Constitutional silences and their role in shaping legal doctrine in Kenya

A Constitution does not work by itself or speak like an oracle.[1] It is by judicial interpretation that many a time you breathe life into the provisions of a Constitution.[2] At the heart of this is the task of construing the true meaning and intent of explicit constitutional provisions. However, a Constitution, like any document, leaves certain things unsaid.[3] In the Kenyan legal system, there are silences; things the Constitution[4] does not seem to regulate; matters as to which it seems not to speak.[5] Luckily, constitutional silences may speak volumes, [6] i.e that which is prevented from being said or which is too grand to convey, bears meaning. The existence of silence in the constitutional text does not necessarily result in a lack of meaning. As pointed out in this article, the Kenyan Judiciary has on many occasions, proceeded in very different ways, issuing landmark pronouncements when it is confronted with hard cases where the Constitution is silent.

In its ordinary context, constitutional silence refers to the absence of explicit provisions in a Constitution regarding a particular issue or topic. It might be understood as a unique subset of the problem of legal indeterminacy, but one that is especially salient in connection with constitutional documents, and especially pressing in a condition of constitutional transition.[7] There are very good reasons for constitutional drafters to adopt “silence” as a mode of drafting which are inter alia: the high cost of securing the agreement of all relevant constituencies; time constraints in drafting a Constitution; limits on information available to constitutional drafters; and uncertainty about how institutions will function post-adoption of the Constitution.[8] When Judges are confronted with silences in the Constitution on certain subjects/issues,  they mostly resort to giving the existing law broad and purposive interpretation.[9]

As we shall see, most of the rulings by the Courts especially the Supreme Court of Kenya in cases where the Constitution has been silent have played a critical role in the development of the legal doctrine in Kenya, including by giving rise to many of the most consequential judicial pronouncements in Kenyan history. This article therefore examines the philosophical basis of constitutional silences in constitutional texts and highlights that however surprising it might seem, rulings in such instances may have played key roles in shaping the legal doctrine in Kenya. According to the synthesis offered here, the Judiciary, in addition to establishing distinct legal doctrines, sets the stage for transformative future constitutional developments in Kenya. This article further captures that constitutional silences have the potential to draw their meaning from the fundamental norms that underpin the constitutional system as a whole. Examples of these constitutional norms that serve to plug these silences in Kenya are the  rule of law, separation of powers etc. This article thus explores the nature of constitutional silence and posits that constitutional silences may hold value because they signal possible pathways for developing the law over time. It concludes that, rather than being an esoteric or marginal issue, constitutional silence and how we respond to it goes to the very heart of our understanding of the Kenyan legal system.

The silences mposed by the Constitution of Kenya, 2010: Judiciary’s transformative rulings

The Constitution has been established as the highest law to oversee the practice of governance and guarantee certain rights to the people in it. It is also a mirror reflecting the ‘national soul’; the identification of ideas; aspirations of a nation; the articulation of the values bonding its people; and the disciplinary measures against its government.[10] The spirit and tenor of the Constitution must therefore preside and permeate the process of judicial interpretation and judicial discretion.[11] Can we therefore say that silences exists within the Kenyan legal system? Ilmar Tammelo, drawing on modal logic, concludes that it is possible to have an absence of law; an ‘open’ legal order; and consequently the prospect of a non liquet declaration in any legal system.[12] Even a written Constitution does not expressly provide for every conceivable situation. The silences in a Constitution sometimes speak very tellingly. These silences have to be sagaciously construed, not lazily assumed or piously hoped.

Courts in most jurisdictions, Kenya included, have been faced with the dilemma of entertaining controversial cases where the Constitution is silent and the Judges have to base their decisions on some legal principle or broadening the existing Constitution to try and address the legal lacuna.[13] For example, the Constitution of Kenya 2010 is silent on the issue of capital punishment. While the death penalty remains on the books, it has not been carried out since 1987. What is important is not only what a Constitution says, but even more what it means and what is not expressly stated is also sometimes as eloquent and meaningful as what is said.[14] Every sentence, every phrase, is in part silent with respect to how a judge is to go about attributing meaning to it; how narrowly or literally it is to be taken; what significance is to be attributed to what it excludes along with what it includes; how its context, both elsewhere in the same text and in preceding and comparable texts, ought to figure in what it conveys.[15]

