The Supreme Court of Kenya rendered judgment on the question of whether church sponsored schools can bar muslim students from wearing the hijab while they are in school in the case of Methodist Church in Kenya v Mohamed Fugicha and Others, Petition No. 16 of 2016. Unfortunately, the majority of the Supreme Court bench failed to address the main question before the court on the basis of a technicality i.e. the issue of the right of muslim students to wear hijab had been introduced in the litigation by an interested party and not the main litigants in the suit.
However, in a refreshing departure from the Majority of the bench, Justice J.B. Ojwang’ adopted a substantive approach to adjudication and dissented from the majority. It is the twin questions that Justice J.B. Ojwang’ addressed that is the subject of this commentary.
THE MAJORITY’S FORMALISM VERSUS J.B. OJWANG’S TRANSFORMATIVE ADJUDICATION
Legal formalism is adjudication that appears enthralled by the technical aspects of the law, rather than its more philosophical and historical aspects and how the latter are connected to the Constitution and its vision. In this understanding, formalism is a style of reasoning, especially as used by courts of law, which prefers formal, technical or mechanistic reasons over substantive ones and which is preoccupied with the outward appearance of legal problems at the expense of their substance. Such formalistic reasoning in 19th century continental Europe and the United States was denounced by Ihering, Ehrlich, Gény and others in the civil law world, and of course we all remember Holme’s fallacy of logical formalism, Pound’s “mechanical jurisprudence”, Cardozo’s “demon of formalism”, and Felix Cohen’s “transcendental nonsense” in their united dismissal of formalism and Langdell’s conceptualism in the United States.
It is a historical fact that the Kenyan pre-2010 judge slavishly followed the letter of law, lending legalistic cover to authoritarianism. The colonisation of Kenya and the imposition of colonial law in the colony led to the development in Kenya of a legal culture heavily influenced by crude Benthamite and Austinian positivism and mechanistic formalism. The core positivist notions of law as the command of the sovereign and the separation of law and morality (values) became frozen in the conditions of colonial and post-colonial Kenya, so that Kenyan legal professionals largely missed out on the Hartian development of positivism in the 1950s and 1960s. This is evident in the Judges and Magistrates Vetting Board, JMVB Report No 4 of 2012, description of the Kenyan legal culture:
“17. We are unaware of any other constitution in the world that has chosen to elevate the avoidance of undue technicalities to the status of an express constitutional value. Sad Kenyan experience indicates why those words were included. The raising of technical and procedural questions was a particularly strong weapon in the armoury of those who sought to defend the powerful and the wealthy with the connivance of compliant judges. Substantive questions could be evaded and matters left to drift in the courts for so long that outcomes became irrelevant. Reliance on ultra- technicality was used to impede the work of agencies set up to investigate malfeasance by those in positions of authority. Far from furthering the rule of law, these narrow, technical rulings, issued in the name of legality, contributed massively to the prevalence of impunity. Indeed, they undermined the rule of law, promoting a spirit of lawlessness that proceeded from the highest in the land all the way down. The unhappy lesson for the country was that the emancipatory vision of the rule of law should not be confused with the tyranny of heartless legalism.”
(See also: Walter Khobe ‘Justice Njoki Ndung’u’s Concurring Dissents and Transformative Adjudication’ (2015) 5 The Platform pp 40-44.)
This traditional mode of interpretation as evident in Fugicha decision by the Majority, characterised by reciting of value-free positivist mantras, proves largely that Kenyan judges are unwilling to do away with the emphasis on formalist and purely grammatical interpretation of law despite the injunction by the Constitution at articles 10, 20(3) (4), 159 and 259 that judges should adopt a values-conscious, post-positivist and anti-formalist approach to adjudication. Formalism is evident in the Majority of the Supreme Court’s failure to address the merits of the Hijab case on the basis that the main question was introduced in the matter by an interested party through a cross-petition and not the petitioner of the respondent in the case. In contrast, Justice J.B. Ojwang holds that technicalities should not be the basis for the court not rendering justice in the case.
Justice J.B. Ojwang’ rejects the formalistic reasoning by the Majority and holds thus:
“ While it is the case that the reference to “cross-petition” had been inexact in a technical sense, it is for recognition that such flaw was, as a matter of law, mitigated by the superior processes of both the High Court and the Appellate Court, which reaffirmed the cause embodied in the “cross-petition”, appraised the pertinent question, and made the governing pronouncement thereupon… I apprehend the terms of Article 259 (1) of the Constitution, with regard to the prescriptions that this charter is to be “interpreted in a manner that” (a) “promotes its purposes, values and principles”, (b) “advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights”, (c) “permits the development of the law” and (d) “contributes to the good governance” – to ordain that it devolves to the Judge to assign objective meaning and constructive perception to the unbounded prescriptions of the constitutional norm.  I consider the same precept to extend to all statute laws, or particular provisions thereof, so cast as to bear unbounded normative prescriptions.”
