Sample Argumentative Essay Paper on Is Agnostic Liberalism Killing the Dream of a Transformative Constitution in Kenya?

Abstract
The promulgation of the 2010 Constitution of Kenya brightened the hearts of many
Kenyans. Finally, amidst all the chaos, suffering and disappointment that Kenyan’s were
experiencing, there had emerged a ray of hope for the common man. Today, the bright
glimmering light of the Constitution continues to be obstructed by a thick medium of
antiquated, obtuse legal reasoning. The brilliant beam of its aspirations has been
intercepted and put out before reaching the Kenyan people. What has led to the
miscarriage of the fruits that the 2010 Constitution promised to bear? This paper aims
to elucidate and explicate on the existing legal and judicial attitude, that has stifled the
spark of the 2010 Constitution, and dimmed the hope in the hearts of Kenyans.
I. Interpretation and Implementation in the Existing Legal Culture
i. Introduction
It is of no doubt that the Kenyan 2010 Constitution has enjoyed overwhelming support, 67%
percent of the population voted in favour of the new Constitution. Be that as it may, the
telling feature of a constitution that is successful at positively transforming a society, lies not
in the number of people who support it, but in the implementation of its articles. 1
According to Ben Sihanya, the 2010 Constitution deservedly receives immense support due
to four key features. Firstly, it introduces a devolved system of Government which has
proved to work particularly well in countries where there are different, distinct communities
rivalling for political power. Devolution it is hoped, will work to ‘de-ethnicise’ politics and
the national government. With the result that it will foster greater national unity. 2 In addition,
decentralisation brings political power closer to the people, leaders can be held more
accountable and the people are involved in the decision-making process.
Secondly, the 2010 Constitution aims to re-structure the core institutions of the Government.
There are more checks and balances provided to limit arbitrary power by any one branch of
Government. 3 Thirdly, the 2010 Constitution makes a firm commitment towards the

1 Sihanya B, ‘Constitutional implementation in Kenya, 2010-2015: Challenges and prospects’, Friedrich Ebert
Stiftung Kenya Occasional Paper 5, 2011, 1-3.
2 Ghai Y, ‘Devolution: Restructuring the Kenyan state’, Journal of Eastern African Studies 2(2), 2008, 217.

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furtherance and advancement of the social and economic well-being of the people of Kenya.
There is also a clear dedication to an equitable re-distribution of resources. 4 Last, but not least
is the introduction of Chapter 6 of the Constitution, on leadership and integrity. 5 This chapter
ensures that leaders are checked against a very high standard code of conduct, as Kenya has
in the past suffered from corruption, and a plethora of terrible leadership and management
conditions. 6 In many ways, these are some of the key features, that in this author’s opinion,
make Kenya’s 2010 Constitution a transformative and celebrated constitution for the Kenyan
people.
This paper aims to display that although the 2010 Constitution of Kenya substantively
exhibits all the hallmarks of a transformative constitution, and in Karl Klare’s words is
‘social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural,
and self-conscious about its historical setting and transformative role and mission’ 7 , the legal
and political theoretical framework, specifically, the specific brand of liberalism practiced
and adopted by political and legal players in Kenya, is the largest hurdle towards the
realisation, implementation and practical manifestation of the transformative 2010
Constitution.
In this paper, the author will first turn to the question of what ‘habits of mind’, judicial
jurisprudence and political values have been adopted as the predominant attitude by the legal
and political fraternity in Kenya? To this question, this author hopes to propose the answer as
an ‘agnostic liberalism’ 8 and a culture that seeks to maintain and advance the law and politics
boundary. This permeates a large section of legal culture in Kenya and involves an attitude of
state ‘neutrality’ and ‘agnosticism’. In the next section we shall discuss why agnostic
liberalism is the cancer that is killing the dream of the implementation of the transformative
2010 Constitution. Finally, we shall contrast pragmatic liberalism with agnostic liberalism as
a solution to the implementation question.
ii. Contemporary conception of liberalism
3 Mbondenyi MK and Ambani JO, The new constitutional law of Kenya: Principles, government and human
rights, Claripress Limited, Nairobi, 64-65.
4 Orago NW, ‘Limitation of socio-economic rights in the 2010 Kenyan Constitution: A proposal for the adoption
of a proportionality approach in the judicial adjudication of socio-economic rights disputes’ Potchefstroom
Electronic Law Journal 16(5), 2013, 170-172.
5 Chapter 6, Constitution of Kenya (2010).
6 Sihanya B, ‘Constitutional implementation in Kenya, 2010-2015: Challenges and prospects’, 3.
7 Klare KE, ‘Legal culture and transformative constitutionalism’, South African Journal on Human Rights 14(1),
1998, 153.
8 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, University of Pittsburgh Law
Review 46(3), 1985, 674.