It is important in this context to distinguish silences from structural implications. Texts have both explicit and implicit meanings. The explicit meanings arise from the plain meaning of the text, while the implicit meanings rely on contextual factors, such as authorial intentions. Something can be necessarily implied, but not all structural implications are necessary.[16] Many implications are contingent products of a particular combination of express text and context. And though implications obviously deal with matters not expressly referred to by words of the Constitutional text, they, like express texts, are also directly concerned with approaches to human interpretation.[17] Silences, by contrast, exist in their own right and not as derivatives of the text. The way constitutional silences difer from structural implications is that they tend to be sourced in a more robust normative tapestry which is in turn aixed to a uniquely constitutional context.[18] This has the additional imputation that the exercise of identifying and affording meaning to silences is very diferent from the process of interpreting texts or implications. While implications look to the text for primacy,[19] silences do not. Silences are meaningful on their own. By diferentiating silences from implications, we are exploring the nature of ‘silence itself [as capable of being denied] in relationship to words, as the pause in music receives its meaning from the group of notes round it. The silence [itself] is a moment of language’.[20]

From the foregoing, constitutional silence can play an important role in shaping legal doctrine, particularly when it comes to interpreting the meaning and scope of constitutional rights and principles. In some cases, constitutional silence can lead to the development of legal doctrine that fills gaps in the Constitution and extend its protections to new contexts and situations. It is not surprising that a combination of factors including the history of the constitutional text under consideration play a major influence in informing judicial officers in the determination of hard cases and promotion of justice where the constitution is silent.[21] According to former Chief Justice of Kenya, Justice Madan C.B: “justice of any kind other than that contemplated by the Constitution may erode public confidence of the Judiciary.”[22] Indeed, the society has a lot of expectations from the Judges who have enormous duty  of resolving conflicts and disputes and in the process they create new norms, which are binding to all the citizenry.

The Judges expand the law to take care of the past, present and future, taking account of the underlying values and customs that have survived the test of time. Through an independent Judiciary the law is depicted as separate from-and ‘above’- politics, economies, culture and the values or preferences of Judges. This sacrosanct character of the law is accomplished and ensured through the attributes of the decision-making process, including judicial subservience to the Constitution, statutes and precedent; the quasi-scientific, objective nature of legal analysis; and the technical expertise of Judges and lawyers.[23]

The Courts in Kenya, especially the superior courts i.e the High Court, Court of Appeal and the Supreme Court have issued a series of decisive decisions during the transition period following the promulgation of the new Constitution of Kenya, 2010. Recent decade has produced sweeping changes in our legal culture, including as a result of internet communications, growing political polarization and a widening attentiveness among the general public to the Supreme Court’s work. Some Supreme Court rulings have made grand entrances. For example, a few months back, the eyes of the public law world turned to Kenya when the Supreme Court issued a landmark ruling that reverberated across the region and the world.[24] The Court announced its highly-anticipated judgment on the constitutionality of the Building Bridges Initiative Constitutional Amendment Bill, known as the BBI. BBI was a multi-subject constitutional reform initiative that made multiple proposals to change different and unrelated parts of the Kenyan Constitution and it combined all of these reform proposals into one single enormous bill that sought to transform some of the most fundamental commitments in the country’s Constitution.[25] It was an enormous package of constitutional reforms. The BBI was a mega-constitutional reform that, if successfully enacted, would have affected almost the entirety of the 2010 Constitution. It therefore came as no surprise when the BBI was challenged in court as an unconstitutional reform.

