The Supreme Court versus Royal Media Services: History as ‘Super Context’ in Constitutional Interpretation

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By Walter Khobe

A written text cannot have one pure or true meaning because meaning is a function of language itself and not of some or other mental process of the author. In this view, the meaning of a text is never fixed or stable but changes with the context within which the text is situated. Chief Justice John Marshall, then of the United States Supreme Court, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 414 (1819) made this point thus: “Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea . . .” This points to the widely acknowledged reality that the language of a Constitution in general and a Bill of Rights in particular (often) has no single “objective” meaning and judges who interpret and apply the Constitution cannot (at least not always) do so with reference to only the language of the constitutional text.

This is not to suggest that the words of the constitution can be twisted and turned into justifying any outcome, or that the constitutional text provides no guidance at all. Still, the experience of court watchers in most jurisdictions suggests that a particular constitutional provision may not sufficiently warrant (not to mention, compel) a particular outcome in a given case. Instead, the interpreter makes a choice from among more plausible outcomes or options. It is because of this that David Feldman in ‘Factors Affecting the Choice of Techniques of Constitutional Interpretation’ indicates that even though the text of the constitution sets the outer boundaries of acceptable interpretation, in the final analysis the text ‘is a source of inspiration rather than a determining factor’, which means that ‘constitutional courts must make an authoritative choice between possible constitutional interpretations’, after consideration of the practical consequences of such choices. This is so due to the fact that the language of a modern constitutional text is viewed as broad in scope, and as setting out general principles that judges must interpret and apply. These views point to the reality that the language of a Constitution cannot (always) produce one absolute fixed meaning.

Precisely due to this reason, Renáta Uitz in ‘Constitutions, Courts and History: Historical Narratives in Constitutional Adjudication’ argues that constitutional interpretation has a tendency to rely on references to history and traditions (historical narratives) in order to clarify or supplement constitutional provisions, to determine their proper scope of application, and even sometimes to substitute constitutional provisions. Independent of the controlling characteristics of the argument in which they are subsumed, in constitutional cases historical narratives are perceived to be successful in curbing the indeterminacy resulting from the constitution’s open texture. Thus courts consult the past for guidance, to provide backing for a particular interpretation of the constitutional text, and in order to reduce indeterminacy.

Underscoring this position, Chief Justice Lamer then of the Canadian Supreme Court in New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, 358 noted that “the interpretation of the Charter, as of all constitutional documents, is constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society.” This means that constitutional interpretation is open to arguments from a range of sources—not only text and precedent, but also history, structure, practice, consequences, and values linked to the Constitution.

A similar point has been made by the revered first President of South Africa’s Constitutional Court, Arthur Chaskalson in the landmark case of S v Makwanyane & Another 1995 3 SA 391 (CC) thus: “a constitutional right must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of the [Bill of Rights] of which it is part.” This is also the approach taken by the German Federal Constitutional Court in its famous first Abortion Decision, 1975, 39 BVerfGE 1 (F.R.G.) where it supplemented the value-oriented approach to interpreting the Basic Law with the need to take into account the reaction to the Nazi regime thus: A provision of the basic law should “be understood only in light of the historical experience and spiritual moral confrontation with the previous system of National Socialism.” Similarly, the Constitutional Court of Hungary famously stated the following in the Retroactive

Political Legislation Case I, Judgment 11/1992 HCC The Constitutional Court cannot ignore history since it has to fulfill its task embedded in history. The Constitutional Court is the repository of the paradox of the ’revolution under the rule of law’: in the process of the peaceful transition, beginning with the new Constitution, the Constitutional Court must, within its competences, in all cases unconditionally guarantee the conformity of the legislative power with the Constitution.” The approach to constitutional interpretation emerging is that text is of lesser importance, and is often considered only the shadow of the general principles of rights and the constitution generally.