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The biggest failure of contemporary legal scholars, is looking too much into the question of
the legitimacy and ‘positive morality’ of law, rather than delving into the question of how the
law and legal institutions can play a role in solving societal problems and ensuring or creating
a just society. 9 Often, political and legal theorists focus on the legitimacy and origin of the
authority of law, and not on the purpose or end to which law is just a means, which is justice.
According to Robin West, in her critique of Ronald Dworkin’s conception of liberalism, she
suggests that the belief that liberalism necessarily requires an attitude of state neutrality
towards the pursuit and definition of the good life, has been widely accepted by
contemporary legal theorists as the core commitment of liberalism. 10 Karl Klare asserts that
the problem with our society today, is that a liberal reading of a constitution carries with it an
implied legal interpretation, while a ‘post-liberal’ or pragmatic reading conveys a political
interpretation. 11
Similarities reveal themselves between Klare’s and West’s approach to liberalism. Firstly,
they both agree that what Klare calls the ‘classical-liberal’ interpretation and what West
terms ‘agnostic liberalism’ have pervaded the vast majority of legal theories and practices.
Both agree, that what we will hereinafter term agnostic liberalism, is comprised of an attitude
that implies that judges should shun away from making political 12 , and thus problem solving
decisions. 13 West actually indicates that this type of political, problem solving mentality, is
endangered, and even unpopular among scholars in our current political climate. This is due
to a lack of self-belief, to tackle, and resolve societal, constitutional and political problems in
an inventive, and perceptive manner. 14
Secondly, they both agree that a radical change is needed in the definition and application of
liberalism. West argues that in our conception of equality, we must move away from the idea
that equality, implies that the state should not and cannot support certain preferences, because
doing so would grant one conception of the good life more resources, which would insinuate
that those citizens that hold a particular notion of the good life, are more dignified than those
who do not. 15 Klare puts it differently, stating that a foundational legal text or document,

9 Schweitzer K, ‘Inquiring into nature of the legal good’, American Philosophical Association 14(1), 2014, 12-
13.
10 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 673.
11 Klare KE, ‘Legal culture and transformative constitutionalism’, 152.
12 Klare KE, ‘Legal culture and transformative constitutionalism’, 157.
13 Schweitzer K, ‘Inquiring into nature of the legal good’, 12-13.
14 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 677.
15 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 678.

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cannot be neutral with regards to the apportioning of social and economic power, as well as
the provision of opportunities for individuals to realise themselves. 16
iii. The beginnings of agnostic liberalism in the early positivist tradition
Modern, contemporary scholars often begin the quest for the historical roots of legal
positivism and consequently, agnosticism in Thomas Hobbes’ work. Before Thomas Hobbes,
the traditional debate about the conception of law had been in relation to whether the law
could be said to embody reason or contain the structure of nature. 17 Comparisons were often
made between the positive human laws and the laws of nature. These two had at least a
similar characteristic in that they were dispensed and ordered by a supreme, authoritative
person or being. It is important to note that at the time Thomas Hobbes was writing, due to
different clashing ideas, understandings and standards of morality, there were rising tensions
in relation to which conception of morality was superior. 18 The world was on the verge of
civil discord as a result of these intense tensions. Therefore, Hobbes wrote the Leviathan as a
description, response and solution to the social, political and economic climate of his time.
From Hobbes, there emerged a solution that aimed at separating morality from the law in
order to establish an indifference or lack of preference between the competing strands of
moral and philosophical, thoughts and practices. Such an agnostic approach or interpretation
of law was needed in order to reduce and obviate the possibility of war and civil strife. 19 To a
large extent the power of the state increased as its moral claim decreased.
In this state of competing moral ideologies, a social contract was created, where people
accepted that morality was a personal or individual matter and should not be an affair of the
state. People would thus accept laws that did not reflect their own moral and religious values,
as long as other people were willing to do the same, thereby ensuring that none of the
conflicting moral ideologies was seen to prevail. The justification and merit of law was thus
pinned on its authority and not on its morality. This led to the conditions necessary for the
creation of a ‘commonwealth’. 20 The solution was thus, to turn the law into a tool that could
be used and appreciated for its ability to settle matters where society could not find
consensus. 21

16 Klare KE, ‘Legal culture and transformative constitutionalism’,154.
17 Coyle S, ‘Thomas Hobbes and the intellectual origins of legal positivism’, Canadian Journal of Law and
Jurisprudence 16(2), 2003, 247.
18 Coyle S, ‘Thomas Hobbes and the intellectual origins of legal positivism’, 245.
19 Coyle S, ‘Thomas Hobbes and the intellectual origins of legal positivism’, 245-6.
20 Postema GJ, ‘Legal positivism: Early foundations’, Social Science Research Network, 2011,27.
21 Gardner J, ‘Legal positivism: 5 ½ myths’, 205.