Procedurally, the challenge mainly focused on whether the President has the power to lead amendments through popular initiative, and whether the required levels of public participation were achieved in pursuing the bill. Substantively, the petition focused on whether the Kenyan Constitution contains explicit or implied limitations on the amendment power, and whether the proposed amendments contradicted these limitations. The lower courts ruled that the BBI was an unconstitutional reform.[26] The Kenyan Supreme Court’s ruling was striking. The Court held that the BBI was unconstitutional.[27] Specifically, Supreme Court judges declared that the BBI was unconstitutional because it was not a proper constitutional amendment and that instead it amounted to a constitutional dismemberment. The Supreme Court held that the basic structure doctrine does not apply under the 2010 Kenyan Constitution, and accordingly the four-step process outlined in the High Court was inapplicable (with one judge dissenting). According to the majority, the doctrine was not necessary in view of the sufficiently robust procedural bulwarks against capricious amendments to the Constitution. The court also found with a four–three majority that the amendment bill was enacted through a participatory process, except reforms related to changes to electoral constituencies, which were added after the end of the consultative process. Nevertheless, the court found the entire amendment invalid on the grounds that the president does not have the power to initiate a popular amendment process (with a six–one majority) and the President did in fact initiate the amendment bill (with a five–two majority). As with the High Court and Court of Appeal, the Supreme Court did not clearly justify the need to decide substantive issues before determining procedural issues, especially once the amendment was found to be wanting on procedural ground. The BBI was therefore invalidated, it has not been enacted, and it is now laid to rest. Nevertheless, several judges left open the possible presence of implied limits on the amendment power. Notably, the case specifically related to amendments through popular initiative, but not the two other amendment procedures provided for in the Constitution, namely amendment through supermajority in both legislative houses, and amendment through supermajority in the legislative houses and approval in a referendum. According to judges of the Kenyan Supreme Court, it was because the package of reforms in the BBI amounted to a constitutional dismemberment that they were declared unconstitutional. In view of the constitutional silences, it is difficult to second-guess the intention of the constitutional drafters in Kenya on the existence of the substantive limits on the amendment power, and much less empower the judiciary to discover and enforce such limits. The judicial assertion of the power to review amendments in the absence of constitutional guidance is therefore not unique to Kenya.

Also, in NGOs Co-ordination Board v. Eric Gitari,[28]the Supreme Court of Kenya, while deciding a number of issues which revolved around the question of whether refusal to register an organization of persons who fall within the LGBTQ+, contravenes the fundamental rights and freedoms of association guaranteed in the Constitution of Kenya and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered, were infringed upon, the Bench of P. M. Mwilu; DCJ., and M.K. Ibrahim, S.C. Wanjala, Njoki Ndungu, & William Ouko, JJ., with a ratio of 3:2, held that it would be unconstitutional to limit the right to form association purely on the basis of the sexual orientation of the applicants. Affirming the reasoning of the courts below, the Kenyan Supreme Court held that LGBTQ+ community have the Right to Freedom of Association, which includes the right to form an association of any kind: “Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not”.[29]

The Supreme Court at the very outset clarified that, the matter was not about the legalization or decriminalization of LBGTQ+, or the morality of same-sex marriage. The Court stated that the core issue for determination between the parties was whether the decision of the Executive Director of the NGO Coordination Board not to register LGBTQ association violated Article 36 of the Constitution. The Court noted that the right to freedom of association is also recognized in international and regional human rights instruments which Kenya has ratified. The right to freedom of association is provided for under Art. 22 (1) of the International Covenant on Civil and Political Rights (ICCPR). The Court further noted that literal reading of Art. 36 is that the LGBTQ+ group is not excluded from the definition under Article 36. The ‘Right to Form an Association’ is an inherent part of the Right to Freedom of Association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Furthermore, this right cannot be limited unless as provided for under the Constitution. The Court observed that there was no evidence placed before the appellant to demonstrate that persons who profess to be LGBTQ+, are criminals. This was a mere assumption which was not born out of evidence when indeed it is confirmed by empirical data that even heterosexuals commit offences under Sections 162, 163 and 165 of the Penal Code. The Court further observed that although Sections 162, 163, and 165 prohibit any person from committing acts that go against the order of nature, the said sections do not distinguish between heterosexual or homosexual offenders: “Indeed, the words, “any person”, connote a potential offender under those sections who may very well be heterosexual, homosexual, intersex or otherwise”.[30] The Court pointed out that Art. 36 (3) of the Kenyan Constitution contemplates that the right to freedom of association is subject to limitation. However, any limitation on any fundamental rights and freedom is subject to Art. 24. Perusing the afore-stated penal provisions pursuant to Art. 24 of the Kenyan Constitution, the Court found that Art. 4 of the Constitution, does not express the intention to limit LGBTQ+ community’s right to freedom of association. Likewise, the Sections do not specify the nature and extent of the limitation of the freedom of association, if any. The Court further found that the appellant’s interference to the respondent’s right to freedom of association did not pursue any legitimate aim such as national security or public safety, the prevention of disorder or crime, the protection of health and morals etc. Therefore, the appellant’s limitation of the right to freedom of association was not proportionate to the aim sought. The Court pointed out that the Constitution mandates the State and its organs to uphold national values and principles of governance such as human dignity, equity, social justice, inclusiveness etc. The State also has a fundamental duty to address the needs of vulnerable groups within society including members of minorities and marginalised communities. It was thus held that Right to Freedom of Association is a human right, vital to the functioning of any democratic society. However, the Court cautioned that- “It should be noted however that all persons, whether heterosexual, lesbian, gay, intersex or otherwise, will be subject to sanctions if they contravene existing laws”.[31]This ruling is vital in the sense that it captures the right of LGBTQ community to form associations despite the Constitution not being very explicit about it.

