Proportionality on the ‘lite’

The Kenyan Supreme Court’s fatalism in the Fatma Athman Abud (FAAF) case

Abstract

This case commentary discusses the recent Supreme Court of Kenya decision in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi and 2 others which, sitting at the intersection of religious pluralism and the right to equality, has elicited quite the public discourse. This commentary forwards three main arguments: first is that the Supreme Court of Kenya, the Court of Appeal, and, to a large extent, the High Court in this case failed to apply Islamic law to resolve the contending claims in the case. This failure is mainly influenced by the relegation of Islamic law to the status of retrogressive culture that the colonial doctrine of repugnancy aimed to check. The second claim is that the Supreme Court did not correctly distinguish between ‘limitations’ and ‘derogations’ in the Kenyan 2010 Constitution’s Bill of Rights. This terminology and doctrinal inaccuracy affected the general trajectory of analysis, especially on the chosen standard of the review of proportionality. Lastly, the Supreme Court in this case, for the first time, introduced the famous four-part proportionality test through a ‘side-door’ as the appropriate standard of review. This commentary concludes by arguing that although the general outcome of the case has been celebrated as progressive, the outcome is still questionable since the path of reasoning by the Supreme Court is faulty.