rights is very

different from that of the South Africa or as that by Mark Tushnet185. Their strategy an

intense cooperation with the other branches especially the executive and what makes it

unique is that it is not intended to catalyze democratic process but to take whatever

action deemed necessary to solve the policy problem. It elucidates certain kind of

confidence to issue out precise directives or to revise the bill passed by parliament

especially where there are systemic challenges. An appraisal to this approach to

dialogue is that the court as adjudicators give room for a wide range of ideas and

options to be taken by the executive and further creates an incorporated and collective,

consultative forum from the political and private actors to achieve democracy and

development.

3.5 Conclusion.

The comparative study undertaken above give a direction on how the courts should

develop the dialogic approach to Judging, it brings to mind the challenges that the

Courts are likely to face and the need to incorporate these approaches as they attempt

to model and modify the Kenya s approach to adjudication to suit the dialogic approach.

Suffice to note each of the above legal systems have theorized and applied dialogic

approach differently based on the legal history, tradition and culture. It goes without

concluding that Kenya s legal system is unique and thereby our dialogic approach is

unique and we must develop it keeping in mind its unique but guided by a comparative

study.

185
Mark Tshunet- Weak Courts, Strong Rights Ibid 115

41
 CHAPTER FOUR

4.0 MODELLING THE KENYA‟S DIALOGIC APPROACH IN TRANSFORMATIVE

ADJUDICATION.

4.1 Introduction.

The courts in Kenya have made attempts to interpret the constitution Dialogically

rather than the traditional the monologist approach to judging. However, the study of

this concept is still nebulous and still faces a greater challenge in its practicableness in

developing democracies. From the previous chapter, it must be noted that each

jurisdiction has its own unique approach to dialogic model of adjudication. In

appreciating this fact, Kenya s dialogic approach shall be different from the foreign

jurisdictions since our legal history and culture is different from those of other

jurisdictions.

The researcher appreciates the fact that he is not the first to try and fashion the Dialogic

approach in adjudication. Orago Wasonga Nicholas186 and Miyawa O. Maxwel187 have

undertaken a theoretical study on this subject. The researcher therefore builds on their

arguments with the need to focus on the process to be undertaken by the court in

ensuring that dialogue is meaningfully achieved and further interrogate the obligation

required by the other parties and further the effectiveness and implication of dialogue

process in achieving the transformative project. The judiciary is thereby emphasized

that the dialogue theories ought not to empirically and normatively have a monopoly on

constitutional interpretation188 but against this the court as a tradition is expected to

conclusively interpret the constitution with finality. It is therefore that in order to

186
Nicholas Wasonga Orago- Poverty, Inequality and Socio-economic Rights Ibid n. 48
187
Miyawa O. Maxwell- Judicial Enforcement of Socio-Economic rights Ibid. 31 See also Miyawa O. Maxwel,
„Dialogic Landscape In Kenya: An Emerging Trend in Socio-Economic Rights Enforcement‟ Accessed from
https://osgoode.academia.edu/MiyawaMaxwel
188
Bateup Christine A. - The Dialogic Promise Ibid n. 1

42
achieve or create an effective dialogic environment, the court should go against legal

tradition for posterity.

Dialogue involves a process in which the court gives room for discursive and

conversational exchange with parties to a suit in a bid to formulate the most workable

and agreeable remedies to a particular case or solutions to a particular problem. 189 It is

this room that needs to be established to create an environment for dialogue and an

atmosphere for discourse, which reconciles the argument by Jurgen Habermas that

there ought to be fair procedures which he calls it an ideal speech situation which

ought to be free and uncoerced, further according to him it should be inclusive and open

and symmetrical that is each participant can initiate, continue, and be able to question

the discussion on the topic.190He therefore argues for the institutionalism through legal

and constitutional means of those legitimating rules.191 It is a systemic process that

need to be established by the court itself from the legitimating rules.

This chapter shall seek to narrowly analyze the process of undertaking dialogue by the

court. The researcher shall purposively interpret the provision of the constitution that

give room for dialogue by the court. Upon establishing the interpretive approach to

dialogic constitutionalism, the researcher finds that there are two main areas that are of

interest to the subject matter at hand. First is the Adjudication and Enforcement of

Socio-economic rights and secondly, the Judicial review and striking down of

189
Daniel M. Brinks and Varun Gauri, “A New Policy Landscape: Legalising Social and Economic Rights in
the Developing World” in Gauri, Varun and Brinks Daniel (eds) Courting Social Justice: Judicial Enforcement
of Social and Economic Rights in the Developing World [2008] (Cambridge: Cambridge University Press,
2008), 30
190
Jurgen Habermas, Moral Consciousness and Communicative Action, C. Lenhardt and S. Weber Nicholsen,
trans. (Cambridge: MIT Press, 1990),88-89, 197; and idem, Legitimation Crisis, Thomas McCarthy, trans.
(London: Heinemann, 1976), 107-109; and Seyla Benhabib, „Toward a Deliberative Model of Democratic
Legitimacy,‟ See also Ilan Kapoor, „Deliberative Democracy or Agonistic Pluralism? The Relevance of the
Habermas- Mouffe Debate for Third World Politics, (2002) Alternatives 27, 459-487
191
See Jurgen Harbermas, „Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy,‟(1998) William Rehg, trans. Cambridge MIT press,

43
legislations. Finally the researcher shall explore the future implications and challenges

likely to be faced in the process of dialogue and further assess if Dialogic

constitutionalism is a viable process.

4.2 Constitutional Framework on Dialogic Constitutionalism.

The constitution has made provisions that imply an environment to be undertaken by

the court, it must be understood that these provisions are broad and give a great

latitude to the courts to adjudicate in a manner that promotes dialogue. The first

provision is Article 23(3) which makes provision for the authority of the courts to

uphold and enforce the Bill of rights thus arguably justifying the idea of dialogue.

First, Article 23(3) has been variedly that it is broadly formulated to give room for the

wide scope for the remedies, by the use the word including it essentially means that

the list is not exhaustive and therefore that the courts can develop this remedies in

order to suit the situations brought before them as Miyawa Maxwel puts it that the

constitution implicitly contemplates other unspecified remedies for rights other than

those listed.192 Elsewhere, the court have interpreted the use of the word including to

mean that grounds listed not exhaustive 193 Thus the court may introduce new

remedies not listed.

Secondly, )n addition Article introduces the concept of appropriate relief through

the use of the phrase that the court may grant appropriate relief (emphasis my own).

It has been interpreted especially from other jurisdictions that the court must deploy

creativity and innovation to enforce the values and norms of the constitution.194 The

Constitutional Court in South Africa emphasizes that an appropriate remedy means an

192
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic Rights Ibid n. 31 page 111
193
See for example Erick Gitari v Non-Governmental Coordination Board & Another [2014] Eklr Petition No.
440 of 2013
194
Similar to that of South Africa Section 38, 172(1) (b)

44
effective remedy for without it being effective remedy for breach, the values underlying

and the rights entrenched in the Constitution properly be upheld or enhanced. 195 The

essence of an appropriate relief is that it is intended to protect and enforce the

constitution and that it is necessary the courts should even fashion new remedies or

modify the existing remedies to secure the protection and enforcement of the important

rights.196 The courts must forge new tools and shape innovative remedies which

Dikgang Moseneke emphasizes that creative jurisprudence of equality coupled with

substantive interpretation of the content of socio-economic rights should restore social

justice as a premier foundational value of our constitutional democracy. 197 Thus

Dialogic approach to adjudication encompasses an innovative and transformative

application of the remedies.