Further, there have been several relevant persuasive reasonings with regards to various definitions of certain provisions which the Constitution hasn’t defined under Article 260. One relevant ruling is in relation to the appropriate definition of citizen which the Constitution is silent on. The High Court (Majanja, J.) held in Famy Care Limited v. Public Procurement Administrative Review Board & Another,[32] as follows: “Though the term “citizen” is not defined in Article 260, citizenship is dealt with under Chapter Three of the Constitution, Articles 12 to 18. The purport and effect of these provisions is that citizenship is in reference to natural persons… A juridical person is neither born nor married as contemplated by these Articles. Similarly, the provisions on citizenship by registration and dual citizenship set out in Articles 15 and 16 of the Constitution negative an intention to define a citizen as including a juridical person… A reading of the Constitution and an examination of words “person” and “citizen” within the Constitution can only lead to one conclusion: That the definition of a citizen in Articles 35(1) and 38 must exclude a juridical person and a natural person who is not a citizen as defined under Chapter Three of the Constitution.[33] I find the above reasoning to be a correct and important position in law. Also, in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae),[34] the Supreme Court provided Judicial interpretation of Article 2(5) of the Constitution of Kenya since it is silent on exactly what “general rules of international” law forms part of the law of Kenya. The Court provided clarity at para. 140 as follows:  “In light of the foregoing, we hold that the words general rules of international law in Article 2 (5) of the Constitution refer to customary international norms, including jus cogens”.[35] There is a general acceptance that customary international law requires, in the words of Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), “a general practice accepted as law,” that is, both a sufficiently widespread and consistent practice and what states have accepted as law (opinio juris) accompanying it. Examples of customary international law principles thus include: the doctrine of non-refoulment of refugees, and the granting of immunity for visiting heads of state.

In each of these cases, the Judiciary launched transformative constitutional principles. With these pronouncements, the effort to establish new legal doctrines was observed. Citizens took notice. Interest groups took sides. The media editorialized. Opinion leaders railed. Other opinion leaders railed back. The legal community, more so than the larger political community, continued to take on the task of monitoring Supreme Court’s work. The Judiciary operates within a highly developed and highly institutionalized legal system with their own sense of professionalism and continuity. Accordingly, their decisions are couched in language that would be intelligible, or at least would appear to be intelligible, to Kenyan legal professionals. The Kenyan Judiciary in this respect has offered important contrast to Judiciaries in other authoritarian settings.[36]

Also, the Constitution, despite providing for public involvement in making decisions which affects them, doesn’t outline the criteria/threshold to be met in such a scenario. The Supreme Court of Kenya set the threshold for assessing whether public participation has been met in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v. Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party).[37] The Court at para. 96 of the Judgment set the constitutional test for adequate public participation as being the “reasonableness” threshold. The Court observed thus: “Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.”[38] The Court went ahead to formulate the guiding principles for public participation as follows:

“(i) As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.

(ii) The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.

(iii) The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.

(iv) Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is a need for both quantitative and qualitative components in public participation.

(v) Public participation is not an abstract notion; it must be purposive and meaningful.

(vi) Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.

(vii) Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.

(viii) Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.

