JUDICIAL APPROACHES TO CONSTITUTIONAL INTERPRETATION IN KENYA

Abstract

Constitutional interpretation entails the assigning of meanings to words contained within the constitution with the intention of facilitating legal decisions that are justified by it. There are various mechanisms that courts utilize in interpreting a legal text. Examples of the mechanisms include doctrinal, functional, historical, prudential, textual, equitable and natural.  The doctrinal method is founded on the existing practices or the opinions of legal professionals which are mainly executive, legislative, and judicial precedents that are based on the doctrine of stare decisis. The functional method analyses the structures of the constitution of law and their intended functioning as a coherent, harmonious system. The historical method relies on an exploratory analysis of the drafting and promulgation of the law. The prudential method considers factors such as efficiency of the governmental operations, the convenience of the overburdened officials, response to political pressure, and the avoidance of the stimulation of more cases. The textual method works on the premise that since law is a command, it ought to mean what it meant to the lawgiver, and if the meaning of the words used in it have been altered, then textual examination and analysis ought to be in accordance with the lawgiver’s intentions. The equitable or ethical method relies on the innate sense of justice, what is regarded as right or wrong, and balancing the interests of the parties, regardless what the written law may provide. The natural method is founded on the laws of nature’s requisition or advise, human nature, possibilities within the physical and economic realms, or on what is likely to occur.