Given that the text of the Constitution of Kenya, 2010 is often vague, ambiguous and seemingly contradictory, the text cannot provide a self- evident and fixed meaning to those who read it. Instead, it requires interpretation, and to do so it seems necessary to invoke sources of understanding and value external to the text and other legal materials. Indeed it is an accepted truism that constitutional provisions are infamous for being phrased in general terms, thus making it necessary for constitutional adjudicators to specify the meaning of the provision in the context of the actual case. In an attempt to solve the dilemma posed by the open-ended and often vague nature of constitutional provisions, the judges of the Supreme Court have turned to Kenya’s history to aid constitutional adjudication and use history as a ‘super context’ – a universally accepted, meaning-giving story about the origins and purposes of the Constitution.

This is evident in the Separate Opinion of Emeritus Chief Justice Willy Mutunga in In Re the Speaker of the Senate & Another v Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013 at para. 157 where he states thus: “In my opinion [section 3 of the Supreme Court Act] grants the Supreme Court a near-limitless, and substantially-elastic interpretive power. It allows the Court to explore interpretive space in the country’s history and memory that, in my view, goes beyond the minds of the framers whose product, and appreciation of the history and circumstance of the people of Kenya, may have been constrained by the politics of the moment.” Mutunga makes the same point in Judges and Magistrates Vetting Board & 2 Others v The Center for Human Rights and Democracy & 11 Others, Petition No. 13A at para. 206 thus: “the Constitution should be interpreted in a holistic manner; that the country’s history has to be taken into consideration; and that a stereotyped recourse to the interpretive rules of the common law, statutes or foreign cases can subvert requisite approaches to the interpretation of the Constitution.”

This is recognition that a Constitution contains an ideology, historicity, political characteristics as well as basic norms, which we have to take into account in constitutional interpretation. The point being made is that constitutional interpretation must be understood as involving historical interpretation, as well as textual exegesis, in that the meaning of a constitutional text depends on the context to which it is to be applied. It is not that texts are unimportant. Everyone would agree that texts can constrain plausible interpretation. Words, if they are to retain any useful social purpose, cannot mean just anything we say. But how they constrain depends, intrinsically, on how their meanings are construed in practical circumstances.

This was the same stand point by Justice Njoki Ndung’u in Raila Odinga & Another –v- IEBC and Others, Presidential Election Petition No. 1 of 2017 where she extols the virtues of history in constitutional interpretation thus: “History is a great revealer of intent. Events inspire laws and public processes and at the heart of these laws and processes are shortcomings to be remedied, crises to be averted, needs to be met, and a nation to be efficiently and effectively governed.” This dicta has echoes of Livio Paladin’s, one of the most important scholars of Italian Constitutional law and a former President of the Italian Constitutional Court, famous quote that, ― “he who knows not from where he is coming, can even less imagine where he is going”. The point being that we need to use history as an Archimedean point from which to leverage the present. It is precisely for this reason that, James Bryce in ‘The Action of Centripetal and Centrifugal Forces on Political Constitutions’, said that ― “the constitutional lawyer … must always, if he is to comprehend his subject and treat it fruitfully, be a historian as well as a lawyer. His legal institutions and formulae do not belong to a sphere of abstract theory but to a concrete world of fact. Their soundness is not merely a logical but also a practical soundness, that is to say, institutions and rules must represent and be suited to the particular phenomena they have to deal with in a particular country. It is through history that these phenomena are known. History explains how they have come to be what they are. History shows whether they are the result of tendencies still increasing or of tendencies already beginning to decline”.

A similar point is made by the Supreme Court In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion, Reference No. 1 of 2012 at para. 26 where the judges state thus: “….a holistic interpretation of the Constitution…must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.”

The majority of the Supreme Court in Re National Land Commission, Advisory Opinion No. 2 of 2014 further pushed this point thus: “The Courts have consistently affirmed that a holistic interpretation of the Constitution calls for investigation of the historical, economic, social, cultural and political background of the provision in question…… The Constitution is to be interpreted in a holistic manner that entails reading it alongside other provisions, and considering the historical perspective, purpose, and intent of the provisions in question.