(ix) Components of meaningful public participation include the following:

a. clarity of the subject matter for the public to understand;

b. structures and processes (medium of engagement) of participation that are clear and simple;

c. opportunity for balanced influence from the public in general;

d. commitment to the process;

e. inclusive and effective representation;

f. integrity and transparency of the process;

g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”[39]

Constitutional silences empowers Judges to address issues that were never contemplated by the Constitution during its making. It also exposes judicial officers to decisions from other jurisdictions giving them different perspectives from global contexts and paradigms that are constantly changing, as the current President of the United States, Joseph Biden, who was the chairman of Judicial Committee during Justice Robert Bork’s nomination deliberations stated: “My rights are not derived from any government … My rights are there because l exist. They were given to me and each of our fellow citizens by our creator and they represent the essence of human dignity.”[40]

Decisions in instances where the Constitution is silent have done the heavy lifting in diverse fields of constitutional decision-making. Their impact has been somewhat great. In those circumstances when Judges are faced with very difficult cases where there is no law, custom, convention or tradition, which lays the guidelines on how to adjudicate controversial and politically sensitive cases, yet they have sworn to defend, protect and preserve the constitution, they have been broadening the law by looking beyond the Constitutional text.[41] In the case of the Attorney General & 2 Others v Ndii & 79 Others; Prof. Rosalind Dixon & 7 others (Amicus Curiae),[42] Njoki Ndungu, SCJ, spoke to constitutional silences in the following terms: “[1188] The unsaid is influential in constitutional law. Some matters of constitutional relevance are sometimes left unaddressed. Sometimes, knowingly, or unknowingly, the drafters of the Constitution may underappreciate how much power rests in the silence around the text. Constitutional silences are functional and inevitable. Enabled by the lack of very strict textual restraints, Constitutions have the capacity to grow with time, experience, societal needs, and changes, thus allowing successful Constitutions to thrive. In India, for example, courts have used the doctrine of constitutional silence to expand the ambit of rights and to make democracy substantive.”[43]

The silences in some areas are deliberate. This was adverted to by Dr. Rajendra Prasad in the Constituent Assembly.[44] Gaps in a Constitution should not be seen as simply empty space. They amount to a substantial plenum of strategic content and meaning vital to the preservation of a Constitution. Gaps are valuable not in spite of their obscurity but because of it; they are significant for the attitudes and approaches of the Constitution that they evoke, rather than the content or substance of their strictures. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a Constitution as its more tangible and codified components.[45]

Further, Prof Laurence Tribe, in his work, “The Invisible Constitution”,[46]  espouses that visible Constitution floats in a vast deep ocean and crucially and invisibly in an ocean of ideas and experiences. It is only in the depths of that ocean that the Constitution finds its meaning. He points out that constitutional silences pervade all of constitutional law.[47] Invisible in the context means extra-textual. Constitutional silences, like silences of other kinds, are not just occasional gaps or omissions in an otherwise seamless design. They are everywhere and come in as many flavours and varieties as sounds. Ambiguity and multiplicity of meanings are in a sense manifestations of silence.[48] There are many reasons to be silent as there are to speak, and as many ways to hear meaning in the sounds of silence. Tribe is of the view that much of the Constitution, including some of its most important parts are invisible, ie, extra textual, many of our most cherished principles and propositions of constitutional law cannot be found in the text. He says that without the invisible Constitution the visible one is fatally, even logically, incomplete.[49]

As the Supreme Court of Kenya has observed on several occasions,[50] the silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. The Constitution is a living document that cannot be frozen at any point in time and interpretation must be resilient and flexible with the court always attempting to expand the reach and the ambit of the fundamental rights rather than attenuate their meaning and content by judicial construction.[51] Further, an independent Judiciary with Judges dedicated to legal reasoning is an important ingredient in the development of the legal doctrine in Kenya.[52] It takes the wit and innovativeness of a Judge to open the law and go beyond the constitutional text whose sole purpose is not to enshrine any democratic or otherwise, beyond fidelity to its provisions.[53] Ultimately, the duty of a Judge when faced with hard cases where the constitution is silent is to balance all his ingredients –his philosophy, logic, analogies, history, customs, his sense of right and all the rest, and adopting something new at one end and sloughing off something old at the other, determine as wisely as he can which weight shall tip the scales. After the wearisome process of analysis is finished, the Judge will have to make for himself a new synthesis. With his deep study and thinking, with his years of experience and with the aid of that inward grace which comes now and again to the elect of any calling, the analysis may help to make the synthesis a true one. Judges will have to feel their way here as elsewhere in the law. “Somewhere between worship of the past and exaltation of the present the path of safety will be found.”

