Geoffrey Andare v Attorney General & 2 others [2016] eKLR
constitutional mandate, the judicial branch of the government has only one duty; to lay the article
of the Constitution which is invoked beside the statute which is challenged and to decide
whether the latter squares with the former. All the Court does, or can do, is to announce its
considered judgment upon the question. The only power it has, if such it may be called, is the
power of judgment. This Court neither approves nor condemns any legislative policy. Its delicate
and difficult office is to ascertain and declare whether the legislation is in accordance with, or in
contravention of, the provisions of the Constitution; and, having done that, its duty
ends.” (Emphasis added)
66. It has also been held that in determining the constitutionality of a statute, a court must be guided
by the object and purpose of the impugned statute, which object and purpose can be discerned
from the legislation itself. The Supreme Court of Canada in R vs Big M Drug Mart Ltd., [1985] 1
S.C.R. 295 enunciated this principle as follows:
“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional
purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an
object the legislature intends to achieve. This object is realized through impact produced by the
operation and application of the legislation. Purpose and effect respectively, in the sense of the
legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and
achieved effects have been looked to for guidance in assessing the legislation’s object and thus
the validity.”
67. See also the decision of the High Court in Murang’a Bar Operators and Another vs Minister
of State for Provincial Administration and Internal Security and Others Nairobi Petition No.
3 of 2011.
68. I bear in mind also the provisions of Article 2 of the Constitution, which is emphatic that the
Constitution is supreme, and any law that is inconsistent with the Constitution is void to the extent
of the inconsistency.
69. With respect to the interpretation of the Constitution, Article 259 provides the manner in which the
Constitution is to be interpreted. It requires that the Constitution should be interpreted in a
manner that promotes its purposes, values and principles, advances the rule of law, human rights
and fundamental freedoms in the Bill of Rights, and that contributes to good governance. At
Article 159(2) (e) the Constitution mandates the Court, in exercising its judicial authority, to
protect and promote the purpose and principles of the Constitution.
70. In the case of Tinyefuza vs Attorney General of Uganda, Constitutional Petition No. 1 of
1997 (1997 UGCC 3), the Court held that the provisions of the Constitution must be read as an
integrated whole, without any one particular provision destroying the other but each sustaining
the other.
71. I am also mindful of the words of the Court in the case of Ndyanabo vs Attorney General of
Tanzania [2001] EA 495 with regard to the constitutionality of a statute. In that case, the Court
observed that there is a general presumption that every Act of Parliament is constitutional, and
the burden of proving the contrary rests upon any person who alleges otherwise.
72. However, with respect to provisions of legislation that limit or are intended to limit fundamental
rights and freedoms, the Constitution itself qualifies the presumption. As was observed in the
CORD Case:
http://www.kenyalaw.org - Page 12/20