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iv. Reinforcing rather than transforming the existing legal culture: 22 A Case Study
in Socio-Economic Rights
a) Historical treatment of socio-economic rights in Kenya.
An inspection of the repealed Constitution of Kenya provides clear insight as to the place that
social and economic rights held within its articles. While civil and political rights took centre
stage, in contrast, social and economic rights were nowhere to be found 23 . Rather than
affording rights and freedoms to the Kenyan people, the repealed Constitution has been
termed as a ‘bill of exceptions.’ 24 Despite the constitutional recognition of civil and political
rights, the courts largely failed to grant even these when faced by an oppressive and pervasive
regime.
Ambani and Mbondenyi define socio-economic rights as those entitlements that every human
being expects or envisages will be granted to them at the commencement of life. 25 Social and
economic rights seem to carry a meaning that is related to the essential aspects of human day
to day life such as health, adequate housing 26 , adequate food and nourishment 27 , water 28 , and
education 29 . These facets of human living carry enormous importance in the hearts, minds,
and on the bodies of citizens. They are therefore, deeply engrained as important features of
being human. Simply put, they are inextricably intertwined with the desires of man and
cannot be detached from the aspirations of people. As such, it is to the delight of Kenyans
that these rights are now guaranteed under the 2010 Constitution.
According to Anthony Munene, the inclusion of a bill of rights in the independence
Constitution can wholly be attributed to British colonial influence. Her Majesties
Government made the adoption of a bill of rights, a precondition to the granting of
independence. Kenyan leaders at the time were preoccupied with gaining sovereignty,
acquiring political power and sharing it among Kenyans. 30 The Bill of Rights of the

22 Klare KE, ‘Legal culture and transformative constitutionalism’, 181.
23 Khakula AB, ‘Theory and practice of social and economic rights in Kenya’ Unpublished LLM thesis,
University of South Africa, Pretoria, 2015, 5.
24 Mutakha-Kangu J, ‘The theory and design of limitation of fundamental rights and freedoms’ The Law society
of Kenya Journal 4(4), 2008,1.
25 Ambani JO and Mbondenyi MK, ‘A new era in human rights promotion and protection in Kenya? An analysis
of the salient features of the 2010 Constitution’s Bill of Rights’in Mbondenyi Mk, Asaala EO, Kabau T and
Waris A, Human rights and democratic governance in Kenya: A post 2007 appraisal, Pretoria University Law
Press, 2015, 17.
26 Article43(1)(b), Constitution of Kenya (2010).
27 Article43(1)(c), Constitution of Kenya (2010).
28 Article43(1)(d), Constitution of Kenya (2010).
29 Article43(1)(f), Constitution of Kenya (2010).

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independence Constitution was therefore, a collateral consideration among many of its
Kenyan negotiators, and was by no means the primary interest in their minds. How then,
could they possibly be expected to uphold its provisions, let alone understand the importance
of the constitutional and humanistic values embodied in that document? Instead, the
Constitution was turned into a document granting the Executive arbitrary power. The fragile
principle of the rule of law was thus shattered in the face of unreserved indifferentism,
sabotage and attacks by the Executive.
Munene asserts that the independence Constitution could not have been a representation of
the will of the Kenyan people. He argues that it did not embody a set of higher values to
which the Kenyan people ascribed. In fact, Munene suggests that the attitude of Britain to the
adoption of a Bill of Rights in their own country was rather negative. Despite not having a
written bill of rights or an authoritative constitutional text, some British scholars at the time
were of the opinion that Britain had done a better job at enforcing its civil liberties, compared
to countries that purported to grant a charter document that declared the rights of their
citizens. 31 One may then ask, how it became possible that during the process of negotiation
with the retreating British colonisers, a Bill of Rights became a mandatory concession?
Clearly, the Constitution then did not reflect the will of the people, they had little chance or
opportunity to be involved in its formation, neither did they place any vital considerations on
its articles, let alone understand them or their functions.
Tanganyika on the other hand, resisted British attempts at imposing a Bill of Rights on their
territory. This was met with little opposition from the British. Economic reasons seem to
underly the lack of an independence constitution in Tanzania, and the forceful imposition of
one in Kenya. Tanganyika barely had a substantial number of white settlers as minimal
investments had been made in the country. On the other hand, the British had substantial
investments and numerous white settlers in the Kenyan highlands and the Rift valley. 32 Even
the American constitutional legend Thurgood Marshall would find himself negotiating a
constitution that largely protected the interests of white landholders and their property,
although acquired through past injustices. 33 The 1963 Constitution therefore, seems to be one

30 Munene AW, ‘The bill of rights and constitutional order: A Kenyan perspective’ African Human Rights Law
Journal 2(1), 2002, 142.
31 Munene AW, ‘The bill of rights and constitutional order: A Kenyan perspective’, 142.
32 Munene AW, ‘The bill of rights and constitutional order: A Kenyan perspective’, 143.
33 Dudziak ML, ‘Working towards democracy: Thurgood Marshall and the Constitution of Kenya’ 56 Duke Law
Journal 56(3), 2006, 721.

