Warsame emphasizes the Constitution as a product of extended negotiations

Añadido: 2026-04-29

[00:00:00]Now correct me if I I I did not record um well but from your opening statement you said that the Supreme Court must speak to the needs of Kenyans.

[00:00:17]The Supreme Court must ask uh must uh question whether it is carrying the people of this country on board.

[00:00:24]And then you also said you must carry the Wikos on board.

[00:00:29]Then uh you again said the Supreme Court must be sensitive in addressing the needs of Kenyans.

[00:00:36]Again in answer to uh Commissioner Mza you said the Supreme Court must carry the citizen the the Supreme Court must carry the citizen in its decision making.

[00:00:49]I have a very simple question.

[00:00:51]>> Yes. I ask you this question cognizant of the fact that you and I believe that believe in the supremacy of the constitution. You have said >> we also know that public expectations matter in a democracy and that the court must also be sensitive to public aspirations.

[00:01:14]But we also know that article 2 declares the constitution supreme and binds all persons and state organs and article 10 identifies national values while article 259 directs the manner in which the constitution is to be construed.

[00:01:35]Now from what you had said before and taking into account the provisions of the constitution, how should the court handle cases where constitutional text, constitutional values and public expectations appear to point in different directions.

[00:01:53]>> Thank you.

[00:01:53]>> It is analogous to what you are discussing with commissioner. Thank you honorable honorable AG public we know we must understand and this is the starting point our constitution was arrived through a rigorous process.

[00:02:14]It took almost uh more than 30 years to have a consensus. We could not have a consensus.

[00:02:22]That is why we had a referendum and that is why the reds were defeated and the reds were not few people there were size number of Kenyans.

[00:02:34]Our con the our constitution like any other constitution is a social contract and our contract by its nature has its own pitfalls.

[00:02:46]There are people who have strong negotiation arguments. So they may agree or they may have their issues put in the constitution or in the document while others may have a weaker argument or position. So the constitution is a compromised document and as uh CJ Mutunga said in one of his position it has in it has inconsistencies and it has grammar and it has many other problems but it is the starting point. I come to your question.

[00:03:23]The question is how do we address? There are two schools of thought.

[00:03:31]There are judges or scholars who say no matter your views, we should regard our views no matter how strong they are and follow the constitutional text.

[00:03:49]There is another group which says look for something that can give rights the proposive rights of certain group of people who think they do not find what they entitled to in the constitution.

[00:04:10]The point I'm making is no matter how ardent and strong our views are as judges, we should avoid as much as possible granting or refusing rights which are not found in the constitution text.

[00:04:29]Those are my preliminary views.