Jurisdiction without the Law

A Response to Walter Khobe’s Reflections on the Jurisdiction of the Supreme Court

Abstract

The jurisdiction of the Supreme Court of Kenya has been a subject of debate since the inception of the court. However, what has raised more questions than answers is the jurisdiction to interpret and apply the Constitution. The Supreme has extended this jurisdiction to mean interpretation and application of a category of statutes it calls “normative derivative legislations”. In this response to Walter Khobe’s piece, this paper argues that Kenya does not have constitutional statutes that enjoy a special character in the country. In a country with a written Constitution, laws acquire their status not because of their content but because of their formal place in the legal system. This piece posits that jurisdictional clauses should not be interpreted broadly as a matter of policy to avoid courts redefining their functions. It proceeds to demonstrate that normative derivative doctrine emanates from the fallacy of hasty conclusion- that by statutes enacting constitutional provisions they change their character from ordinary statutes to special ones. This piece engages with some of the monumental Supreme Court decisions that have exposed the court as lacking a coherent approach to the issue of the normative derivative.