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that was created by the colonisers, aimed at leaving a lasting foot stamp on Kenyan soil, in on
order to preserve their economic interests.
It is for the above reasons, that an investigation of the 1963 independence constitution would
reveal that there is no single mention of the words ‘housing’ or ‘proper sanitation.’ Thus, the
1963 constitution was not really meant to positively transform the lives of Kenyans by
granting justiciable socio-economic rights and increasing their standard of living. Instead the
negative rights it granted were in fact meant to deny Africans the opportunity and means of
reacquiring the ill-gotten tracts of land and property that the white settlers were determined to
keep.
The new constitutional dispensation in Kenya can largely be categorised as transformative
and reconstructive. 34 While the 1963 Constitution lacked provisions granting socio-economic
rights, the 2010 Constitution grants an array of socio-economic rights in Article 43.
Therefore, the 2010 constitution can be described as a constitutional document that not only
contains negative rights (which are civil and political such as those in the Bill of Rights of the
1963 constitution), but also provides for positive rights. The main distinction between
positive and negative rights is lies in the fact that, while negative rights are often in relation to
the protection of citizens liberties against state or governmental interference, positive rights
oblige the state to take some form of action or provide some form of service to ensure the
justiciability of socio-economic rights, eradicate poverty, inequality and promote social
security. 35 Consequently, the right to housing and proper sanitation should not only be
protected from governmental interference, but also be guaranteed and provided for through
positive state action, that strives to afford every individual proper housing and sanitation
among other socio-economic rights.
The incorrect argument that socio-economic rights are not full rights suggests that the socio-
economic rights granted under the 2010 Kenyan Constitution can be challenged before a
court 36 , contrary to the provisions of the Constitution 37 in specific the principle of
constitutional supremacy.

34 Mwenda M, ‘The Context of Transformative Constitutionalism in Kenya’, Social Sciences Research Network,
June 30 2015-< https://ssrn.com/abstract=2624928> on 20 September 2018.
35 Orago NW, ‘Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A proposal for the
Adoption of a Proportionality Approach in the judicial adjudication of Socio-economic Rights Disputes’
Potchefstroom Electronic Law Journal 16(5), 2013, 170-171.
36 Eide A, ‘Economic and social rights’ Symonides J (ed) in Human Rights; Concepts and Standards, UNESCO
publishing, Ashgate, Dartmouth, 2000, 175-176.
37 Article 2(3), Constitution of Kenya (2010).

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According to Helen Quane there is no hierarchy that positions any human right above
another, they should be all on the same footing and treated with equal importance. 38 It
therefore follows, that the right to proper housing and sanitation, guaranteed in Article 43
(1)(b) of the 2010 Constitution, 39 should be treated as being on the same footing as the right to
life guaranteed under Article 26 (1) of the Constitution 40 . Indeed, the Constitution itself
provides that the framework for social, cultural and economic policies is to be found in the
Bill of Rights, therefore alluding to the imperative that the Constitution places on the
Government to secure these social, cultural and economic rights for the people without
compromise. 41 The right to housing and proper sanitation should thus form the fore-most
consideration in the adoption and implementation of economic policy in order to unlock and
promote the potential of every individual citizen within the state.

b) An Untransformed Judiciary
In Kenya, the attitude of the courts is well summed up in Kenya Airports Authority v Mitu-
Bell Welfare Society & 2 others (2016). Despite having a constitution that provides for
justiciable social and economic rights, the Court of Appeal in the aforementioned case made
one of the most regressive judgements in the post 2010 era. While overturning one of the
most progressive judgements made by Justice Mumbi Ngugi at the High Court. 42 The case
involved a land and settlement dispute between the Kenya Airports Authority and residents of
an informal settlement called Mitumba village. The residents had been apparently settled
there in 1992 by the Government. 43 They had since built a community, 15,000 people strong,
with institutions such as churches, educational facilities, businesses and family homes. The
appellants claimed to own the property on which the villagers had settled and issued notice
for pending demolition. 44 An interlocutory injunction was sought by the welfare society.
However, demolitions and destruction of property commenced even with the existence of the
Court order. 45

38 Quane H, ‘A further dimension to the interdependence and indivisibility of human rights? Recent
developments concerning the rights of indigenous peoples’ Harvard Human Rights Journal 25(1), 2009, 49-50.
39 Article43(1)(b), Constitution of Kenya (2010).
40 Article26(1), Constitution of Kenya (2010).
41 Article19, Constitution of Kenya (2010).
42 Miyawa OM, ‘Judicial enforcement of socio-economic rights: A case for dialogic approach in crafting
appropriate judicial remedies’ Unpublished, University of Nairobi, Nairobi, 2014, 12.
43 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
44 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
45 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.

