Given that the text of the Constitution of Kenya, 2010 is often vague, ambiguous and seemingly contradictory, the text cannot provide a self- evident and fixed meaning to those who read it. Instead, it requires interpretation, and to do so it seems necessary to invoke sources of understanding and value external to the text and other legal materials.
In an attempt to solve the dilemma posed by the open-ended and often vague nature of the provisions, the judges of the Supreme Court have turned to Kenyaâ€™s history to aid constitutional adjudication and use history as a â€˜super contextâ€™ â€“ a universally accepted, meaning-giving story about the origins and purposes of the Constitution.
This use of history has run into a storm. The historical veracity of a paragraph of the judgment by the Supreme Court of Kenya in Communications Commission Of Kenya & 5 Others v Royal Media Services Limited & 5 Others  eKLR Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated) has been challenged by Royal Media Services Limited.
The paragraph reads: â€œ The licensing of Citizen Radio and Television appeared to be conditional upon political cooperation between its owners and the ruling political party, KANU. When it was not forthcoming or assured, the operator was switched off the air and their equipment vandalized. This sort of State interference with the media also occurred in 2005 when State agents raided the Standard Media Group, which was then also operating the KTN TV station, set the newspapers on fire and disrupted program transmission on TV.â€
Following the judgment, Royal media services has disputed this version of events. The media house issued a press statement noting that â€œRMS was greatly aggrieved by the fact that it was wrongly depicted by Court as a corrupt enterprise, whereas it champions constitutionalism, rule of law, democracy, transparency and integrity in the management of public affairs.â€
The Supreme Court has had to issue a Press Statement pointing out that it will not be drawn to discussing the merit or otherwise of the press statement by Royal Media Services. [READ]Â http://www.judiciary.go.ke/portal/press-statement-petition-no-14-of-2014-communications-commission-of-kenya-5-others-v.-royal-media-services-5-others.html
The counter-narratives of history by the Supreme Court and the Royal Media Services brings to fore the problems posed by the quest for historical â€œtruthâ€.
The search for historical â€œtruthâ€ is illusive if not impossible.
Jean Francois Lyotard in â€˜The Post-Modern Condition: A Report on Knowledgeâ€™ points out that it is inevitable that everyone in the society will have their own perspective and story and thus not everyone will agree with a particular â€œgrand narrativeâ€ of history.
According to this view, history is nothing more than a very specific, contextually situated, version of the past. The past is made up of an infinite number of events- of which only a fraction can ever be captured in any particular version of history.
The 30 million inhabitants of Kenya, for example, take part in and experience an array of events every day of their lives. Clearly, this indeterminable number of experiences can never be accurately reflected in any one version of history. History is therefore always a construction made in the present by people living in the present about a selected number of events that took place in the past. But even these events and situations that are recaptured in the name of history cannot recover the past -all that can be recovered are specific, contextually situated, accounts of certain events and situations.
In other words, a particular version of history is nothing more than an interpretation by a specific person with a specific point of view at a specific historical juncture of selected past events. History is thus a discourse about the past, but it is decidedly different from that past. No matter how widely accepted and verifiable, history remains inevitably a personal construct, a manifestation of the narrator of that historyâ€™s perspective.
If one sees history in this way, one has to conclude that the use of history for any purpose is potentially problematic. The ways in which history is collected, recorded, documented, stored, recollected, recalled and remembered all impact on the role, influence and power of history.
As Michel Foucault has argued in â€˜Nietzsche, Genealogy, Historyâ€™ and â€˜Discipline and Punish: The Birth of the Prisonâ€™, because of power relations (or, to simplify, ideology or politics) some voices from the past are silenced, marginalised or systematically excluded in historiansâ€™ accounts of the past, while others are amplified and given pride of place.