Further, Article 20(5) provides that in the enforcement of Socio-economic rights, that

the State has the sole responsibility to answer on questions relating to resources

dependent programs. This provision, is argued to be novel in the sense that it makes the

state accountable to the judiciary with regards to social welfare programs. 198 The state

is under an obligation to demonstrate that the resources are not available199 which

Miyawa Maxwel opines that this is an interactive phase in adjudication where the court

speaks to the political arm of government while reviewing legislation or decisions of

government to accomplish their constitutional obligation.200 The researcher agrees that

at the point when the State responds to the court on the availability of resources,

Dialogic adjudication take place.

195
Fose v Minister of Safety and Security [1997] (7) BCLR 851 (CC) para 69
196
Ibid para 19
197
See Dikgang Moseneke- Transformative Adjudication Ibid 23
198
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic Rights Ibid n. 31 page 113
199
Article 20(5) (a)
200
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic Rights Ibid n. 31page 113

45
Further, Under Article 20(5) (c) it provides that the court may not interfere with a

decision by a state organ concerning the allocation of available resources, solely on the

basis that it would have reached a different conclusion. This provision must be read

together with Article 21(2) which provides that the State shall take legislative, policy

and other measures, including the setting of standards, to achieve the progressive

realization. Therefore where the state alleges that there is inadequate resources to meet

the outlined welfare initiatives, it must explain such a deficiency to the court which the

court will evaluate using the standards enshrined Article 21(2).201 The court thus may

not invalidate the structural programs merely on the account that it would reach a

different conclusion.202 The provision thus seeks to ensure that the court does not

impose a remedial option but that the government to undertake a legitimate role in

remedy selection process and to explain that to the court in an engagement forum while

the court ensures that it meets the obligations.203

The researcher finds other provisions that give the court power and room to undertake

dialogue and further have the power to enjoin parties to the dialogue. The constitution

makes provision for the right to institute court proceedings,204 further makes provisions

on the doctrine of locus standi and public interest litigation.205 The court has the power

to interpret constitution206 and has supervisory jurisdiction over any person or

authority.207Thus the court ought to interpret the Bill of rights in a manner that

promotes the values and principles and in accordance with the spirit, purport and

201
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic rights Ibid n. 31 page 113
202
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic rights Ibid n. 31 page 113
203
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic rights Ibid n. 31 page 113
204
Article 22(1) as read together with Article 258
205
Article 22(2) and (3) See also the Mutunga rules[2010]
206
Article 165(3) d)
207
Article 165(6)

46
objects.208 Clear the constitution uphold a dialogic approach to adjudication rather than

monologic approach.

The researcher shall attention into specific areas where the court attempted to

undertake dialogue; these are Adjudication and Enforcement of Socio-Economic rights

and Judicial review and striking down of legislations.

4.3 Adjudication and Enforcement of Socio-Economic rights.

4.3.1 Dialogic Modalities According to Nicholas Orago and Miyawa O. Maxwel.

Socio-Economic rights are justiciable and can be enforced before a court of law.

Dialogue comes in during the adjudicative process and in the enforcement process since

Article 43 of the constitution requires that the socio-economic right be progressively

realized. Dialogic constitutionalism as argue by Nicholas Orago and Miyawa O. Maxwel

appears to be a dynamic and static process that keeps changing and therefore just like

the comparative analogy, modelling the Kenyan dialogic approach is imperatively

complex and lacks enough evidence to describe it as dialogue.

Nicholas Orago in his theoretical study of Dialogic constitutionalism study establishes

three levels of undertaking a proper Dialogue.209 The first level he argues occurs at the

political level that in the process of developing the legislative, policy and programmatic

framework for the implementation of the entrenched Socio-Economic rights, in this

level he calls it coordinate construction or popular constitutionalism which a

deliberative aspect of dialogue.210 The second level is during constitutional litigation in

the courts and the third level is during the fashioning of judicial remedies after the

208
Article 20(4)
209
Nicholas Orago - Poverty, Inequality and Socio-economic Rights Ibid n. 48
210
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 165

47
constitutional litigation.211 This research is limited to the second and third level of

Dialogue.

The Second and Third level of Dialogue is one that is facilitated by the court. The Second

level, Nicholas Orago argues as one that occurs during the litigation, in which he who

has the power to plead also has the power to interpret. 212 The Kenyan constitution

entitles a wide range of persons capable of institute petition through public interest

litigation and thus can participate and enhances the level of dialogue.213 In this level of

dialogue, its nature is tripartite which entails the parties and the participation of the

Executive (Attorney general), he acts as the defender and implementer of government

policy.214 He goes ahead to submit that the court, at this level, the court ought to adopt a

strong-rights approach which entails a principled, substantive and expansive

interpretation of the entrenched SERs215. It demarcates the content, scope, and extent of

the rights which includes the delineation of the minimum core content of the rights and

further undertakes the strict application of the limitation clause.216 In the litigation

stage the court shall adopt a two-stage approach that is parties to the case adduce

evidence and make an affirmative case of a violation of SER, the strategy applied here

ought to aim at the overall achievement of the transformative agenda that is social

justice.217 The second level, the political institutions will be required to adduce evidence

211
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 165
212
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 1 page 189; See also. A Sajo
„Constitutional adjudication in light of discourse theory‟ (1995-1996) 17 Cardozo Law Review 1193, at 1201;
213
See Article Article 22 and 23 which the court noted that “persons shall have free and unhindered access to
the courts for the enforcement of their fundamental rights and freedoms as read together with Article 258” Cited
in John Harun Mwau & 3 others v Attorney General & 2 others, High Court Petition No. 123 of 2011
214
Nicholas Orago - Poverty, Inequality and Socio-economic Rights Ibid n. 48 page 190; See also Article 156(4)
on the role of the Attorney General
215
See M Tushnet- Social welfare rights and the forms of judicial review Ibid 115
216
Nicholas Orago - Poverty, Inequality and Socio-economic Rights Ibid n. 48 page 192; See also Article 24 of
the Constitution which provides for the Limitation clause.
217
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 191; See also Sandra
Liebenberg, Socio-economic rights adjudication under a transformative constitution (2010) 37-38.

48
indicating that the limitation of the right as being reasonable and justifiable.218 The

court must retain a sufficient latitude in order to be able to undertake more drastic

constitutionally availed remedies such as structural interdicts.219

The third level, as per Nicholas Orago deals with the type of remedy the courts adopt

and the kind of monitoring mechanisms that the courts will establish to ensure the

implementation of the adopted remedies.220 It involves the court designing and

adopting moderate remedies which ought to be in line with the concept of separation

of powers. In doing so, the court acknowledges and defers the constitutional

responsibility and institutional competence of the political institutions in designing,

planning and implementation of SER policies.221 This level thus encompasses certain

issues that arose from Court of Appeal jurisprudence studied below.