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The decision of the Court of Appeal reveals the negative habits of mind and regressive legal
reasoning that are eating away at the dream of fully implementing and materially realising the
2010 Constitution. Justice Mumbi Ngugi at the High court had come up with a policy
oriented judgement that sought to challenge and indeed bring the Governments housing
policy up to the standard that the Constitution envisaged and anticipated in Article 43(3). 46
Her considerations on the matter seemed to indicate that she truly had the interests of society
at hand, she demonstrated that she understood the implications of her decision on other
economically discriminated individuals. The judge clearly saw the case as an opportunity for
the Court to invite a dialogue between the various stake-holders aimed at solving one the
most pertinent issues in Kenyan society, which is forced evictions. 47 All things considered,
the judgement illustrated a fearless, authoritative, historically conscious, problem solving and
progressive, revolutionary decision. This was and is the radical judicial attitude needed for
the realisation of the transformative 2010 Kenyan Constitution.
Unfortunately, however, the Court of Appeal was quick to move in to re-establish the long-
established status quo, seeking comfort in the old relationship the Judiciary has had with the
Executive and Legislature. Shying away from the risky but necessary resource-based
decisions that are imperative and crucial to slay the dragon of corruption and cut its head off
by holding the other branches accountable to the Constitution and thus, Kenyans.
The judgement of the Court of Appeal needs to be analysed, scanned and turned on several
heads in order to unveil and reveal the stubborn tumour logged at the heart of the Kenyan
Judiciary, which may lead to a miscarriage of the fruits that the new transformative Kenyan
2010 Constitution promised to give birth to.
The first element of the judgement that stands out is the illogical distinction that the court
made between the case at hand, and the South African case of Irene Grootboom & others v
The Government of the Republic of South Africa & others (2001). 48 The Court of Appeal
stated that there was a big difference between the South African Constitutional provision, as
regards the right to housing and the Kenyan one. The South African Constitution in Article
26 provides that everyone is entitled to the right to have adequate housing, and that no one
may be evicted from, or have their home demolished without a court order issued, after
46 Miyawa OM, ‘Judicial enforcement of socio-economic rights: A case for dialogic approach in crafting
appropriate judicial remedies’ Unpublished, University of Nairobi, Nairobi, 2014, 13.
47 Miyawa OM, ‘Judicial enforcement of socio-economic rights: A case for dialogic approach in crafting
appropriate judicial remedies’ Unpublished, University of Nairobi, Nairobi, 2014, 13.
48 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016), eKLR.

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consideration of all the circumstances of the case, it also states that no law shall permit
arbitrary evictions. 49 Of course these seem like desirable policies to adopt in light of the new
transformative Kenyan Constitution. However, to the Court of Appeal, the trivial excuse that
the Kenyan Constitution did not expressly contemplate an exactly similar or mirror
constitutional article was enough to toss the whole policy into the bin. The Court did not even
delve into what exactly the right to housing entailed, instead, they delved into what it did not
entail. All this, despite the Kenyan Constitution’s socially progressive and liberal spirit. The
Court of Appeal decided that because Article 43(3) of the Kenyan Constitution, merely
mentioned that everyone has the right to accessible and adequate housing, and proper
sanitation 50 . The socially desirable policy of giving adequate housing to Kenyan citizens
could be flushed down the drain on this technical yet trivial consideration when making
comparative jurisprudence. This despite the spirit of both constitutions being alike.
The horizontal application of the Bill of Rights is generally regarded as being one of the
features of a transformative constitution. 51 Yet the Court of Appeal failed in simply holding a
statutory body, that is, the Kenya Airports Authority, accountable for their infringement of
the right to housing of the slum dwellers of Mitumba village. 52 Especially in light of the fact
that they disobeyed an existing interlocutory injunction issued by the High court. 53 The Court
argued that it was not the statutory mandate of the Kenya Airports Authority to settle landless
Kenyans and marginalised slum dwellers. 54 Thereby leaving the residents of Mitumba village
with no remedy. One wonders that even if it is not a statutory mandate, a constitutional
mandate can be inferred? If such a large governmental body cannot be held accountable, how
can the Bill of Rights ever be applied to private individuals and organisations? The most
disheartening part of the judgement is that undeterred by Article 43(3) of the Constitution, the
Court of Appeal failed to merely issue an order for resettlement of the displaced and evicted
residents of Mitumba village. The judgement was harsh and unjust considering the property
and homes of already economically disadvantaged Kenyans were destroyed and pulled down
where an injunction existed. The Court of Appeal ignored, turned their back to and were
oblivious to this fact, which did not in their eyes even have any merit for consideration in
their judgement.

49 Article 26, Constitution of South Africa (1996).
50 Article 43(3) Constitution of Kenya (2010).
51 Klare KE, ‘Legal culture and transformative constitutionalism’, 155.
52 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
53 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
54 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.

