By Sylvester Mbithi

Statutory interpretation” is a legal concept taught in undergraduate law class. That does not mean it is an easy adventure. It is probably the greatest task lawyers undertake, whether in the bar or the bench. It refers to the process of discerning the intention of parliament in provisions of a statute. Lord Hailsham, a senior English judge and Former Lord Chancellor, once said that “probably 9 out of 10 cases heard by the Court of Appeal and the House of Lords turn upon or involve the meaning of words contained in statute or secondary legislation.”

So why is this usually the case? Laws are drafted to deal with present and future situations. Most of the time, a law is drafted with a particular issue in mind but ends up being applied in quite different situations. Draftsmen, in drafting law, may not foresee all future situations in which a provision in a statute will be applied thus overlooking a possible misinterpretation. Another issue is that legislations deal with matters that involve conflicting interests.

The English language, both legal and general, has words that have more than one meaning hence the need to identify the context in which they are used. It becomes even more difficult, when words and phrases used in statutes are not defined in the interpretation section, usually Section 2. Because of the foregoing, judges in England and in many common law jurisdictions, including Kenya, have applied three rules or approaches to statutory interpretation. They include Literal Rule, Golden Rule and Mischief Rule. The approach taken by any one particular judge is often a reflection of that judge’s own philosophy.

  1. The Literal Rule

Under the literal rule (also: the ordinary meaning rule; the plain meaning rule, it is the task of the court to give a statute’s words their literal meaning regardless of whether the result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel v Sirs (1980) said “The courts may sometimes be willing to apply this rule despite the manifest absurdity that may result from the outcome of its application.” The literal rule is often applied by orthodox judges who believe that their constitutional role is limited to applying laws as enacted by Parliament. Such judges are wary of being seen to create law, a role which they see as being strictly limited to the elected legislative branch of government. In determining the intention of the legislature in passing a particular statute, this approach restricts a judge to the so called black letter of the law. The literal rule has been the dominant approach taken for over 100 years.

  1. The Golden Rule

The golden rule (also: the British rule) is an exception to the literal rule and will be used where the literal rule produces the result where Parliament’s intention would be circumvented rather than applied. In Grey v Pealson (1857), Lord Wensleygale said: _“The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further.”

One example of the application of the golden rule is the case of R v Allen – Defendant is charged with bigamy, an offence prohibited in Offences against Persons Act 1861 which reads “whoever is married, marries another commits bigamy.” The court held that the word “marries” need not mean a contract of marriage as it was impossible for a person who is already married to enter into another valid contract of marriage. Hence, the court interpreted it as “going through marriage ceremony”.

  1. The Mischief Rule

The final rule of statutory interpretation is the mischief rule, under which a judge attempts to determine the legislator’s intention; what is the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy? The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s Case (1854): “…for the sure and true interpretation of all statutes in general, four things are to be discerned and considered: What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide? What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? The true reason of the remedy; and then the office of all the judge is always to make such construction or shall suppress subtle inventions and evasions for continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.”

This system of relying on external sources such as the common law in determining the true intention of the parliament is now seen as part of the purposive approach, the approach generally taken in the civil law jurisdictions of mainland Europe. Although the literal approach has been dominant in common law systems for over a century, judges now appear to be less bound by the black letter of the law and are more willing to try to determine the true intention of the Parliament. The task of the judge is now seen as being give effect to the legislative purpose of the statute in question.

In Kenya, Justice Kiage has held in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR that “in modern times, the courts do not apply or enforce the words of statute or rules but their objects, purposes and spirit or core values.  The mischief rule of construction is much the same as the spirit of a statute or rules of procedure.”

Meaning of Section 43(2) of the Law Society Act, No. 21 of 2014.

So why am I revisiting these rules of interpretation? On 16th August, 2018, I filed a motion for consideration during the upcoming Special General Meeting of the Law Society of Kenya. The motion seeks removal from office, Mr. Allen Waiyaki Gichuhi and Roseline Odede as President and General Membership Representative respectively. The motion is anchored on Section 43(2) of the Law Society of Kenya. I reproduce the entire section 43 which reads:

43. (1) The Council of the Society under the repealed Act shall continue in office for their unexpired term and elections held subsequent to the expiry of the term of that Council shall be held under this Act.

(2) A person who is not eligible for election by virtue of having served as a member of the Council under the repealed Act shall not be eligible to vie for election as a member of the Council under this Act.

(3) A person who was immediately before the commencement of this Act serving as the Secretary or an employee of the Society under the repealed Act shall continue in office until the expiry of their term.

(3) Any rule or regulation made, order or directive issued, notification given or any administrative act undertaken under the repealed Act, shall be deemed to have been made, issued, given or undertaken under this Act and shall continue in force and have effect as if it had been so made, issued, given or undertaken under this Act.

First, I must admit that subsection (2) to which the motion is anchored is not well crafted. Upon filing the motion, its true meaning became subject of debate by advocates on social media. Some suggested that if parliament wanted to bar former council members, nothing would have been easier than to state so. Others argued that only former Chairpersons of Law Society of Kenya would be barred by the provision since they used to have a two (2) term limit in office. My perusal of the repealed law, section 13 which provided for “Constitution of Council” revealed that no term limits existed in law, for chairman/person, vice chairman/person or council members of the society. Other colleagues simply dismissed the subsection as being “superfluous” and self-defeating that it could not bar anyone, since no one was ineligible to vie under the repealed law. The sad thing is, some of interpretations by fellow learned colleagues may not be sincere because of interests they have in persons holding those positions.

Using the mischief rule, I deconstruct section 43 as follows. It begins in subsection (1) by stating that sitting council members were to continue in office for their unexpired term. This suggests that they were not to continue in office beyond their term as is also the case for the Chief Executive Officer in subsection (3). Subsection (2) addresses ineligibility to serve in the council in the future. The elephant in the room is, who are those persons barred by the subsection? What we must agree, even with our varying interpretations, is that parliament intended to bar some persons when it enacted the subsection. I flatly disagree the suggestion that the section is superfluous, self-defeating, or that that only chairmen/persons were barred. In any event, a chairman was a council member and no term limits existed for the position, the vice or council members in the Repealed Act. If so, one can possibly argue that the ineligible persons under Cap 18 were the ones barred under the current Act, and be right. My own reading, which I am sure finds favour with most of my learned colleagues, is that the totality of subsection (1) and (2) of Section 43 meant that members of the sitting council as at 14th January, 2015 when the Act commenced, and all former council members under the repealed law were barred from serving council of the society, in the future.

It is for the above reasons, I am strongly convicted that the motion I filed seeking removal of Allen Waiyaki Gichuhi and Roseline Odede, as President and General Membership Representative respectively, has merit and should be approved by members at the Special General Meeting of 15th September, 2018.

Obviously, because of conflict of interest, the President, Vice President or Roseline Odede cannot chair the session addressing this motion. The council is therefore put on notice to appoint a council member other than the three to preside over the motion.

By Sylvester Mbithi

The Writer is an Advocate of the High Court of Kenya