NAME – OJANGO AGNES ANDESO

INSTITUTION – CATHOLIC UNIVERSITY OF

EASTERN AFRICA

REGISTRATION NUMBER - 1017968

FACULTY – LAW

UNIT NAME – CONSTITUTIONAL LAW TWO

UNIT CODE – CLS 107

INSTRUCTOR – MR. CHARLES B G OUMA

DATE DUE – 11TH MARCH 2011

QUESTION – Meaning of Consultation in light of the

National Accord and Reconciliation Act of

2008
INTRODUCTION

The meaning of consultation in the ordinary sense of the word is the action of taking counsel
together, deliberation and conference. It is also defined as a meeting of persons to discuss,
decide or plan something; a conference at which advice is given or there is exchange of
opinions on a subject matter in question.

However the above meanings are not adopted when consultation is defined in the context of
the National Accord.

The National Accord and Reconciliation Act of 2008 came about because the two disputing
parties realised that for the country to take progressive steps they needed to govern together.
From the foregoing, consultation is the evidence of real power sharing, commitment to
govern together and “concurrence in the writings of both party leaders on a decision to
remove any minister nominated by a parliamentary party”1 When this requirement is
interpreted to mean anything short of full consultation, and the interpretation is acted upon by
either party leader in the grand coalition, it leads to disagreements between them and
consequently a contravention of the provisions of the constitution depending on the matter in
question. Just to expound, let us refer to the public outcry that resulted after the president
made individual nominations to the following offices; Chief Justice, Director of Public
Prosecutions, Attorney General and Controller of Budget. The prime minister by publicly
saying that he was not consulted is evidence that his colleague had misinterpreted the
National Accord and Reconciliation Act of 2008 with regards to consultation which requires
the party leaders to reach a consensus about the matter under deliberation. Consequently this
caused a disagreement between them. In addition the prime minister shows that the president
contravened a provision of the constitution that states that any power conferred on an
individual that should be exercised after consultation with another person should not be
exercised without consulting that person2 In addition for the president to appoint the Chief
Justice without prior vetting and interview by the Judicial Service Commission was a
contravention of Article 172 of the 2010 constitution which provides that the function of the
Judicial Service Commission inter alia is to recommend to the president persons for
appointment as judges3 In addition to these nominations being unconstitutional they are not

1
Article 4 Clause 5 of the National Accord and Reconciliation Act of 2008.
2
Article 259 Clause 11 of the new Constitution of Kenya
3
Article 172 Clause 1(a) in the new Constitution of Kenya.
giving due regard to the spirit of the constitution 4 in respect to equality and freedom from
discrimination5 since all the four nominees are men. More to that it is evident that the values
and principles stated in Article 10 of the new constitution were not regarded in these
nominations. The unconstitutionality of these nominations comes out also with regards to
Article 2 of the constitution which provides that the constitution is the supreme law of the
republic6 and that any act or omission in contravention of this constitution is invalid7 ; this
therefore declares the nominations made by the president invalid. The unconstitutionality of
these nominations are brought out also by a provision of the constitution that states that, “the
national values and principles of governance bind all state officers whenever any of them
interprets any law8 Moreover, the president in nominating the Chief Justice contravened other
provisions of the constitution which state that the nominations are to done subject to the
recommendations made by the Judicial Service Commission9 and that the nomination of the
Chief Justice by the president shall be subject to the National Accord and Reconciliation Act
of 2008 and after consultation with the prime minister10 The nomination of individuals by the
president to the other office holders is also unconstitutional in that the president did not
consult with the primes minister while knowing very well that it was a mandatory since the
first elections under this constitution have not been conducted11 From the press statement
made by the president he says that he acted on his constitutional mandate. This claim could
be supported by a provision of the old constitution of Kenya that states that the powers of
making appointments to offices of the republic of Kenya is vested in the president 12 In total
contrast a provision of the new constitution which was promulgated into law by the president
himself states that the president shall respect, uphold and safeguard this new constitution13