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The Court of Appeal continued to show its far reaching nonsensical, uninventive, strict and
obtuse ‘legal’ reasoning when contemplating international instruments. In specific, United
Nations Guidelines on Evictions, by the United Nations Committee on Economic, Social and
Cultural Rights, General Comment No. 7, which relates to the right to adequate housing. 55
The Court insisted that not all rules of international law form part of the laws of Kenya by
virtue of Article 2(5) and 2(6) of the Constitution. Instead, the Court of Appeal claimed that
the only international law that formed part of the laws of Kenya, are those that are
peremptory, general rules of international law. Meaning those that member states cannot
derogate from (principles of jus cogens). 56 As earlier mentioned, the judges typically occupied
their minds, as contemporary legal scholars do with the question as to the ‘positive morality’
or legitimacy of law, rather than investing their efforts into the task the Judiciary or legal
institutions can perform in curing societal issues and ensuring a just society. 57 Considerations
such as these, are leading to societal stagnation and in developing countries, they lead to
deeper social and economic injustices, such as in this case where the residents of Mitumba
village, who once had a home and property, had these demolished and annihilated.
It is important for judge’s to realise that their decisions are not made in a vacuum. 58 Kenya
has the largest slum in Sub-Saharan Africa, which is Kibera 59 and those who are housed there
live in appalling and unacceptable conditions. 60 In developing countries, such as Kenya, the
gap between those housed and those without housing seems to be getting larger. 61 The
General Comment No. 7, that the Court of Appeal was asked to apply, seeks to redress this
problem. It provides that where the citizens of a member state are evicted, they are to be
relocated. 62 This is a desirable social goal, tailored for countries such as Kenya, which has the
largest slum in sub-Saharan Africa 63 , and still has people living in caves. 64 What the decision

55 CESCR, General Comment No. 7, The right to adequate housing (Art.11:1): Forced evictions, 20 May 1997, 1-
3
56 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
57 Schweitzer K, ‘Inquiring into nature of the legal good’, 12-13.
58 Klare KE, ‘Legal culture and transformative constitutionalism’, 155.
59 Zaidman Y, Helen NG and Couton A, ‘Knowledge necessary to meet poverty alleviation goals: Building
enterprise to reach low-income markets’ LBJ Journal of Public Affairs 19, 2008, 104.
60 Kinuthia DN, ‘A critical evaluation of the right to housing in Kenya’, Unpublished LLM Thesis, University of
Nairobi, Nairobi, 2017, 7.
61 Kinuthia DN, ‘A critical evaluation of the right to housing in Kenya’, Unpublished LLM Thesis, University of
Nairobi, Nairobi, 2017, 7.
62 CESCR, General Comment No. 7, 1-3.
63 Zaidman Y, Helen NG and Couton A, ‘Knowledge necessary to meet poverty alleviation goals: Building
enterprise to reach low-income markets’, 104.
64 Kinuthia DN, ‘A critical evaluation of the right to housing in Kenya’, Unpublished LLM Thesis, University of
Nairobi, Nairobi, 2017, 48.

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of the Court of Appeal did was to add 15,000 more people into the category of homeless or
inadequately housed individuals.
The law and politics boundary maintained by the judiciary, was evident in the judgement.
The Court of Appeal held, ‘Questions which are in their nature exclusively political should
never be adjudicated upon by courts’. 65 It was further stated that in line with the United States
case of Marbury v Madison, 66 the role and responsibility of the court is only to decide on the
rights of individuals, not to question how the Executive, in matters where they have
discretion to act, performs its duties. 67 This approach when applied to articles contained in a
transformative constitution, renders them inanimate, and fails to give the breath of life which
leads to the material realisation of the Constitution. As Karl Klare put it, a transformative
constitution ‘intends a not fully defined but nonetheless unmistakable departure from
liberalism (as contemplated in classic documents such as the U.S. Constitution) toward an
'empowered' model of democracy.’ 68
II. Pragmatic Liberalism vs Agnostic Liberalism
i. The tumour lodged in the heart of the existing agnostic legal culture
Agnostic Liberalism has led us to this point. But it is important to point out why society has
not yet fully realised the fruits that liberalism once promised to produce. The ‘classical
liberal’ understanding of Liberalism is no longer relevant, up-to date and even beneficial to
society. Its short comings are beginning to evidently hinder the progressive liberal spirit. I
would like to argue that the rights-based attitude adopted out of necessity after World War 2,
has created a society in which the rights of the individual are put ahead of the duties and
obligations the individual owes to society and the state. 69 An imbalance that has led not only
to an increase in private wealth, but also to an increase in private poverty. 70 As the individual
was placed at the centre of the state, not again to be used just a means to the ends of the state,
this produced ‘self-confident’ and ‘vigorous’ men. However, the failure to emphasize the fact
that every right received carries with it multitudinous duties not to infringe on the rights of
others, has led to a society that is self-assured and poised, but is not competent enough to be
trusted with ‘power’ or ‘wealth’. 71

65 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
66 Marbury v Madison (1803), The Supreme Court of the United States.
67 Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR.
68 Klare KE, ‘Legal culture and transformative constitutionalism’, 152.
69 Hocking WE, ‘The future of liberalism’, 32 Journal of Philosophy 9, 1935, 231.
70 Hocking WE, ‘The future of liberalism’, 232-233.