When a court refuses to recognize constitutional silence, one can, in certain cases, describe its behavior as embodying constitutional despotism. This would be the case when it views law purely as an artifact of the arbitrary will of the supreme lawgiver.[54] Constitutional despotism requires a court to exclude ambiguity from the universe of constitutional questions and instead read the Constitution as though its meaning is always clear and incontrovertible. Constitutional despotism abandons the goal of seeking “inter-subjective agreement about the meaning of a text”,[55] and seeks to impose a singular meaning on the text solely by appeal to its superior position in the judicial system. It shares with classical despotism its reliance on will instead of law, but it masks its exercise of will through an arbitrary interpretation of constitutional law. The court’s reading of the text, which in itself may be a permissible reading of the text, is transformed, by virtue of interpretative despotism, into the only conceivable reading of the text.

In other cases, however, constitutional silence can lead to uncertainty and disagreement about the meaning and application of constitutional principles. When a Constitution is silent on a particular issue, it may be up to courts and legal scholars to interpret the Constitution and apply its principles to new situations. This can lead to divergent interpretations and conflicting legal doctrines, which can create legal uncertainty and undermine the legitimacy of the legal system. This may limit human rights protections. If a Constitution does not explicitly recognize or protect a particular human right, individuals may not be able to rely on the Constitution to assert that right in Court or other legal proceedings. This leaves individuals vulnerable to abuses of power by the government or other actors. Constitutional silence can also lead to the development of legal doctrines that limit the scope of constitutional protections. For example, if a Constitution does not explicitly protect a particular right, courts may interpret this silence as a signal that the right is not intended to be protected. This can limit the development of legal doctrines that would extend the scope of constitutional protections in new or emerging areas.

Conclusion: A paean to the Constitution of Kenya

Everything that we see is a shadow cast by that which we do not see.” And “Everything that we do not see is a shadow cast by that which we might have seen.”[56]

As discussed above, the role of constitutional silence in shaping legal doctrine is complex and multifaceted. While it can create challenges and uncertainties for legal interpretation and application, it can also provide opportunities for creative legal thinking and the development of new legal doctrines that expand constitutional protections to new contexts and situations. Ultimately, the impact of constitutional silence on legal doctrine will depend on a range of factors including the legal system in question, the political and social context in which the Constitution was adopted, and the interpretative methods used by courts and legal scholars. A genuine and methodical factual account leads to Judicial perceptions on right and wrong where there’s a legal vacuum. Decisions by the superior courts in Kenya in Constitutional law have been both common and important, especially in instances where the Constitution is silent. Indeed, as this article has shown, they have transformed the legal doctrine regarding diverse subjects.

By way of recommendation, it is submitted that it’s vital to analyse constitutional silences in a systematic and comprehensive manner. A useful way of doing so is by examining silence in the light of a series of questions relating to its existence, origins and character as well as the range of possible responses to it.[57] Each of these four categories of questions provides useful insights into the many unspoken assumptions about how we view the nature and operation of the international legal system.[58]

The author is a third-year law student at the Catholic University of Eastern Africa.


[1]  Sudhish Pai, “Construing the Sounds of Constitution’s  Speech: Meanings Beyond Text” p. 1. Available at https://academic.oup.com/book/41749/chapter-abstract/354158467?redirectedFrom=fulltext Accessed on 16 May 2023.

[2] Ibid.

[3] Constance Youngwon Lee, “Constitutional Silences and Institutional Integrity,” p. 1. Available at Constitutional_silences_and_institutional_integrity/20188619 Accessed on 16 May 2023.

[4] Constitution of Kenya, 2010.

[5] Helen Quane, “Silence in International Law,” Swansea University School of Law, p.1, Available at article-abstract/84/1/240/2262853 Accessed on 17 May 2023.

[6] Michel Foucault, “The History of Sexuality:” Vol 1 (Random House, 1978) 27.

[7] Mohammad H. Fadel, “The Sounds of Silence: The Supreme Constitutional Court of Egypt, Constitutional Crisis and Constitutional Silence, Oxford University Press, 2018, p. 938. Available at https://academic.oup.com/icon/article-abstract/16/3/936/5165822 Accessed on 17 May, 2023.

[8] Rosalind Dixon and Tom Ginsburg, “Deciding not to Decide: Deferral in Constitutional Design,” 9(3-4) INT’L. J. CONST. L 636, 638 (2011).

[9] Evans Ondieki, “The Doctrine of Implied Jurisprudence and the Role it has Played in Adjudication of Constitutional Cases in Kenya,” University of Nairobi, Nairobi, 2005, p. 14.

[10] In the Matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011.

[11] Ibid.