4
Article 20 Clause 4 in the new Constitution of Kenya
5
Article 27 Clause 3 of the new Constitution of Kenya
6
Article 2 Clause 1 in the new Constitution of Kenya
7
Article 2 Clause 4 in the new Constitution of Kenya
8
Article 10 Clause 1(b) in the new Constitution of Kenya
9
Article 166 Clause 1 (a) in the new Constitution of Kenya
10
Article 24 Clause 2 of the SIXTH SCHEDULE in the new Constitution of Kenya
11
Article 29 Clause 2 of the SIXTH SCHEDULE in the new Constitution of Kenya
12
Section 24 of the Old Constitution of Kenya.
13
Article 131 Clause 2 (a) of the New Constitution of Kenya
From the foregoing one can generally comment that these individual nominations were
evidence of misinterpretation of a provision of the constitution on its interpretation which
states that this constitution should be interpreted in a manner that advances rule of law and
fundamental Bill of rights14

Ramaphosa has this to say regarding rules of constitutional interpretation . . . . .

With that in mind many contentions in court would have been avoided among them the
following. Different authorities have also had a chance to mention something with regards to
constitutional interpretation among them; Tinyefuza v Attorney General15 whereby the
court in Uganda held that the entire constitution had to be read as an integrated whole and no
one particular provision destroying the other but sustaining the other. On top of that all
provisions touching on a particular and similar subject are to be read and interpreted together
so as to make effective the great purpose of the constitution 16 Yet another authority adds that
the constitution must be interpreted in line with the noble lofty purpose for which its makers
framed it17 In another contention the Supreme Court of the United States ruled that a section
of a Judiciary Act was unconstitutional as it allowed the courts to interpret what the
constitution did not permit.18 Another authority in South Africa emphasized that a section of
the constitution should be construed in its context which includes history and background to
the adoption of the constitution and other provisions of the constitution itself.19 Justice
Ibrahim interpreted Article 49 of the new constitution of Kenya together with Article 2
Clause 5 and granted bail to the accused even though the provisions of Section 123 of the
Criminal Procedure Code denied bail to persons accused of murder. 20 In yet another ruling a
bench of three judges of the court had to refer to the constitution which involves interpreting
the provision pertinent to the matter under decision even though it was a criminal proceeding
that was taking place in order to grant the plaintiff his prayer to resist the bid of one of the co-

14
Article 259 Clause 1 (b)
15
Constitutional Appeal No 1 of 1997
16
Ruling of the Supreme Court in Smith Dakota v North Carolina 192 U.S 268
(1940)
17
Ruling of Ndynabo v Attorney General (2001) 2 E.A 485
18
William Marbury v James Madison 5 U.S (1 Cranch) 137 (1803)
19
The State v Makwanyane Case No. CCT/3/94
20
Republic v Danson Mgunya & another (2010) eKLR
defendants to enter a nolle presequi21 As that is not enough another authority stated that the
Constitution is not to be interpreted in the same manner as an Act of parliament. It is to be
construed liberally to give effect to the values it embodies and the purpose for which its
makers framed it22 Furthermore an Act of parliament cannot be interpreted in isolation to the
constitutional provision touching on the same subject matter as that Act23 In another ruling,
the judge in his conclusion pointed out that he had considered the interests of a functioning
judicial process in line with the dispute-resolution mandate derived from the constitution. 24 In
yet another ruling the judge stated that the power of judicial review is subject to how
constitutionally appropriate the substance is.25

To conclude, when one is interpreting any statute or a provision of the constitution they
should do so for only what it provides, thus there will be no excuse for squeezing decisions
out of any statute or a provision. A provision of the constitution should not be interpreted as
an Act of parliament; that is in isolation from any other provisions touching on the same
subject matter as that provision.

21
Crispus Karanja Njogu v Attorney General & another (2008) eKLR
22
Njoya & 6 others v Attorney General & 3 others (2008) 2KLR
23
Mary Ariviza v Interim Independent Electoral Commision of Kenya & another
(2010) eKLR
24
Law Society of Kenya v Attorney General (2008) eKLR
25
Jesse Kamau & 25 others v Attorney General (2010) eKLR