Linda Brown was a young girl living in Topecka, United States. She used to attend a “black only” school in the area. However, she had to take a bus ride for five miles to school and back. Just four hours blocks from home was a public school that had space for students. She met all the entry requirements, but for one: She was black and the school was a “whites only” institution.
Linda’s parents consulted the National Association for the Advancement of Colored People (NAACP) on the local schools’ racial segregation. NAACP took up her case and that of 13 other parents and filed a lawsuit against the Board of Education in Topecka. The case went all the way to the Supreme Court, and was decided on May 17, 1954.
In the 1950’s America, racial segregation was a way of life. Although the Constitution had been amended to outlaw slavery, people of African descent were generally considered different and often inferior. The US Supreme Court had allowed this popular view.
In the late 1800, the court made a decision in a case called Dred Scott vs Sanford stating that negroes were not American citizens and had no right to sue in federal courts. During the same period, the Supreme Court had made another decision in Plessy vs Ferguson – that racial segregation was not unconstitutional. With a majority of eight to one, the court ruled that laws requiring racial segregation did not imply the inferiority of any race.
Supreme Court made an earth-shaking decision
But in Linda Brown’s case, the Supreme Court made an earth-shaking decision. It stated, by a unanimous vote, that the segregation of white and negro children in public schools solely on the basis of race was unconstitutional. The court was headed by Chief Justice Earl Warren. A former politician who served as a prosecutor and state governor for many years. Warren read the judgment to the absolute astonishment of many Americans.
The judgment was denounced as a “clear abuse of judicial power”. The Chief Justice was castigated and “Impeach Earl Warren” bumper stickers went on display. Politicians publicly said that Warren should be hanged. Alabama Governor George Wallace dismissed him saying he “doesn’t have enough brains to try a chicken thief in my home county”. The ruling was enforced only when President Dwight Eisenhower sent the National Guard troops to protect the black children who had enrolled in white schools.
Today, Brown vs Board of Education is the most celebrated judgment ever pronounced by the US Supreme Court.
Court judgments that have a profound effect on the nation often elicit strong reactions. That of the constitutional court in the Rev Timothy Njoya & others vs the Hon Attorney-General & others is no different. MP Mutula Kilonzo dismissed it as a “stab in the back of Kenyans right into the spine”.
This response is called ENO reaction
Hon Joe Khamis termed it as suspect, saying that the three judges had been singing the same hymn as Justice minister Kiraitu Murungi. Hon Otieno Kajwang’ dismissed it as a “fraudulent, illegitimate and unconstitutional”, and called for a tribunal to investigate Mr. Justice Ringera for rewarding Mr. Murungi for appointing him the anti-corruption commission boss.
This type of reaction is known as an “ENO reaction”, named after the reactive stomach salts common for stomach upsets. It is instantaneous, effervescent and always quiescent thereafter. It is a banal response to a legal opinion that should evoke more though-out criticism, considering the intellectual character of those opinions.
The constitutional court was faced with two legal arguments – one for a limitation of parliamentary powers to amend constitution and another for non-interference by the court. Equally, the court was faced with two conflicting legal authorities – one from India and the other from Singapore.
None of the legal authorities was binding on the court. A Kenyan court does not have to follow what is said by a foreign court. It is only bound by a decision of a court in Kenya that is superior to it. The constitutional court was therefore free to follow either the Indian case or the Singapore one.
The issue before the Kenyan constitutional court had never been decided by any other court in the world in as far as the court could determine. Further, in both India and Singapore, the issue in question was a provision of the constitution, not the entire document. This meant that the court had no direct legal opinion to follow. It had to analyse the little before it.
In his judgment, Mr. Justice Ringera said he preferred the legal opinion of the Supreme Court of India to that of Singapore. Firstly, this was because the decision in Singapore was from a High Court while that in India was from the highest court there. In legal tradition, the higher the court, the more authoritative the decision.
Secondly, while the Indian decision (known as the Kessevananda decision, after the case in which the decision was reached – Kessevananda vs Satet of Kerala) had been arrived at after a vote of nine out of thirteen Supreme Court judges, the decision had been upheld by the same court unanimously eight years later in Minerva Mills Ltd vs Union of India.
As far as India was concerned, the Kessevananda decision was the undisputed law there.
Mr. Justice Ringera also considered the definition of the word “alter” as laid out in the authoritative dictionary of legal terms Black’s Law Dictionary. It says that “alter” means to change “without substituting an entirely new thing or destroying the identity of the thing affected”. On this basis, he felt he had no basis to reach any other decision.
Mr. Justice Kubo, however, disagreed. He found that the definition in the dictionary was “giving somewhat conflicting signals as to what the term ‘alteration’ means”. He then considered the Kessevananda decision and, though he found that the constitutional provision in India was the same as the one in Kenya, he refused to follow the majority of the Supreme Court judges in India.
Instead, he relied on the judgment of only Mr. Justice Ray who had dissented in the Kessevananda case. He made no mention of the subsequent unanimous decision in Minerva Mills Ltd vs Union of India, which had in effect made Mr. Justice Ray’s holding irrelevant.
Whether one agrees with Mr. Justice Ringera’s reasoning or not, he cannot be faulted in the way he arrived at his decision. He considered each opinion and clearly stated why he supported one instead of the other. He clearly shows the legal foundations of his decision and why he thinks the foundation is more sound than the alternative.
It is Mr. Justice Kubo’s judgment that does not tie the loose ends. Whether one agreed with him or not, it is not clear why he elevates a High Court ruling in Singapore and a minority opinion in India above two decisions of the Supreme Court of India, one of them unanimous.
Though he said the legal definition sent conflicting signals, he did not say which particular definition should be followed, nor did he in the alternative give a judicial interpretation himself as he is clearly allowed by law. But he still continues to find words of Section 47 “adequately clear” dispute the ambiguity he finds in the existing definitions.
Justice Kasogo agreed with the judge’s ruling
To elevate Mr. Justice Kubo’s decision above that of Mr. Justice Ringera, Mr. Kajwang went into a personal attack and explained the decision from the basis that Mr. Justice Ringera and Mr. Murungi were once partners in a law firm. He also alleged that Mr. Kibe Mungai, the applicant’s advocate, was a junior partner there together with Mr. Kathuruma M’noti, the current chairman of the Law Reform Commission, and Dr. Kamau Kuria.
Had he first evaluated the decision as a lawyer, he possibly could have been entitled to cap his intellectual dismissal of the reasoning with his supposedly telling set of historical facts. But by beginning with the facts as the foundation of his criticism it shows he had no other way to discredit the ruling.
But, that notwithstanding, Lady Justice Kasango also agreed with Mr. Justice Ringera. No mention is made by the critics about her holding possibly because it makes a fallacy of their arguments. She was not Mr. Murungi’s law partner and came to the bench with an impeccable character as a lawyer. To not even attempt to explain her holding, even in criticism, is an insult to her and her judicial and intellectual abilities and independence.
Many years after we have put in place the new Constitution, the Ringera ruling will be the most valuable defence to the voice of the people. It is because of the decision that we shall not again have Section 2A, or the removal of tenure for constitutional offices. The ruling will protect the Constitution from the tyranny of any President or Parliament.
Had such a decision been arrived at after independence, Kenya’s constitutional history would have been very different, and we would not have needed a review process. But for now, the ruling upsets the dominoes for many a politician, and is likely not to be supported for many years.
But like the holding in Brown vs Board of Education, it will one day be celebrated as an asset.