In furtherance of this study, Miyawa O. Maxwel in defining procedural modalities for

Dialogical remedies, he develops three distinct stages that is the right declaration

stages, the remedy proposal stage and the monitoring or supervision stage.222 The first

stage, he argues, is where the court establishes whether any rights has been infringed

and the degree of infringement, if it finds a violation it makes a declaration. The second

stage, the court directs the government to initiate some action or commence a program,

under this, dialogic decisions should allow the implementation of the proffered

remedial choices to run for a defines periods of time. The final stage connotes the

monitoring process which allows a forum for all actors and parties involved to discuss,
218
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 191; See also KG Young „A
typology of economic and social rights adjudication: Exploring the catalytic function of judicial review‟ (2010)
8(3) International Journal of Constitutional Law 385, at 395
219
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 192
220
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 200
221
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 200; See also Tushnet-
Social Welfare right Supra 30 above 1910; Rodriquez- Garavito- Beyond the Court Room Ibid n. 47
222
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic rights Ibid n. 31, Developed from César
Rodríguez-Garavito- Beyond the Court Supra n. 36; Mark Tushnet- Social Welfare Rights Ibid 115; Mark
Tushnet- New Forms of Judicial Review Ibid 115

49
set deadlines, the alternative structural choices which have been proposed by the

government and adopted by the court.223 The court thus supervises its decisions and

may review its own decisions as it may deem necessary.224 Upon establishing the

perspectives and approach of the two leading scholars in Kenya on this subject, the

researcher turns his attention to the Jurisprudential analysis emanating from the Court

of Appeal with intent to build on and find solution to hurdles, challenges that face the

Kenya s Dialogic model.

4.3.2 Jurisprudential Analysis of Dialogic Approach in the Kenyan courts.

Hardly a year after the promulgation of the Constitution, a petition was filed concerning

the right to housing225 and property226 in the case of Mitu-Bell Welfare Society v Attorney

General & 2 others227. The petitioners were residents of Mitumba village which was

situated near Wilson airport. After a short notice of 7 days, the 2nd respondent

demolished their houses despite having a court preventing the same. The court upon

finding that the state had failed in its obligations as per Article 21(1) and that the rights

of the petitioner s rights had been violated and finding that there was no form of

participation and consultation.228 The court issued the following orders that the

respondents do provide by way of an affidavit within 60 days the current state policies

and programmes on the provisions of shelter and access to housing, that the

respondents do furnish copies of such policies and programmes to the petitions and

other relevant state agencies, further that respondent do engage and report back to the

223
Mark Tushnet- Social Welfare Rights Supra n. 115
224
Miyawa O. Maxwel – Judicial Enforcement of Socio- Economic rights Ibid n. 2 page 116
225
Article 43
226
Article 40
227
Petition No. 164 of 2011[2013] Eklr
228
MituBell welfare society case Para 73

50
court on the progress within 90 days.229 The court in this matter applied the theoretical

levels propounded by both Miyawa Maxwel and Nicholas Orago.

However, the respondent did not comply with the court order but opted for an appeal,

In Kenya Airports Authority v Mitu- Bell Welfare Society & 2 others,230 which the

appellants challenged the scope and power of the lower High court to grant appropriate

relief in accordance with Article 23 of the Constitution. The appellate court raised

several issues that highlight the hurdles to be faced in the process of dialogue. The upon

its analysis held that

…Article of the Constitution that permits the (igh court to grant an appropriate relief

should not be construed to be provision that permits the high court to borrow legislations from

other countries and through judicial interpretation embed them into the laws of Kenya. Article

23(3) is not a legislative instrument for the courts that it permits the High court to be innovative

and creative in crafting appropriate relief on a case by case basis. It is our considered view that

under the political question doctrine, a court has no jurisdiction to make orders relating to policy

formulation or give guidelines on who should participate in the formulation of government

policy. 231

It must be noted that this ruling has been interpreted to have watered down the

progressive realization of the enforcement tools of Socio-economic rights and that the

court was not transformative but rather formalistic and paid more attention to

technicalities. Further, it must be appreciated that Dialogic constitutionalism is dynamic

and not static, it is theorized to keep on changing rather than remain constant. The

appellate stands as the precedent over the lower courts including the holding in the

High court.

229
Mitu-Bell welfare society case Para 79
230
Civil Appeal No. 218 of 2014[2016] Eklr
231
Kenya Airports Authority case. Para 112

51
Following the above, several questions arise. First, whether the court was justified to

hold that the decision in the High court was final and if so, how best can the court

ensure that we achieve the dialogic agenda if the judgment is deemed final? Secondly,

how can the court acquire jurisdiction upon granting a structural interdict? And what

ought to be the nature of orders granted by the court in order to facilitate dialogue?

Thirdly, should the court enjoin another party to the petition, if not, under what

processes can another third party be enjoined into the process of supervision and

reporting back? Finally, what ought to be the most appropriate process to ensure

supervision and reporting back to court in Kenya. I shall seek to respond to this issues

guided by the analysis in the previous chapters.

4.3.2.1 Question of Finality of Decision

This question centers around the high court judgment decision in Mitu-Bell Welfare

Society case232 which the appellate court interrogated whether that judgment was final

thus functus officio. The Court of appeal interrogated on what is a judgment and

whether a judgment can be interim or must be final and dispositive of the issues and

dispute between the parties. It inquired on whether a court in the name pf granting

appropriate remedies or relief under the provisions of Article 23(3) of the Constitution

deliver a partial judgement and reserve powers to receive additional pleadings, reports

or affidavits and thereby make further orders. 233 The appellate court ruled to the

negative on this question by adopting to the doctrine of functus officio, that once a court

has passed a judgment after a lawful hearing, it cannot reopen the case and thus the law

ensures the principle of finality.234 Thus the court once it has granted its decision it

232
Mitu-Bell Welfare society case above
233
Kenya Airways Authority case para 67
234
Kenya Airways Authority case para 69

52
terminates its own jurisdiction. )t thus held that the concept of partial judgment or

interim judgment after hearing of the parties is unknown to Kenyan law… 235

The researcher disagrees with the Court of appeal on the issue of finality of decision,

since the theory of Dialogue is based on the notion that the court cannot have a final say

in the constitutional interpretation. The court ought to allow room upon rendering its

decision for a new perspective in the process of monitoring a supervision. In Doucet-

Boudreau v Nova Scotia236, )ocabucci J. noted that Remedies may require novel and

creative features. Tradition and history cannot be barriers to what reasoned and

compelling notions of appropriate and just remedies demand. In short, judicial

approach must remain flexible and responsive to needs of a given case. Among the

traditions that need to be overlooks in order to appreciate the novelty of dialogue is

doctrine of functus officio.

The finality of decision will cripple the agenda of supervision and reporting back in a

structural interdict. Therefore as argued by Tushnet, on the court applying a strong-

rights approach, I find that the courts ought to come with ways to ensure that theirs are

not rendered final and further come up ways to ensure that the court is capable of

reviewing its own decision. This move me to the next issue.

4.3.2.2 Retention of Jurisdiction.

The court has to device a way of ensuring that it retains its jurisdiction in order to be

capable of following up with its decisions rather than rendering them finally and thus

ineffective. It is a fact the jurisdiction is acquired by law and that the courts get their

power from the law. However, as noted by the court of appeal, there is no law that

235
Kenya Airways Authority case para 71
236
[2003] SCR 3

53
provides that the court may have an interim judgment. I find that there are two possible

ways of retaining jurisdiction, but both of them are arguable.

a) Express retention upon rendering the judgment.