[12]  ‘On the Logical Openness of Legal Orders’ (1959) 8 Am J Comp L 187, 193-200, 202.

[13] Gavin W. Anderson, “Constitutional Rights After Globalization,” Hart Publishing, Oxford, 2005, p.67.

[14]   Sudhish Pai, “Construing the Sounds of Constitution’s  Speech: Meanings Beyond Text” p. 1. Available at https://academic.oup.com/book/41749/chapter-abstract/354158467?redirectedFrom=fulltext Accessed on 16 May 2023.

[15] Ibid.

[16] Sir Robert Garran, ‘Address Delivered at the University of London’ (1924) 40 Law Quarterly Review 202, 216.

[17]   Constance Youngwon Lee, “Constitutional Silences and Institutional Integrity,” p. 2. Available at Constitutional_silences_and_institutional_integrity/20188619 Accessed on 16 May 2023.

[18] Ibid.

[19] Justice Nye Perram, ‘Project Blue Sky: Invalidity and the Evolution of Consequences for Unlawful Administrative Action,” (2012) Federal Judicial Scholarship

[20] Jean-Paul Sartre, What is Literature? (Harvard University Press, 1949) 38. Here, Sartre comments on the way blank spaces control the revealed speech around them.

[21] See In the Matter of the National Land Commission, SC Advisory Opinion No.2 of 2014; [2015] eKLR.

[22] Miscellaneous Application No. 271 of 1985.

[23]  Michael Foley, The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government (1989), p. 10.

[24] Petition No. 12 of 2021 (consolidated with Petitions 11 & 13 of 2021) (Supreme Court of Kenya).

[25] The Constitution of Kenya (Amendment) Bill, 2020.

[26] See Petition No. E282 of 2020 (Consolidated) (High Court of Kenya); Petition E291 of 2021 and Civil Appeal E292, E293 and E294 of 2021 (Consolidated) (Court of Appeal of Kenya).

[27]  Petition No. 12 of 2021 (consolidated with Petitions 11 & 13 of 2021) (Supreme Court of Kenya).

[28] Petition No. 16 of 2019, decided on 24-02-2023].

[29] Ibid.

[30] Ibid.

[31] Ibid

[32] HC Petition No. 43 of 2012; [2013] eKLR.

[33] Ibid.

[34] SC Petition No. 3 of 2018, [2021] eKLR (Mitu-Bell Case).

[35] Ibid.

[36] Dworkin R.. Contemporary Jurisprudence. Edited by Marshall Cohen (Duckworth) P. 106.

[37] SC Petition. No. 5 of 2017; [2019] eKLR (BAT Case).

[38] Ibid.

[39] Ibid.

[40] Joseph Bidden’s Opening Speech to the Senate Summer 1989 (unpublished).

[41]  Evans Ondieki, “The Doctrine of Implied Jurisprudence and the Role it has Played in Adjudication of Constitutional Cases in Kenya,” University of Nairobi, Nairobi, 2005, p. 15.

[42]  (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR)

[43] Ibid.

[44] december-1884-28th-february-1963

[45]    Sudhish Pai, “Construing the Sounds of Constitution’s  Speech: Meanings Beyond Text” p. 8 Available at https://academic.oup.com/book/41749/chapter-abstract/354158467?redirectedFrom=fulltext Accessed on 16 May 2023.

[46] Available at https://global.oup.com/academic/product/the-invisible-constitution-9780195304251?cc=us&lang=en& Accessed on 20 May 2023.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50]   (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR)

[51] Boli John, Constitutionalism & the Rule of Law. Perspectives. Vol. 2 No. 1 P. 3

[52] Ibid.

[53] Walter F. Murphy Supra note 127 P. 118.

[54]  Mohammad H. Fadel, “The Sounds of Silence: The Supreme Constitutional Court of Egypt, Constitutional Crisis and Constitutional Silence, Oxford University Press, 2018, p. 938. Available at https://academic.oup.com/icon/article-abstract/16/3/936/5165822 Accessed on 17 May, 2023.

[55] James Melton et al., On the Interpretability of the Law: Lessons from the Decoding of National Constitutions, 43 Brit. J. Pol. Sci. 399, 400 (2013).

[56] Martin Luther King, Jr.

[57]  Helen Quane, “Silence in International Law,” Swansea University School of Law, p.34

[58] Ibid.