JUSTICE J.B. OJWANG’ AND MULTICULTURALISM: A CELEBRATION OF DIVERSITY
The transformative 2010 Constitution of Kenya is imbued in an ethos of multiculturalism. The preamble of the Constitution recognises that Kenya is a country with a diversity of communities and celebrates this ethnic, cultural and religious diversity. In articles 7(3), 11, 32 and 44 of the Constitution, cultural, religious and linguistic/ethnic diversity is acknowledged, respected, promoted and protected. Also worth highlighting is the extraordinarily generous equality clause in article 27 of the Constitution which is ample in the protections it extends. It prohibits unfair discrimination on enumerated and other grounds. This is a reflection of the equality and equal worth of all people from all sectors, communities as well as religions. These provisions affirm the multicultural ethic of the transformative vision of our Constitution.
The Constitution’s extra-ordinary commitment to diversity sprang from our history. Given Kenya’s dictatorial past, in which those in power sought incessantly to command the behaviour, and choice of all in society, it is no accident that the Constitution affirms the “right to be different” through the provisions highlighted. This is a promise that the Constitution envisages an open and democratic society in the fullest sense thus the need for the citizenry to be accepting of cultural and religious pluralism. In line with its post-liberal motif, the Constitution demands more than the liberal notion of “tolerance”. The generosity of the Constitution is informed by the need to open up and embrace an inclusive concept of constitutional citizenship. It follows that people have a right to be who they are without being forced to subordinate themselves to the cultural and religious norms of others. It must be underscored that respect for difference is the essential glue that binds a society together and allows it to function and move forward in constructive harmony. (See: Walter Khobe ‘Pope Francis, Diversity and the “Othering” of Religious Minorities’ (2015) 12 The Platform pp 45-48.)
Transformative constitutionalism suggests certain principles of accommodation, for it is not simply a set of limits on political power, but an aspiration toward a certain kind of civil society: one in which people share a public moral order and respect one another as common participants in that order. This demands that Kenya must work towards what Ayelet Shachar in ‘Multicultural Jurisdictions’ has called “transformative accommodation” i.e. respecting a reduction of inequality between minority groups and the wider society (diversity), as well as an enhancement of equality within the various groups that make up the society (individual rights). That is the call sounded in our Constitution. The multicultural vision of our transformative Constitution is a testament that Kenyans accept the reality that they may not agree with the practices and opinions voiced by some of those with whom they share their communal space. Despite this reality, Kenyans affirmed that they are willing to allow these “others” to voice those opinions or act as their particular religion or culture dictate.
Justice J.B. Ojwang’ recognised and endorsed this celebration of difference and endorsed an ethos of multiculturalism thus:
“It is my standpoint, in departure from the Bench majority, that all the applicable terms of the Constitution and of the enacted law, do entail the finding – precisely in keeping with that of the Appellate Court – that a right balance amidst people holding different faiths, in the multi-cultural environment prevailing at the pertinent school, will by no means be jeopardized on account of the variation to the school dress-code. I would, therefore, have dismissed the appeal.”
It means that the Constitution has made a choice not to confine, minimize or eject those who have different views, or subscribe to different religious or cultural practices. It is a rejection of segregation, marginalization and in extreme cases, of exile and genocide. The Constitution has instead adopted an approach celebrating diversity– a willingness to live with people who are different from us – those Jean-Paul Sartre called “the others” – and to co-exist with the opinions and practices one does not agree with.
We must always remember that our Constitution represents a radical rupture with a past based on exclusion, and the movement forward to the acceptance of the need to develop a society based on respect for human dignity by all for all. The Constitution seeks to engender an expansive sense of citizenship, itself indispensable for the project of democracy, that this is our country and no Kenyan is an outsider thus they do not need to beg or apologize to be in the public space. Such a right to belong, such rightful sense of ownership has nothing to do with charity or hospitality, instead it is an affirmation that the Constitution does not impose a precondition that “the others” should assimilate “mainstream” religious practices as a precondition for participating in public life.
The implication of the multiculturalism envisaged by the Constitution is that courts must embrace what has been called “a jurisprudence of difference”. Such jurisprudence affirms and, indeed, celebrates “the others” beyond the confines of mere tolerance or even magnanimous recognition and acceptance. This means that courts must develop a jurisprudence that embraces full participation and unconstrained inclusion of “the others” – minorities. The courts are expected to develop a jurisprudence in relation to issues of identity and difference that interrogates, with transformative rigour, “mainstream” preferences and prejudices regarding the organisation of societal life, inspired by a desire to avoid marginalization of “the others”.
In sum, the 2010 Constitution should be read in the manner affirmed by Justice J.B. Ojwang’ which is that courts must approach cultural and religious expression cases as concerned with constitutional substantiation for the affirmation and celebration of identity, especially the identity of “the others”. We must avoid the path of aesthetic of homogeneity that believes that those who are different must be hounded, reigned in or not taken seriously.