Lastly, in Republic v Karisa Chengo & 2 Others, Petition 5 of 2015 the Supreme Court observed as follows: “Constitutions are, in general, the product of economic, political, social and even religious compromises as a result of long-drawn out claims and petitions.  The ultimate object always being sought, is the durable accommodation of all the people in the land hence the fact that the language, phraseology, content and spirit of any Constitution, are rooted in a historical context. Thus in constitutional interpretation, as this Court signalled in In Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Application No. 2 of 2011; [2011] eKLR, regard is to be paid to the legal, linguistic and philosophical context, the history, usage as well as the purpose of a particular constitutional provision, or of a right being claimed.” Thus, constitutional interpretation has both backward- and forward-looking elements. It looks backward in that it necessarily involves historical interpretation to construe the force of constitutional texts (whether they are thought to enhance or limit governmental authority). It looks forward in considering the effects of proposed laws on the functioning of our political system and public life. The backward-looking element is sometimes considered the province of justification and legality, whereas the forward-looking aspect is seen as the domain of the practical and useful.

The judges of the Supreme Court of Kenya are actually not charting a new unknown path. Since the publication in the nineteenth century of the influential writings of Friedrich von Savigny and Henry Maine it has always been recognised that law evolves over time in connection with surrounding social, cultural, economic, political, and technological influences. Law at any moment in any place is the cumulative product of the history of its society (including interaction with external influences). Thus the Supreme Court of Kenya by resorting to history to aid in constitutional interpretation is following a path that has been recognised since the emergence of modern jurisprudence.

However, the use of historical narratives in legal interpretation is laden with controversy. In his famous 1982 article, ‘Nomos and Narrative, Robert Cover pointed out that “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution, there is an epic. a legal tradition is hence part and parcel of a complex normative world.” Narratives, however, are never singular. Cover recognised the inevitable pluralism of “meanings” that circulate around legal and constitutional texts, as well as the pluralism of the “narratives” within which those texts come to be located. Cover notes thus: “Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related. The one is the power, through an articulate search for principle, to interpret history. The other is the power, through the disposition of cases, to make it…  I must remind you, however, that a great many Americans tend to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports.”

In other words, legal claims before a Court (and this is especially true of constitutional claims) often rely upon non-legal arguments for support, including arguments from history, from economics, from sociology and anthropology, from science – (An example would be the so-called Brandeis Briefs, named after Louis Brandeis -judge of the U.S. Supreme Court between 1916 and1939- who argued as an attorney in the case Muller v. Oregon 208 U.S. 412 (1908) by delivering a detailed sociological presentation of the social effects of long working hours on women). These claims are challenged, and the Court’s task then becomes to adjudicate between them, and to provide official, authoritative sanction (enforceable by violence and coercion, if disobeyed) to one set of claims at the expense of the other. This is what Cover means when he says that the Supreme Court has the power not only to interpret history, but to make it.

A fascinating example of how a Court “makes” history is found in an essay by the Italian oral historian, Alessandro Portelli, called ‘The Oral Shape of the Law’ (part of a book of essays called ‘The Death of Luigi Trastulli and Other Stories: Form and Meaning in Oral History’). In this essay, Portelli describes the “April 7 Case”, an Italian terror trial arising out of (but not limited to) the kidnapping and murder of the former Prime Minister, Aldo Moro, an act that was carried out by the Far-Left “Red Brigades”. However, the trial expanded to covering a gamut of charges of sabotage, conspiracy and insurrection against political and intellectual leaders of the Far-Left, which left– “the judiciary [with the task of] the reconstruction of fragments of this history (of the New Left), especially of those which eventuated in terrorism.” Consequently, Portelli observes that: “The magistrates were… involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history – oral history specifically – given the nature of most sources used.”

The framing, Portelli went on to point out, was done in terms of a “criminal conspiracy”, through an informal network of relationships within the broader terrorist “Organisation”. This meant – Portelli noted – that “terrorism… is then described… as a conspiracy, rather than a social movement… mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaders whose influence on the working class was never more than marginal anyway.” In other words, the Court took an event (“political terrorism”), and attributed its occurrence to one set of historical causes (individual conspiratorial acts) while rejecting another (social causes). The Court interpreted history. But it also made history because, as Portelli pointed out at the end of his essay: “Historical truth is hardly ever more than a descriptive hypothesis; legal truth, on the other hand, has a performative nature, measured in years in jail. Also, legal truth has a tendency to become historical truth, in the sense that future historians will rely on the court sentence and trial records for their reconstruction of the political history of the 1970s.” 