These poignant tweets by Ory Okolloh Mwangi @kenyanpundit â€¢ Jun 21 capture this concern in the Kenyan context:
â€œIf it was up to me the TJRC report (full) would be required part of the school curriculum, not the Disney version of history we are taught.â€
Ory Okolloh Mwangi @kenyanpundit â€¢ 1 day ago â€œAbsolutely loving Gabrielle Lynchâ€™s â€˜I Say To You.â€™ Sad that the history we were taught in school is largely bullshit.â€
To give the reader a perspective on contestations with respect to history in Kenya one might reflect on whether it is possible for the government of Kenya to allow Daniel Branchâ€™s inimitable work â€˜Kenya: Between Hope and Despair, 1963-2011â€™ to be taught in schools?
When we do history we have to choose a position and thus we have to select a version of the past and a way of appropriating it that has certain material effects. That choice will inevitably align with some reading(s) of the past (and the present) and against others.
As Keith Jenkins explains in â€˜Re-Thinking Historyâ€™, â€œthose who claim to know what history is â€¦ have always already carried out an act of interpretationâ€.
An important point follows from this: history is inevitably a product of the present and reflects our understanding of the present. The past is always being created in light of the present. We are, to some degree, prisoners of the present and can therefore never claim to create history from a neutral perspective. All sides in a story have their versions of the past to legitimate their practices- versions that might either be included in the dominant discourse or excluded as improper.
The discourse of history is therefore profoundly contested. History is politics; it is a â€œfield of forceâ€, or as Keith Jenkins puts it: â€œa series of ways of organising the past by and for interested parties which always comes from somewhere and for some purpose and which, in their direction, would like to carry you with them. This field of force excludes and includes, marginalizes views of the past in ways and in degrees that refract the powers of those forwarding them. If we use the term discourse we acknowledge that history is never itself, is never said or read (articulated, expressed, discoursed) innocently, but that it is always for someone. And knowing this empowers the knower and this is a good thing.â€
To work with history requires, as argued by Jacques Derrida in â€˜Archive Fever: A Freudian Impressionâ€™, that one should strive to read history from a position of critical intelligence, aware that any reading is already a choice that excludes and includes-even when one might not realise it. Such a sensitive reading of the past will compel one to ask how many other â€œpeople(s), classes, have been/are omitted from histories and why; and what might be the consequences if such omitted â€˜groupsâ€™ were central to historical accounts and the now central groups were marginalized.â€
The attempt to deploy history as context in constitutional interpretation is therefore fraught with risks given the view that history is a profoundly subjective account of selected events in the past. Andre van der Walt points out in â€˜Legal History, Legal Culture and Transformation in a Constitutional Democracyâ€™ that history is just as much about the present and the past, and it reflects choices about who and what must be included and who and what excluded.
The argument being canvassed is not that judges in Kenya should not deploy history when they are called upon to interpret the Constitution. It is true that the Constitution of Kenya, 2010 contains several references to Kenyaâ€™s history and is therefore historically self-conscious. However, it must be acknowledged that although the â€˜super contextâ€™ provided by the Court might at present be widely accepted as â€œtrueâ€ or â€œcorrectâ€, because it forms part of the dominant discourse produced by existing power relations in society, this acceptance is not inevitable or fixed, and the Courtâ€™s sanctioning of this â€˜super contextâ€™ thus constitutes a political choice.
By choosing a particular version of history, by making choices of whom/what to include and whom/what to exclude, judges are therefore indeed making deep political choices. And in so doing, they are assisting in the construction and maintenance of what it is legitimate to think of as Kenyaâ€™s history: of whom/what must be included or excluded.
To conclude, the Supreme Courtâ€™s use of the â€˜super contextâ€™ of Kenyaâ€™s history can be argued to be an attempt to replace (outdated) fictions about legal interpretation, fictions such as that the interpretation of a legal text should seek to establish the â€˜intention of the legislatureâ€™, with a new fiction that the meaning of a legal text should be discovered with reference to the historical context in which it is read.
It also replaces the formalistic reliance on â€˜literal interpretationâ€™-dictionary meaning- of constitutional texts for a more substance engagement with the values of the Constitution and should be encouraged.
This article appeared on the SCORKblog; a website dedicated exclusively to coverage of decisions of the Supreme Court of Kenya. Walter Khobe is an advocate of the High Court of Kenya SCORKblog publisher.Â