Under this, borrowing from the Columbian jurisdiction, that what Cesar Garavito calls it

monitoring237, after issuing the final decision, the court can say that this is not the final

decision; I will retain my jurisdiction and continue issuing decisions to implement my

initial orders.238 These elements connotes a flexible interpretation of the regulations

and further, is dependent on the institutional framework existing.

The issue that may arise if a court expressly retains jurisdiction for the purposes of

monitoring is can the court deny or limit a party from appealing to the higher or

appellate court. I find it that a court cannot deny a party from appealing further to a

higher court, further as a researcher, I advocate the courts must justify in its ruling that

the issues before it to be so polycentric and complex to equal the status of the

Columbia s Unconstitutional state of affairs in order to enable the appellate courts to

agree with the trial court and thus enable it to proceed with the supervision and thus

retain its jurisdiction.

b) Issuance of Preliminary Orders.

Under this aspect, it connotes an innovative way of the courts not issuing a finally

judgment but a preliminary ruling to the extent that the procedure will be that the

parties undertake their obligations as the case proceeds where the next mention date

will be the reporting sessions until a final judgment is granted. The Indian Supreme

237
Cesar Rodriquez Garavito- Beyond the Courtroom Ibid n. 47
238
Manuel José Cepeda-Espinoza- Transcript: Social and Economic Rights Ibid n. 169

54
Court in the People’s Union for Civil Liberties v Union of India239 which concerned right to

food, the court issued extensive preliminary orders requiring the government to

introduce midday meals in all government assisted primary schools; provides food

security benefits through a card system among other orders.240 Thus in order to ensure

compliance appointed two commissions to ensure implementation.

The Preliminary orders ought to be made where it is urgent and the effect of the

violation of rights is immense and cannot wait to be progressively realized as it

endangers life. Such orders should be made in situations that require radical and

immediate solutions.

4.3.2.3 Supervision and Reporting Process.

Upon the court retaining its jurisdiction and granting an order for the parties to report

back to it on the policies and programs planned by the state to cure the state of violation

enumerated by the court during the ruling. Supervision is one of the elements of

structural interdicts, Iain Currie and Johan de Waal241 opine that the government is

ordered to prepare and submit a comprehensive report, the submitted plan is expected

to be tied to a period within which it is to be implemented. After the report is presented,

the court evaluates whether the proposed plan in fact remedies the constitutional

infringement and whether it brings the government into compliance with its

constitutional obligation.242 The court of Appeal in the above matter on this issue held

that

239
Writ Petition No. 196 of 2001 Available at http://www.righttofoodindia.org/case/case.html> Accessed on 01st
September 2017
240
PUCL case Supra 239.
241
Iain Currie & Johan de Waal- Remedies Ibid 147
242
Iain Currie & Johan de Waal- Remedies Ibid 147

55
 …what would the trial court do with such policies if tabled would the court interfere or evaluate

the soundness of the policy. A court should not act in vain and issue orders and directions that it

cannot implement. It held the opinion that ….it is advisable for the courts to practice self-restraint

and discipline in adjudicating government or executive policy issues…

The court on this issue interpreted it to be an interference to the political arm of

government rather than as put forth by Frank Michelman, to be an invitation of the law

back to politics, through dialogue. The intention of the court as alluded above is to

ensure inclusivity in the process of implementation to avoid infringement of state

powers. In the process of supervision, there two main issues that must be responded to

by the court, first is what mode of reporting back or supervision will be applicable and

secondly, the parties to be enjoined in the process.

a) Mode of Supervision.

The mode of supervision depends on several factors mainly, the level of violation and

the court s capacity to undertake the process of supervision, and finally, the proposition

made by the state. The court may have to choose from these two ways:

i) Direct supervision from the court.

The Court in this aspect undertakes that it shall be reported back to within the

deadlines and time frames set out by the court itself. In this approach, the court is

actively involved in the process that is occasional live public hearing are held where the

government is called upon to report on the progress made and the parties and the civil

society may cross- examine on the evidence brought out by the State. The Colombian

Constitutional court has time and again undertake direct supervision, for example in T-

56
024 case243 which concerned IDPs where the Director in charge of IDPs was put to stand

on the progress of the implementation of the court order.244

The direct supervision has its disadvantage in Kenya mainly being that there is a high

rate of case backlog thereby it could be impossible to hold occasional public hearings

sessions based on this reason.

ii) Appointment of a commission.

This connotes the divesting of jurisdiction from the court to an independent body or a

body that represents the interests of the petitioners and other interested groups. The

main role of the commission is to carry out interviews, reports and make observation on

the process of implementation. In Columbia, the Commission Monitoring Public Policy

on Forced Displacement which was a coalition of NGOs was assigned to monitor the

implementation of T-025 case.245 Also the South African has obligated the South Africa

Human Rights commission( SAHRC) which is mandated under their constitution to

promote respect for (uman rights and the the protection, development and attainment

of human rights, as well as with monitoring and assessing the observance of Human

rights in the Republic.246 Mitra Ebadolahi makes a case for the use of SAHRC in the

process of monitoring and follow up of implementing the rights.247

In the Kenyan context, Nicholas Orago advocates for the use Kenya Human Rights and

Equality Commission (KHREC) which under the constitution has the function and power

to conduct investigations248 and has power to issue summons to a witness for the

243
Corte Constitucional [C.C.] [Constitutional Court], enero 22, 2004, Sentencia T-025/04 Ibid n. 170
244
César Rodríguez-Garavito- Beyond the Courtroom Ibid 47
245
Cesar Garavito Rodriguez- Beyond the Courtroom Ibid n. 47
246
Provided under Section 184(1) of The South African Constitution [1996] Chapter 9
247
Mitra Ebadolahi- Notes: Using Structural Interdicts Ibid n. 146
248
Article 252(1) of the Constitution of Kenya

57
purposes of investigation.249 Therefore it is best suited to carry out the responsibility of

follow up on behalf of the court.

It must be noted that there shall be financial and budgetary implications on the process

of monitoring and supervision. Nicholas Orago argues that the substantive content of

the policy, including fiscal and budgetary imperatives are not contained in the

judgment, but are discussed and designed in an inclusive and participatory deliberative

remedial commission and also during monitoring process.250 Thus it the question of

finances should be in consultation with the parties and State.

In concluding this part, I opine that the court may apply both methods of supervision

that is through the live court and through supervisory commission with intent to ensure

effective dialogue and that would spur rapid implementation.

b) Enjoining of Parties.

In this aspect, the Appellate court criticized that by the High court seeking to enjoin

other third parties like the Pamoja trust, who are not party to the suit and are un-

pleaded issues would amount to throwing back the parties into the arena of litigation

and contesting issues over which they came for determination by the trial court. 251 I

find this to be an application of formalistic approach to judging rather than the

transformative approach to dialogue. Manuel Jose contends that enjoining of parties to

this process in dialogue is empowered decisional participation which he justifies that

the judicial intervention is a way to mobilize the political process but to mobilize it in a

way in which participation is not only linked to the very specific party s interest in the

case but that promote a broader participation in the decision making that will lead to

249
Article 253(3) of the Constitution of Kenya.
250
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 205
251
Kenya Airways Authority Case para 94

58
the fulfillment of the Orders of the court. 252 It is thus a decisional participation.253 The

approach of enjoining the parties thus is not public participation but a decisional

participation from the Colombian perspective.