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The telling feature of any apparatus is whether it tends to produce and generate its own kind.
A customary or religious tradition will not be extinguished as long as there are people willing
to consume, add to and promote that tradition. Unfortunately, Liberalism has ceased to beget
liberals due to the existing legal culture and educational temper. The liberal spirit is dimming
due to a culture that seems to despise the idea of moral duties in law and promotes ‘self-
indulgent’ and hedonistic principles. 72 The liberal tradition has not brought up liberal souls,
rather it has produced self-indulgent citizens, and self-indulgence is not consistent with a
principled or moral life. 73 William Hocking diagnoses, the illness of the liberal tradition,
which can produce a political and legal culture, ‘incapable of mature political
responsibility.’ 74
According to Robin West the ‘problem of power’ can only be solved by a moral (political)
and not a rational answer. She claims, drawing on Freud’s legal theory, the human individual
has two tendencies that put his desires at odds with society and the state. The first is that the
unrestrained man possesses not only egocentric, but also ‘dangerously anti-social instinctual
desires that are constantly at war with civilisation’. The second feature, is that this hostility
cannot be curbed by an appeal to empathy, or love in the individual. 75 In order to understand
what can lead human beings, and thus judges, legislators and private actors to sacrifice their
selfish desires for the state, a historical approach must be adopted. West accepts the idea,
propounded by Freud, that the Rule of Law is based on a moral imperative. The reason for
this can be seen in a ‘state of nature’ historical narration. Before civilised society existed, it is
reasonable to assume that the family unit was ‘governed’, protected and ruled by an all-
powerful father or male. The male figure exercised exclusive control over the female
members of the family. His sons, however, grew in aggressiveness and strength, to the point
where the father gave them an option to stay, and betray their instinctual, uninhibited desires
or to be exiled from the family. At this point, the sons realise they have a third option, that is
to overthrow and overpower the father. Once this is done however, they feel remorseful. As
the father is not a threat anymore, the sons begin to appreciate the protection and love he had
offered them when they were young. 76 Prompted by this sense of contrition, the sons decide to

71 Hocking WE, ‘The future of liberalism’, 232-233.
72 Hocking WE, ‘The future of liberalism’, 234.
73 Hocking WE, ‘The future of liberalism’, 234.
74 Hocking WE, ‘The future of liberalism’, 234.
75 West RL, ‘Law, rights and other totemic illusions: Legal liberalism and Freud’s theory of the rule of law’,
University of Pennsylvania Law Review 134(4), 1986, 822.
76 Freud S, Civilisation and its discontents, 47-48.

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create an artificial father like figure. They attribute all the commands they had broken to this
substitute figure, 77 stating that no one shall murder the substitute father, and even going to the
extent of denying themselves the female mates. In due course this same protection is
extended to all members of the family, and the Rule of Law was born. 78
Human beings therefore need a ‘God’ like or superior paternal figure, to bring order through
the higher moral principles that are attached to this figure. 79 This implies that the law has to
have some moral or political value attached to it, in order for it to be respected and adhered
to. People do not just generally, follow the law due to empathy or love. They require some
assurance that the law they are following draws its force or validity from a higher set of
principles, set down by a divine being. This ensures that enough emotional imperative is
created within an individual so as to enable him or her to use his higher spiritual or moral
faculties, to suppress immorality or selfishness and advance justice, responsibility and
equality.
An agnostic liberal, is a person that believes that nothing can be known about the existence or
nature of God within a legal or political, or even philosophical framework. This type of
person cannot respect the higher values of justice and morality, that the law implies, as they
are neutral towards the definition of what is morally desirable and good. 80 Therefore, an
agnostic state is one that refrains from pursuing morally and socially desirable policies,
because it paralysed by the fear of favouring one version of what is considered morally
desirable, in a culturally multifarious state. Where people are considered equal only to the
extent that the government does not act upon one political or moral philosophy, at the cost of
leaving the others feeling as if their ideas and conception of the good life are not considered
socially desirable. This conception of liberalism seems rational given the other choices.
Socialism and Conservatism both have a strong support. However, both have failed to give
life to a stable and democratic state when purely applied. Conservatism encourages
individuals or citizens to continue practicing their traditional and historical cultures because
of the trivial reason that they have survived the test of time. Conservatives believe that
society and the virtuous state should be modelled in a manner such that law reflects past
practices and traditions. 81 However, just because past practices exist and have survived, this

77 Freud S, Civilisation and its discontents, 47-48.
78 West RL, ‘Law, rights and other totemic illusions: Legal liberalism and Freud’s theory of the rule of law’, 824.
79 West RL, ‘Law, rights and other totemic illusions: Legal liberalism and Freud’s theory of the rule of law’, 826.
80 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 678.
81 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 675.