This power of the court to interpret history and indeed to “make history” is often fraught with problems as the following case in a controversy involving the Supreme Court of Kenya and Royal Media Services shows.

Supreme Court of Kenya versus Royal Media Services

The historical veracity of a paragraph of the judgment by the Supreme Court of Kenya in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others, Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated) has been challenged by Royal Media Services Limited. The paragraph reads:

[151] The licensing of Citizen Radio and Television appeared to be conditional upon political cooperation between its owners and the ruling political party, KANU. When it was not forthcoming or assured, the operator was switched off the air and their equipment vandalized. This sort of State interference with the media also occurred in 2005 when State agents raided the Standard Media Group, which was then also operating the KTN TV station, set the newspapers on fire and disrupted program transmission on TV.”

Following the judgment, Royal media services has disputed this version of events. The media house issued a press statement noting that “RMS was greatly aggrieved by the fact that it was wrongly depicted by Court as a corrupt enterprise, whereas it champions constitutionalism, rule of law, democracy, transparency and integrity in the management of public affairs.”
See: http://www.standardmedia.co.ke/article/2000136772/royal-media-licences-are-authentic-says-macharia

The Supreme Court had to issue a Press Statement pointing out that it will not be drawn to discussing the merit or otherwise of the press statement by Royal Media Services. See: http://www.judiciary.go.ke/portal/press-statement-petition-no-14-of-2014-communications-commission-of-kenya-5-others-v.-royal-media-services-5-others.html

The counter-narratives of history by the Supreme Court and the Royal Media Services brings to fore the problems posed by the quest for historical “truth”. The search for historical “truth” is illusive if not impossible. Prima facie, historical narratives look like the ultimate tools of taming indeterminacy in constitutional interpretation. Careful analysis, however, reveals that historical narratives are interpretive and normative, and depend not on objective foundations but on the discretion of the interpreter. It is important to remember that there is no one story of the nation, but a multiplicity of narratives, weaving continuities between past and present.

Similarly, Jean Francois Lyotard in ‘The Post-Modern Condition: A Report on Knowledge’ points out that it is inevitable that everyone in the society will have their own perspective and story and thus not everyone will agree with a particular “grand narrative” of history. According to this view, history is nothing more than a very specific, contextually situated, version of the past. The past is made up of an infinite number of events- of which only a fraction can ever be captured in any particular version of history. The 40 million inhabitants of Kenya, for example, take part in and experience an array of events every day of their lives. Clearly, this indeterminable number of experiences can never be accurately reflected in any one version of history.

History is therefore always a construction made in the present by people living in the present about a selected number of events that took place in the past. But even these events and situations that are recaptured in the name of history cannot recover the past -all that can be recovered are specific, contextually situated, accounts of certain events and situations. In other words, a particular version of history is nothing more than an interpretation by a specific person with a specific point of view at a specific historical juncture of selected past events. History is thus a discourse about the past, but it is decidedly different from that past. No matter how widely accepted and verifiable, history remains inevitably a personal construct, a manifestation of the narrator of that history’s perspective. This analysis suggests that, instead of providing objective, external, and neutral points of reference, historical inquiries provide a “history for today.” A keen eye might find that arguments from the history and traditions of the polity are normative claims, implying value judgments.

If one sees history in this way, one has to conclude that the use of history for any purpose is potentially problematic. The ways in which history is collected, recorded, documented, stored, recollected, recalled and remembered all impact on the role, influence and power of history. As Michel Foucault has argued in ‘Nietzsche, Genealogy, History’ and ‘Discipline and Punish: The Birth of the Prison’, because of power relations (or, to simplify, ideology or politics) some voices from the past are silenced, marginalised or systematically excluded in historians’ accounts of the past, while others are amplified and given pride of place.

Elaborating on the theme of falsification of history and its implication for the constitution building process in Kenya, Zein Abubakar in ‘Memory, Identity and Pluralism in Kenya’s Constitution Building Process’ notes thus: “The challenge now is to deconstruct the old constitutional regime and bring into effect the 2010 constitution… The deconstructing of the past requires coming to terms with the colonial past, the single party excesses including dictatorship, gross human rights abuses, corruption, falsification of history, and so on. Deconstructing the past requires understanding the colonial state and post-independence dictatorship and dismantling these experiences brick by brick. It involves the fundamental alteration of their philosophy, architecture and design.”