4.3.2.4 The Nature of Orders and Capability of Reviewing.

Under this aspect, it connotes where a court makes the orders asking the State, upon the

court declaring the rights, to report back on its policy and program plans it intends to

undertake to fix the violation of rights state. It is submitted that the such orders must be

broad in order to allow a great latitude form the State to be able to choose among

several options available but also the court must retain to itself sufficient latitude to

enable it undertake a more drastic constitutional remedy.254 Further, it ought to defer

the decisional aspect to the State but care must be taken as noted by Mclaughin J, that

deference should not be carried to the point of relieving the government of the burden

which the charter places upon it of demonstrating that the limits it has guaranteed

rights are reasonable and justifiable.255

This limitation on the nature of rights is pegged on the argument by Tushnet that

Courts should not enforce strong social welfare rights with weak remedies because

those remedies may well become strong ones, which in turn will lead courts to

transform to strong social welfare rights into weak ones. 256 The court should thus

should reserve power to itself in order to be able to make new decision in light of the

progress and setbacks in the process of the implementation of the original judgment

252
Manuel José Cepeda-Espinoza-Transcript: Social and Economic Rights Ibid 169
253
Manuel José Cepeda-Espinoza- Transcript: Social and Economic Rights Ibid 169
254
C. Mbazira, Litigating socio-economic rights in South Africa (2009) chapter six.
255
RJR MacDonald v Canada [1995] 3 SCR 199 para. 136; Provisions cited are similar to Article 24, 21(1) of
the Constitution of Kenya
256
Mark Tushnet- Social Welfare Rights Ibid 115

59
and to encourage discussion among actors.257 Thus strengthening the adjudicative

dialogue.

)n granting the orders therefore it ought to be what is called targeted transformative

that is that it should be orders that target with precision towards the regulatory

bottlenecks.258 In this regard the court makes at first depending on the rights targeted,

broad and not targeted to fix key specific aspects since the evidence before the court at

first instance is too general, then afterwards during the supervision, the court will be

able to review its decision to a very concrete and specific follow up and thus render a

targeted transformative orders after the initial judgment and once there is enough and

weighty evidence.259 While in other situations such as the right to health, the court in

making targeted orders towards main problems in the healthcare system ought to be

careful and be able to sustain the follow up.260 The orders therefore should portray

prudent activism that is that the courts don t try to fix the problem but leaves the

fixing of the problem to the competent agencies.261 Finally, the time frames also

established by the court ought to be realistic and achievable.

4.3.4 Judicial review and Striking Down of Legislations.

This is the second approach by the courts to dialogue. It is derived from the Hogg and

Bushell case for Dialogue when the court strikes down legislation passed by parliament

when in response to this the legislature undertakes to remove, amend or change that

257
Cesar Rodriguez- Beyond Court Room Ibid n.47
258
Manuel José Cepeda-Espinoza-Transcript: Social and Economic Rights Ibid 169
259
Manuel José Cepeda-Espinoza-Transcript: Social and Economic Rights Ibid 169; See also T- 025 – IDPs
case where the court made at first broad orders then later narrowed to specifics Ibid 170
260
Manuel José Cepeda-Espinoza-Transcript: Social and Economic Rights Ibid 169; See also T-O24 on the right
to health court made targeted specific areas. See also Cesar Garavito- Beyond the Courtroom Ibid n. 47 who
compares both cases Ibid n.170
261
Manuel José Cepeda-Espinoza-Transcript: Social and Economic Rights Ibid 169

60
legislation then it amounts to dialogue.262 In this part the researcher shall be

interrogating whether the Kenya s striking down of legislation amounts to dialogue.

In Coalition for Reform and Democracy(CORD)& 2 others v Republic of Kenya & 10

others263 was a suit brought before court seeking a declaration that the Security

Amendment Bill 2014 is constitutional both substantively and procedurally

unconstitutional. The court used the severance remedy keeping in mind the Limitation

of rights under Article 24,264 and went further ahead to sever each contended provision

of the statute, weighing that provision against the constitution especially the bill of

rights while finding whether that provision is justifiable to be limited under Article

24.265It thereby severed several provisions of the statute and in suspending those

provision266 and thus innovatively warned the bodies such as the media that are

exploiting its own privileges and rights.267 In response to this the Senate came up with

Security Amendment Bill 2015 which intended to cure the issues raised by the court.

Further, The Institute of Social Accountability & Another v The National Assembly &

others( hereinafter The CDF Act case) 268 which concerned the constitutionality of the

Constituency Development Fund Act (CDF Act), the court applied severance and found

that … Sections and of the CDF Act introduce a conflict of roles and in this way

threaten to violate the division of functions between the national and county

governments…”269 It went further to find that Section 24 of the said Act violates the

262
Peter W Hogg and Allison A. Bushell- The Charter Dialogue between Courts and Legislatures Ibid n. 28
263
Petition No. 12 of 2015[2015] eKLR
264
CORD case Para 235- 273 in the supra n. 263
265
Refer to CORD case Para 273-281(Article 34), Para 282-308(Article 31), Para 309-330(Article 49),Para
331-349(Article 50(2)j) ), Para 350-354(Article 49(1) h)) Ibid n. 263.
266
CORD case Para 463 ibid n. 263
267
CORD case Para 457- 459 ibid n. 263
268
Petition No. 71 of 2013[2015] Eklr hereinafter The CDF Act case
269
The CDF Act case Para 110 supra n. 268

61
principle of separation of powers.270 The court went on explaining what the use of

severance means and said thus …the court must unbundle the specific provisions of the

proposed legislation to see if and to what extent they satisfy the criteria set out under

Article 110(1) of the constitution… .271 The parliament in response to this sort to amend

the constitution to introduce the CDF fund as a one of the funds in the constitution.

The Kenyan courts seem to have favored suspension of declaration of invalidity for a

period of time and have avoided to strike down a legislation since as the court noted

that it is a very serious legal and constitutional step to suspend the operation of

statutes and statutory provisions and therefore the courts must wade with oare,

prudence and judicious wisdom. 272 Therefore the courts have been very conscious

alive of the doctrine of separation of powers and the likelihood of a legislative gap

incase its strikes down a legislation.

On the question as to whether suspension of declaration of invalidity amounts to an

effective dialogue in the Kenyan context, the response is to the affirmative. Guided the

Canadian approach to dialogue in this context, The Canadian Supreme court in

Schachter v Canada273 in setting the jurisprudence for suspension of declaration of

invalidity rather than striking it down, it created three conditions that is where the

immediate striking down of legislation would pose a danger to the public, or would

threaten the rule of law or would result in the deprivation of benefits from deserving

persons 274 Despite this, it is noted that the Canadian courts have largely ignored in the

subsequent cases. Sujit Choudhry and Kent Roach hold that the suspended declaration

270
The CDF Act case Para 112 Ibid n. 268
271
The CDF Act case Para 138 Ibid n. 268
272
CORD case para 122 Ibid n. 268
273
[1992[ 2 S.C.R 679
274
Schachter Case Ibid 273 at 719

62
of invalidity can be viewed as a form of legislative remand, whereby unconstitutional

legislation is sent back for reconsideration in light of the court s judgment. 275

If after the period of suspension is over without the legislation making the changes then

the declaration of invalidity take effect. It essentially means that a suspension period is

some sort of invitation of the legislature to dialogue. McFarlene puts it that where there

is no response it does not amount to dialogue. But if there is a response as to the court

orders it amount to according to McFarlene to straight compliance but where there is

some sort of new law or amendment that differs from the court ruling then it shall

amount to be termed as dialogue.276

The Kenya s approach therefore to suspension before a declaration of invalidity,

according to the researcher amounts to be described as dialogue. But I find that more

empirical evidence is required to gain a normative value of being Dialogic

constitutionalism.