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does not necessarily imply that they are good, moral or even socially desirable. Socialists
often believe that society should be structured and modelled according to abstract principles
which look to a future where we all participate and mutually gain and create the society and
state we live in. 82 In order to appease both these sections of society, agnostic liberalism might
have seemed to be a reasonable alternative. 83 However, pragmatic liberalism provides a more
realistic and relevant ideology as compared to conservatism, agnostic liberalism and
socialism.
ii. A pragmatic liberal cure
The pragmatic liberal does not adopt a neutral stance. They are critical, pro-active,
experiential and inductive in their reasoning. While the pragmatic liberal values history just
as the conservative does, they do so in a critical manner. Learning about the historical
experiences, institutions and traditions that promoted the good life for the citizens of a nation,
not just discriminately accepting one’s own tradition as the path to a virtuous society. 84 In a
sense the pragmatic liberal displays or embodies what Karl Klare refers to as a ‘historical
consciousness.’ 85
The pragmatic liberal differs from the socialist in that, while the socialist derives their
conceptualisation of the good life deductively from abstract principles. The pragmatic liberal
emphasises an inductive, experiential approach. 86 To some extent this is a subjective and
personal approach that limits the historical arbitrariness of socialism by taking into
consideration the experience of the citizens, and what they feel leads to a virtuous state.
Finally, the pragmatic liberal, conservative and socialist all share the common belief that the
state should discriminate against which version of the good life it ought to pursue. 87 The
pragmatic liberal and the agnostic liberal differ to the extent that the agnostic liberal believes
that the state should be neutral towards all preferences or ideas of a virtuous state. Pragmatic
liberalism argues and proposes that the state should discriminate. However, not on the basis
of religion, or in such a manner that only the elite or members from a certain social group
benefit to the detriment of others. The state should adopt the definition or definitions of a
good life that seek to promote good for all members of society. This approach requires a
82 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 675.
83 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 680.
84 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 682.
85 Klare KE, ‘Legal culture and transformative constitutionalism’, 155.
86 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 681-682.
87 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 682.

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synergic, critical and unbiased attitude. The pragmatic liberal must always seek to
continuously, intelligently, experimentally and naturalistically construct a working definition
of the good life. 88
III. What Would a Material Pragmatic Liberal Solution Entail?
i. A complete transformation of the agnostic liberal legal culture
The existing legal culture, which Karl Klare describes as comprising of, ‘professional
sensibilities, habits of mind, and intellectual reflexes,’ 89 must be directed and oriented
towards the quest of justice. 90 This may necessarily require us to forge ‘cross-disciplinary’
ties in order to properly derive the meaning of justice as an end that the law and the state
must achieve. 91 We will require judges, legislators, politicians and philosophers to broaden
their scope of learning and reasoning. While increasing the depth of their understanding,
insight and wisdom. An ‘intelligent’ method of enquiring into the nature of justice must be
adopted. 92
The cross-disciplinary approach must more so be emphasised across the legal and
philosophical disciplines. Both subjects ought to delve into what the legal good entails.
Philosophers who enquire into political morality should reference constitutional theories, so
as to find a legal foundation for the constitutional imperative to carry out their politically just
projects. Lawyers will be more attracted to arguments, that although policy oriented, carry
legal weight. 93 Lawyers must be ready to broaden and deepen their definitions and ideas
relating to justice. A lawyer must be trained to respond to and understand those transparent,
sensitive appeals to emotion, ‘intuition’, ‘moral sentiment’ and those special, infrequently
articulated ethical or moral principles. 94
Schweitzer argues that lawyers and philosophers should aim to create a commonwealth of
knowledge when engaging in normative theorising of the law. She suggests that forums, such
as workshops and journals should be created because they will prove valuable for 2 reasons.
Firstly, participants will learn to formulate their arguments in a manner that scholars from
other fields can understand and evaluate for truth and applicability. Secondly, a
methodological framework will develop on how to create knowledge about how the legal
88 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 682.
89 Klare KE, ‘Legal culture and transformative constitutionalism’, 166.
90 Schweitzer K, ‘Inquiring into nature of the legal good’, 13-14.
91 Schweitzer K, ‘Inquiring into nature of the legal good’, 13.
92 West RL, ‘Liberalism rediscovered: A pragmatic definition of the liberal vision’, 682.
93 Schweitzer K, ‘Inquiring into nature of the legal good’, 14.
94 Schweitzer K, ‘Inquiring into nature of the legal good’, 14.

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good is to be accomplished. 95 This will also help in creating a culture of justification and
transparency, as lawyers will not be locked in a thick medium of traditional jurisprudence and
practice. Lawyers will have to justify their arguments and practices in a cross-disciplinary
medium. This will necessarily lead to the condemnation and disposal of irrelevant and unjust
legal arguments, while also leading to the adoption of new, creative and innovative legal
reasoning. 96
ii. Conclusion
Karl Klare states that in the classical-liberal legal culture, ‘judges are appointed neutrally to
enforce laws set down by others, not to make politics.’ 97 It is important for the legal and
political fraternity to realise that a transformative or enlightened Constitution will not be
accomplished and executed by untransformed and unenlightened citizens. 98 The Constitution
envisages large scale social and economic changes, these are necessary political and resource
based projects that judges especially will have to engage in, in order to serve the people.
Legal institutions must reconsider their relevance and role in a new legal order. Otherwise
attempts to interpret and implement the new transformative 2010 Kenyan Constitution will be
frustrated. Old instruments cannot be used to fix new appliances.

95 Schweitzer K, ‘Inquiring into nature of the legal good’, 14.
96 Klare KE, ‘Legal culture and transformative constitutionalism’, 171-172.
97 Klare KE, ‘Legal culture and transformative constitutionalism’, 157.
98 Hocking WE, ‘The future of liberalism’, 234.