The point being canvassed in this commentary is that when we do history we have to choose a position and thus we have to select a version of the past and a way of appropriating it that has certain material effects. That choice will inevitably align with some reading(s) of the past (and the present) and against others. As Keith Jenkins explains in ‘Re-Thinking History’, “those who claim to know what history is … have always already carried out an act of interpretation”. Similarly, Hayden White has duly observed in ‘Metahistory: The Historical Imagination in Nineteenth-Century Europe, that historical explanations are based on meta-historical presuppositions, such as moral or value arguments. As Hayden White reveals, there is no such thing as objective history; instead, there is a plurality of legitimate views but no exclusive objectivity. This theory of historical narratives corresponds with the Heideggerian concept of human understanding (See Martin Heidegger, ‘Being and Time’), to the extent that “interpretation is never a presuppositionless apprehending of something presented to us… One likes to appeal to what ‘stands there’…[but] what ‘stands there’ in the first instance is nothing other than the obvious undiscussed assumption…of the person who does the interpreting…”.

An important point follows from this: history is inevitably a product of the present and reflects our understanding of the present. The past is always being created in light of the present. We are, to some degree, prisoners of the present and can therefore never claim to create history from a neutral perspective. All sides in a story have their versions of the past to legitimate their practices- versions that might either be included in the dominant discourse or excluded as improper. The discourse of history is therefore profoundly contested. History is politics; it is a “field of force”, or as Keith Jenkins puts it: “a series of ways of organising the past by and for interested parties which always comes from somewhere and for some purpose and which, in their direction, would like to carry you with them. This field of force excludes and includes, marginalizes views of the past in ways and in degrees that refract the powers of those forwarding them. If we use the term discourse we acknowledge that history is never itself, is never said or read (articulated, expressed, discoursed) innocently, but that it is always for someone. And knowing this empowers the knower and this is a good thing.”

To work with history requires, as argued by Jacques Derrida in ‘Archive Fever: A Freudian Impression’, that one should strive to read history from a position of critical intelligence, aware that any reading is already a choice that excludes and includes-even when one might not realise it. Such a sensitive reading of the past will compel one to ask how many other “people(s), classes, have been/are omitted from histories and why; and what might be the consequences if such omitted ‘groups’ were central to historical accounts and the now central groups were marginalized.” This view that history can be used or archived in a biased manner is also acknowledged by Gideon S. Were in ‘The Relevance of History in National Development: Some Hints to African States on Developmental Strategies’ thus: “In all such situations, there can be little doubt that the leaders regard and try to use history as a powerful tool for national reconstruction and unity, territorial integration and re-dedication. But in doing so, vested interests on the part of some leaders cannot be ruled out.”

The attempt to deploy history as context in constitutional interpretation is therefore fraught with risks given the view that history is a profoundly subjective account of selected events in the past. In this regard, Andre van der Walt points out in ‘Legal History, Legal Culture and Transformation in a Constitutional Democracy’ that history is just as much about the present and the past, and it reflects choices about who and what must be included and who and what excluded. This is endorsed by Justice Edwin Cameron in the path –breaking judgment by South Africa’s Constitutional Court in Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13 thus:

neither of my colleagues’ historical accounts may be taken – could expect to be taken – as other than partial and incomplete reflections of our country’s fractured past.  They are neither impartial nor complete.  Yet our country’s history is omnipresent when one applies the Constitution and the reparative legislation that flowed from it.  That history is not always directly functional to the determination of the case. Yet it often cries out for voice. And yet I feel hesitation, too, because it is not within the primary competence of judges to write history. ……… And it invites an obvious caution, not only judicially, for what we have yet to decide, but more generally, about the perils of writing history.  Indeed, the Court’s very power to influence what the application calls our country’s “collective historical narrative” suggests a diffident approach, and a light footfall.”

This opinion by Justice Cameron rhymes with that famous quote by the novelist John Berger that: “Never again will a single story be told as though it’s the only one” in the Novel titled “G” – a 1972 novel set in pre-First World War Europe.