4.4 Future of Dialogic Constitutionalism from the Kenyan Courts.

As a researcher, I remain optimistic that the courts especially the Higher courts in the

land (Supreme Court and Court of Appeal) will adopt dialogic judicialism during

adjudication. The future of Dialogic constitutionalism is embedded in the

Transformative agenda of the Kenyan constitution. In order for Dialogue to thrive in

Kenya, the courts should shun from continuing to embrace legal culture that dictate

formalistic approach to adjudication but rather embrace Transformative adjudication.

The court ought to further strive to ensure inclusivity in interpreting the constitution.

275
Sujit Choudhry & Kent Roach, “Putting the Past Behind Us?” (2003) 21 Supreme Court Law Review (2d)
205 at 233
276
Emmett Macfarlane- Dialogue or compliance? Ibid n. 144

63
The Effect of SERs is immense and has down in the history of Columbia in the Judgment

T-025 that impacted greatly in the spheres of social, economic and political rights. Cesar

Garavito does an empirical study on the impact of a dialogical decision. First, it had an

unlocking effect which shook up state bureaucracies in the targeted sector. 277Secondly,

It had a coordination effect that dealt with the structural policy failures.278Thirdly, it had

policy effect which led to the establishment of implementation mechanism, funds

allocations and monitoring of the program279. Fourthly, it had participatory effect that

opened up judicial proceedings and policy making to a broad range of governmental and

non-governmental actors.280 Finally, it had sectoral and reframing effect in the targeted

area. On the court, the result was deepening democratic legitimacy on constitutional

regimes committed to decent standards of economic wellbeing.281

4.5 Conclusion.

This chapter has developed and filled the loophole that the Court of Appeal highlighted

in appeal case of Mitu-Bell. The scholars on this subject had undertaken on the

theoretical establishment of Dialogic constitutionalism. The chapter establishes that

there are two main types of dialogic models that I have attempted to discuss, that is

enforcement of Socio-economic rights and the suspension of a declaration. The

researcher concludes that dialogue is possible with regards to enforcing SERs if the

courts act innovatively while by post-liberalists rather than formalistic in their

approach to judging. Further, the suspension of a declaration of invalidity is a model of

dialogue since it invites the legislature to dialogue through legislature sequels.

277
Cesar Rodriguez- Beyond Court room Ibid n. 47 at 1683
278
Cesar Rodriguez- Beyond Court room Ibid n. 47 at 1684
279
Cesar Rodriguez- Beyond Court room Ibid n. 47 at 1684
280
Cesar Rodriguez- Beyond Court room Ibid n. 47 at 1685
281
Rosalind Dixon- Creating Dialogue About Socioeconomic Rights Ibid 145

64
Therefore, dialogue is well-modelled in the Kenya s adjudication system, it only a matter

of implementing.

The next just concludes and recommends guided by this chapter how to better the

Dialogic model in Kenya s Transformative adjudication.

65
 CHAPTER FIVE

5.0 CONCLUSION AND RECOMMENDATION.

This chapter seeks to conclude the argument put forth in the study of Dialogic

constitutionalism in the analysis of transformative adjudication from the Kenyan courts.

It follows that it seeks to assess whether the study has achieved the objectives set out at

the beginning. It thus makes recommendation on the specific aspects of Dialogic

judicialism on the part of the court, the litigants, the civil rights groups and the State

itself on their obligations towards ensuring that dialogue occurs.

5.1 Conclusion.

This study had set out objectives in the form of questions as to whether the Kenyan

legal framework has appreciated the notion of dialogue by the court and how the courts

have been innovative and creative in enforcing socio- economic rights. Further to assess

whether dialogue is the best model to deal with the challenges of the doctrine of

separation of powers and counter-majoritarian difficulty. Finally, this study sort to critic

on how practicable the theory of dialogue is in Judicial review and enforcement of

Socio-economic rights in Kenya. The first chapter theorizes dialogue as a concept which

scholars have endeavored to conceptualize from a conversational aspect in literary art.

The study gives a legal backing through marrying the theory of dialogue with the word

constitutionalism which implies a legal justification. )t finds justification in the Mitu-

Bell case and infamous CDF Act case.

The second chapter conceptualized the concept of transformative adjudication with the

intention finding the place of dialogue in the architect of adjudication. The researcher

undertakes a process of theorizing transformative constitutionalism led by Karle Klare

and correlating it with the concept of adjudication as propounded by Owen Fiss and

66
Abram Chayes. This chapter addresses the concerns on counter-majoritarian difficulty

and Separation of powers, thus making a case for dialogue as probable solution to the

above concerns. The researcher concludes that in deed dialogue has a place in

adjudication especially in cases where there are polycentric concerns or where

structural reforms is inevitable.

The Third chapter studied comparative analogy from other jurisdiction on their models

of dialogue. The Canadian model of dialogue espoused by Hogg and Bushell is derives

from where the courts strike down a legislation, in response the legislature either

amends or changes, that amounts to dialogue. The South African model encompasses

the use of court orders mainly through structural interdicts and meaningful

engagement, Structural interdict as evident in Grootboom case while the meaningful

engagement in Olivia road case, both espouse aspects of the theory of dialogue attached

to the court. Further, Columbian jurisdiction models its dialogic approach through

intense structural interdicts as evident in T-025 and T-024 case where the Columbian

Constitutional Court(CCC) supervises and follows up on the government to comply with

its orders through public hearing sessions and establishing of supervision commissions.

It concludes that each country has unique model of dialogue depending on the political,

historical, institutional and social structures.

The previous chapter has delved into trying to model the Kenya s approach to dialogue

from the courts. It builds the argument from the theoretical arguments by Nicholas

Orago and Miyawa O. Maxwel who undertook an empirical study on this subject matter

before the conclusion of Mitubell welfare case. The parties preferred an appeal to the

Court of Appeal CA which raised certain issues from the (igh court s ruling that in this

research forms the integral impact on dialogue processes. The researcher devices ways

67
to deal with the interpretive approach taken by the Court of Appeal with intent to make

dialogue a success. Further, the chapter responds to the affirmative that suspension of

declaration of invalidity of a legislation guided by the Canadian theory can be described

as dialogue.

In assessing on whether the study has achieved the objectives set out above, it is the

finding of the researcher that Kenya s legal framework indeed appreciates the concept

of dialogue and that its in the process of taking shape in the courts approach to this

theory. Courts have been innovative and creative but more needs to be done which

require an activist and transformative approach to judging. In concluding, it is the

finding that dialogue is practicable but is dynamic and takes different shapes such that

certain legal discourses and processes may not be deemed dialogue but has been

described as such. It is this dynamic nature that obliges the courts to maneuver through

the technical rules to achieve dialogic constitutionalism.