The argument being canvassed is not that judges in Kenya should not deploy history when they are called upon to interpret the Constitution. It is true that the Constitution of Kenya, 2010 is inspired by Kenya’s history, contains several references to Kenya’s history, and is therefore historically self-conscious. Unlike traditional liberal constitutions which are said to authorise, regulate and check the exercise of public power, but supposedly allow voters and politicians to decide in which direction a society will move and at what pace that movement will occur, the 2010 Constitution contains a commitment to creating a society that would look fundamentally different from the one that existed at the time when the Constitution was being drafted. When interpreting the text of the Constitution it is therefore necessary to look both backward and forward. There is a need to look backwards at the history of Kenya and to ask what negative aspects of our past this document aims to address and to transform, to what extent the transformation is required and at what pace. At the same time, the document also signals tentativeness, suggesting that it is a permanent work-in-progress, always looking forward, always subject to revision and improvement to try to achieve the society envisaged by the Constitution.

However, it must be acknowledged that although the ‘super context’ provided by the Court might at present be widely accepted as “true” or “correct”, because it forms part of the dominant discourse produced by existing power relations in society, this acceptance is not inevitable or fixed, and the Court’s sanctioning of this ‘super context’ thus constitutes a political choice. As Pierre de Vos notes in ‘A Bridge Too Far?: History as Context in the Interpretation of the South African Constitution’, by choosing a particular version of history, by making choices of whom/what to include and whom/what to exclude, judges are therefore indeed making deep political choices. And in so doing, they are assisting in the construction and maintenance of what it is legitimate to think of as Kenya’s history: of whom/what must be included or excluded.

Stated differently, we require a practice of legal history that aspires to what Robert Gordon in ‘Critical Legal Histories’ has described as “critical legal histories”. Gordon pointed out that history was usually, “by notorious custom”, employed conservatively by lawyers to maintain the status quo with an appeal to continuity and tradition, but that critical legal scholars nevertheless paid serious critical attention to legal history in their attempt to explore and expound the radical and critical potential of historical work. The point of critical legal history is, so Gordon argued, to criticise and erode the dominant vision by exploring and analysing aspects of it in order to show that we are not “permanently stuck with what we happen to be used to, with just the tiniest margins for maneuvering”.

In sum, we need to engage with the textured detail of Kenya’s history, not just sweeping generalisations or sanitising and glorifying certain narratives that enable and encourage reinvention and mis-memory. It is then that historical context can contribute to the 2010 Constitution’s call for Kenyans to imagine the future in ways that avoid the repetition of the past and its exigencies. Nuanced understanding of what went before will allow Kenyans to resist the paralysis which anti-constitutionalists want to induce with their misreading of the past. Careful, subtle reading of the historical record is the call of the post-2010 dispensation. To put it differently, according to Walter Benjamin in ‘Theses on the Philosophy of History’, we need to excavate and read the past “against the grain” and according to the “tradition of the oppressed”.

Conclusion

To conclude, the Supreme Court’s use of the ‘super context’ of Kenya’s history can be argued to be an attempt to replace (outdated) fictions about legal interpretation, fictions such as that the interpretation of a legal text should seek to establish the ‘intention of the legislature’, with a new fiction that the meaning of a legal text should be discovered with reference to the historical context in which it is read. The historical approach is one of the non-positivist approaches to law that is demanded by transformative adjudication. It should be recalled that legal positivists often claim that there is no necessary connection between law and morals, and that the analysis of legal concepts is worth pursuing distinct from sociological and historical inquiries and critical evaluation. The Historical approach and critical evaluation are to be seen as part of efforts to find the rationale of the law after the authoritarian pre-2010 era and ‘the fiasco of legal positivism’ of that dispensation, this gives rise to the need of a substantive grounding of juridical reasoning in the transformative dispensation. The historical inquiry also replaces the formalistic reliance on ‘literal interpretation’-dictionary meaning- of constitutional texts that prevails in Kenya for a more substance engagement with the values of the Constitution and should be encouraged though with caution as canvassed in this commentary. In other words, the task of history in legal interpretation in a time of transformation is to open up and re-evaluate the relation of dependence between legal culture and the social structures within which the law functions.