5.2 Recommendations.

The recommendation targets specific areas in the stages of dialogue as discussed in the

previous chapter. Each institution or party to dialogic judicialism contribute uniquely

towards dialogic constitutionalism. In enumerating the recommendations, the

researcher shall recommend which in essence are the obligations arising in order to

make dialogue a success. These are: the litigants, the court, the state and the civil rights

groups.

5.2.1 The Litigants.

These are the parties to a petition that may result in the beginning of a dialogue process

mostly in SERs matter where the court may order structural interdicts. The parties

ought to adopt a structural litigation strategy that is one that most concerns the people

68
which is within the Public interest litigation(PIL) strategies.282 In this sense, the court is

brought to attention of the plight of victims of violation of rights.

The litigants ought to guide the court towards appreciating the polycentric concerns

arising from the petition which shall attract the attention that this is not a matter to be

dealt by the court but it should incorporate other levels of government in the decision

making. Further, the parties ought to adduce cogent evidence, evidence form a wide

range of persons affected by the violation of that socio-economic right with intent to

bring out the need for reform on the right. Such evidence ought to represent the state of

affairs if possible of the whole country, and must reflect on the legal culture and history

in order to institute sectoral transformation.

Where a litigant is not satisfied by ruling of the High court or any other court, the party

should go further and seek opinion from a higher court probably the Supreme Court.

Comparative jurisprudence has it that effective dialogue occurs at the supreme court

and seen through by the lower courts. Finally, the litigants during the supervision and

reporting sessions ought to participate actively in the process, guided by to main issue,

first is to guide the court in balancing the interests of the individual vis a vis those of the

affected society and secondly, keep the court in track with the objectives and intent of

the petition in order to avoid losing sight of the bigger picture.

5.2.2 The Executive and Legislature.

This is the political arm of government that is mostly represented by the Attorney

General (A.G). The Attorney General, in order to make dialogue a success, ought to

comply with the court order to file affidavits within a certain time frame and show what

282
Nicholas Orago - Poverty, Inequality and Socio-economic rights Ibid n. 48 page 197

69
policy and budgetary allocation the government is undertaking to deal with violation of

that particular right.

In compliance, the government should come with cogent plans that promote social

justice and equality, not one that benefits a select few. In this regard, the A. G must

appreciate that the follow up and supervision is not an interference into the other level

of government but an invitation into the process of decision-making process. That the

court is only to assess and determine the compliance process.

The Government in the process of dialogue ought to accept the inclusion of civil society

and NGOs into the decision- making process rather than limit them from holding the

government accountable. It ought to allow inclusivity and equity in the process of

decision-making.

5.2.3 Civil society and NGO groups.

These are the groups that are enjoined into the process of supervision and reporting

back sessions. They ought to basically help the court collect evidence and come up with

reports on what the government is doing and the impact of the process on the victims

and thus reduce the work of the court in supervision.

These groups therefore, ought to guide the court to make specific and targeted orders to

certain areas that have not been dealt with. That is it guides the court from making

blanket orders to making specific orders.

5.2.4 The Court

The court is the main body in the process of Dialogue. It begins and ends the process of

dialogue and sees to it that it is done. In the process of litigation, the court ought to

70
weigh the litigation strategy to the effect that it ensures that the individual rights and

those of group rights thus protecting each of those rights.

The ought to in the ruling stage, make preliminary orders where necessary if the matter

at hand is urgent then such response ought to be made. The nature of the subsequent

orders ought to be broad but precise to avoid any confusion or misinterpretation, the

court should set reasonable time lines that will enable the parties to respond. The

determination and orders therefore ought to give a latitude to the government and a

wide range of options probable to be taken by it in order to create a good environment

for dialogue.

In granting a structural interdict, the court ought to carefully weigh the rights at issue

against the limitations therefore. Thus in giving the orders should be aware of the

dangers that may arise and pose a challenge to the court. In Modder East Squatters &

Another v President of the Republic of South Africa,283 the court of Appeal noted the

challenges of structural interdicts, it put thus

Structural interdicts have a tendency to blur the distinction between the executive and the

judiciary and impact on the separation of powers. They tend to deal with policy matters and not

with the enforcement of particular rights. Another aspect to take into account is the comity

between the different arms of the State.284 Then there is the problem of sensible enforcement: the

state must be able to comply with the order within the limits of its capabilities, financial or

otherwise285. Policies also change, as do requirements, and all this impacts on enforcement. It

further noted that the time limits appear to be unrealistic and there is no indication of what is

expected of the state apart from the generalized obligation to comply with constitutional duties

283
[2004] Supreme Court of Appeal Case Nos 187/03 and 213/03
284
See also President of the Republic of South Africa and others v South African Rugby Football Union and
others
2000 (1) SA 1 (CC) para 234
285
Minister of Health and others v Treatment Action Campaign (No 2) and others 2002 (5) SA 721 (CC) para
37-38.

71
 in some unspecified way. The order justifies queue-jumping in prioritization which is

inappropriate… 286

Despite the above challenges raised, the court should not be cowed into not granting

structural interdicts but should find ways to maneuver with the malleable nature of

dialogue and within the technicalities into achieving transformative constitutionalism.

Thus, the court should be activist and transformative to see to it that Dialogue is done.

The court should further be able to review its own orders in the manner where they

move from broad orders to narrow and specific order. In this regard, the court ought to

mark the end of the structural interdict, that is it ought to know when the objectives it

set have been achieved and thus end the process. The Constitutional Conversation

Continues…

286
Supra n. 98 para 39-40

72
 BIBLIOGRAPHY

Books

Alexander M. Bickel, “The least dangerous Branch” 16 (Vail-Ballou Press, Inc. 2nd

ed.(1986)

Bakhtin M.M “The Dialogic Imagination: Four Essays”(1981) Edited by Michael Holquist

and Translated by Coryl Emerson University Of Texas press Austin and London

Dworkin Ronald, „No Right Answe‟r, In Law, Morality and Society (1977) Hacker & J. Raz

(eds.)

Habermas, “Moral Consciousness and Communicative Action,” C. Lenhardt and S. Weber

Nicholsen, trans. (Cambridge: MIT Press, 1990),88-89, 197

Ian Currie and Johann de Waal(Eds.), Remedies, in The Bill of Rights Handbook (2005) 5th

Edition

Jürgen Habermas “Between Facts and Norms: Contributions to a discourse Theory of Law

and Democracy; Trans. By William Rehg (1996) The MIT Press, Cambridge Massachusetts

- , “Structural Transformation of the Public Sphere”, Thomas Burger, trans.

(Cambridge: MIT Press, 1989); and Craig Calhoun, ed. Habermas and the Public

Sphere (Cambridge: MIT Press, 1992.

- „Between Facts and Norms: Contributions to a Discourse Theory of Law and

Democracy,‟(1998) William Rehg, trans. Cambridge MIT press,

Mika Lahteenmaki and Hannele Dufya (Eds.) Dialogues on Bakhtin: Interdisciplinary

Readings, “ From „Psycholinguistic‟ to a dialogical psychology of Language aspects of the

73
Inner discourse” (1998) University of Jyvaskyla Centre for Applied studies ISBN 951-39-

2408-4

Montesquieu „The Spirit of Laws Book XI‟ (1873) 174

Owen Fiss, “The Death of Law”,(1986) 72 Cornell Law review 1,2, 9-10

Stu Woolman and Michael Bishop (eds), Constitutional Conversations (2008) Pretoria

University Law Press.

Journals.

AJ Van der Walt, “Legal History, Legal culture and Transformation in a Constitutional

Democracy”(2005) Stellenbosch University

Alexander Bickel, „The Supreme Court, 1960: The Passive Virtues,‟ (1982) 75 Harvard Law

Review 40, 47-51

Bassok, Or, and Yoav Dotan “Solving the Counter-majoritarian Difficulty?” (2013)

International Journal of Constitutional Law 11 (1): 13–33.

Caesar Rodriguez- Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on

Socio-Economic Rights in Latin America. (2011) Texas Law Review Vol 89:1669

Catherine Albertyn and Dennis Davis „Legal Realism, Transformation and the Legacy of

Dugard‟ (2010) 26 South African Journal on Human Rights

CR. Sunstien, “Interest groups in American Public Law,” (1985) Stanford Law Review 38: 59

D Davis „Soco-economic rights in South Africa: The record of the Constitutional Court after

10 years‟(2004) 5(5) Economic and Social Rights Review 3 7.

74
David Landau, “A Dynamic Theory of Judicial Role‟ (2014) Boston College Law Review

November 2014

Dennis M. Davis & Karl Klare, “Transformative Constitutionalism and the Customary Law”

(2010) 26 South African Journal on Human Rights.

Dikgang Moseneke, “The Fourth Bram Fischer Memorial lecture on Transformative

Adjudication”(2002) Delivered at the Nelson Mandela Civic Theatre, Johannesburg, 25 April

2002.

Frank L. Michelman, “Law's Republic,” (1988) 97 Yale Law Journal. 1493, 1499-1503

- „Bringing the Law to Life: A Plea for Disenchantment” (1989) Cornell Law Review

Vol. 74 Issue 2 January 1989 pg. 256-269

- „Conceptions of Democracy: The Case of Pornography Regulation‟, (1989) 56

Tennessee Law Review.

Karle Klare, “Legal Culture and Transformative Constitutionalism”(1998) 14 South Africa

Journal on Human rights

Lon L. Fuller, “The Forms and Limits of Adjudication” (1978-1979) 92 Harvard Law Review

Barry Friedman, „Dialogue and Judicial Review‟ (1993) Michigan Law Review

Manuel José Cepeda, Judicial Activism in a Violent Context: The Origin, Role, and Impact of

the Colombian Constitutional Court, (2004) in 3 Washington University Global Studies Law

Review 529, 554- 557

Mark A. Graber „The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary‟

(1993) Studies in American Political Development 7(1); 35-73

75
Mark Tushnet, „New Forms of Judicial Review and the Persistence of Rights- and

Democracy-Based Worries‟(2003) 38 Wake Forest Law Review 813, 821 835

- „Social Welfare Rights and the Forms of Judicial Review‟(2004) 82 Texas Law

Review 1895.

Michael c. Dorf, “The Majoritarian Difficulty and the Theories of Constitutional Decision

Making” (Dec 2010) Journal of Constitutional Law Vol 13:2

Mitra Ebadolahi, „Notes: Using Structural Interdicts and The South African Human Rights

Commission to achieve Judicial Enforcement of Economic and Social Rights in South

Africa‟, (2008) New York University Law Review, Vol. 83 1565-1606 at 1591.

Owen Fiss, “Conventionalism,”(1985) 58 California Law Review 177

Owen Fiss, Objectivity and Interpretations, (1982)34 Stanford Law Review. 739.

Ronald Dworkin, “The Forum of Principle” (1981) 56 New York University Law Review 469

Rosalind Dixon, „Creating Dialogue about Socio-economic Rights: Strong Form versus Weak

Form Judicial Review revisited‟(2007) International Journal of Constitutional Law 393

Stephen C. Yeazell, „ Judging Rules, Ruling Judges‟, (1998) Law and Contemporary

Problems Vol 61: No. 3

The Honorable Chief Justice Catherine A. Fraser, “Constitutional Dialogues Between Courts

and Legislatures: Can we Talk?”(2005) Forum Constitutionnel 146,149

Waldron, Jeremy „The Core of the Case against Judicial Review‟ Yale Law Journal‟ (2006)

115: 1346- 1406

76
Internet Sources

Abram Chayes, “The Role of the Judge in Public Law Litigation” (May, 1976) Harvard Law

Review Vol. 89, No. 7, pp 1281-1316 Accessed from http://www.jstor.org/stable/1340256

Bateup , Christine A., "The Dialogic Promise: Assessing the Normative Potential of Theories

of Constitutional Dialogue" (2006) Brooklyn Law Review 71 New York University Public

Law and Legal Theory Working Papers .Paper 11 http://lsr.nellco.org/nyu_plltwp/11

Christopher P. Manfredi & James B. Kelly, „Six Degrees of Dialogue: A Response to Hogg

and Bushell‟(1999) Osgoode Hall Law Journal 373: 513-527. Accessed from

<www://digitalcommons.osgoode.yorku.ca/ohlj/vol37/iss3/1>

Emmett MacFarlene, „Dialogue or Compliance? Measuring legislatures‟ policy responses to

court rulings on rights‟(2013) International Political Science Review 34:39 Accessed from

<www://ips.sagepub.com/content/34/1/39

Hogg, Peter W. and Bushell, Allison A. "The Charter Dialogue between Courts and

Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)." Osgoode

Hall Law Journal 35.1 (1997) : 75-124.

http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2

Kastellec Jonathan P. „Empirically Evaluating the Counter-majoritarian Difficulty: Public

opinion, state policy and Judicial Review before Roe v Wade ‟ (2016) Journal of Law and

Courts, Princeton University Cited from http://www.journals.uchicago.edu/t-and-c

Miyawa O. Maxwel, „Dialogic Landscape In Kenya: An Emerging Trend in Socio-

Economic Rights Enforcement‟ Accessed from

https://osgoode.academia.edu/MiyawaMaxwel

77
Miyawa O. Maxwell “Judicial Enforcement of Socio-Economic rights: A case for Dialogic

approach in crafting appropriate judicial remedies” G62/69047/2011 June 2014 Accessed

from

http://erepository.uonbi.ac.ke:8080/xmlui/bitstream/handle/11295/74238/Mawaya_Judicial%

20enforcement%20of%20socio-economic%20rights.pdf?sequence=3

Orago Nicholas Wasonga, “Poverty, Inequality and Socio-Economic Rights: A Theoretical

Framework for the realization of socio-economic rights in the 2010 Kenyan Constitution.”

(2013) Centre for Human rights, University of Pretoria. 16th August

2013www.etd.uwc.ac.za/xmlui/bitstream/handle/11394/2174/Orago_LLD_2013.pdf?sequenc

e=1 accessed on 25th August 2017

Owen M. Fiss „The Forms of Justice‟ (1979) Yale Law School Faculty Scholarship Series

Paper: Accessed from http://digitalcommons.law.yale.edu/fss_papers

Peter W. Hogg, Allison A. Bushell Thornton and Wade K. Wright, “Charter Dialogue

Revisited: Or “Much Ado About Metaphors”( 2007) Osgoode Hall Law Journal 45.1: 1-65.

Retrieved from: <www://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss1/2>

78