Timothy Njoya and others vs Attorney General and CKRC (2004) was a case that emerged after years of complaints over the constitution. In 1997, the Government of Kenya yielded to pressure from the public for a complete overhaul of the Constitution.
As a result, Parliament published a Bill to facilitate this process by enacting the Constitution of Kenya Review Commission Act of 1997. This Bill was amended four times, finally becoming the Constitution of Kenya Review Act (Chapter 3A) of the Laws of Kenya.
The Constitution of Kenya Review Act established theConstitution of Kenya Review Commission. The work of CKRC was to visit all constituencies in Kenya, compile reports, conduct and record the decisions of the referendum (section 27(6)).
Thereafter, CKRC would draft a Bill for presentation to Parliament for enactment (section 26(7)). CKRC would then establish a conference, the National Constitutional Conference, to approve a final draft of the Constitution before presenting it before parliament.
The NCC, also known as the Bomas Conference had representatives from Parliament, Civil Society and Local Councils. The delegates became deeply divided over a number of core issues during the course of the conference. Consequently, 7 Kenyans applied to the High Court for orders that the review Act was unconstitutional, among them was Timothy Njoya.
In the case of Timothy Njoya and others vs Attorney General and CKRC (2004), the issues calling for answers were:
- The proper approach to constitutional interpretation
- The concept of constituent power of the people and its implications for the constitutional review process
- The constitutional right to equal protection of the law and non-discrimination
- The scope of the power of Parliament under section 47 of the Constitution of Kenya
- Whether the provisions of section 28(3) and (4) of the Act were inconsistent therewith
The ruling of the court in the case of Timothy Njoya and others vs Attorney General and CKRC (2004) was as follows.
The Proper Approach to Constitutional Interpretation
The Court held that approach to constitutional interpretation in this case would be broad, liberal and purposeful. The Constitution is not an Act of Parliament and it is not to be interpreted as one. This is contrary to the El Mann principle (Republic v Elman 1969 EA 357). The Constitution is a living instrument with a soul and a conscious. It embodies certain fundamental values and principles. To interpret it in its ordinary and natural words as the respondents purported would lead to an absurdity. It would plainly dilute, transgress or vitiate constitutional values and principles. (Ndyanabo v AG 2001 2 EA 485)
The Constituent Power of the People and its Implications
The sovereignty of the people betokens that they have a constituent power by which all citizens can make or change the Constitution. The power, while not expressly recognized, has a primordial status within the Constitution. Furthermore, this constituent power must not be exercised indirectly through a constituent assembly within the phase of Constitution-making. It must be exercised directly through a referendum whereby every Kenyan votes to adopt the Constitution.
The Constitutional Right to Equal Protection of the Law and Non-Discrimination
Since only one third of the delegates to the National Conference were directly elected by the people, the Conference lacked the people’s mandate. Therefore, was not a proper constituent assembly. The composition of the National Constitutional Conference was quite flawed and skewed. Minorities should not be turned into majorities in the decision-making bodies of the State.
Inconsistency of Section 28(3) and (4) of the Act with Section 47 of the Constitution
In addition, Parliament does not have power in the exercise of its amendment power under section 47 of the Constitution to repeal the current Constitution and enact a new one. It only has power to alter some provisions of the Constitution, but not to change it to the extent of creating a whole new Constitution. Therefore, changing the basic structure of the Constitution rests with the people. Hence, section 28 of the Review Act was inconsistent with section 47 of the constitution, declaring it null and void.
According to the judgement in Timothy Njoya and others vs Attorney General and CKRC (2004), the fundamental values and principles used to interpret the Constitution were:
- Doctrine of separation of powers
- Enjoyment of fundamental rights and freedoms
Cases referred to in judgment
- Adar and others v Attorney-General and others miscellaneous civil application number 14 of 1994 (UR)
- Githunguri v Republic  KLR 1
- Matiba v Attorney-General High Court civil miscellaneous appeal number 666 of 1990 (UR)
- Michuki and another v Attorney-General and others  1 EA 158
- Mutunga v Republic  KLR 167
- Ndyanabo v Attorney-General  2 EA 485
- Nganga v Republic  KLR 121
- Njogu v Attorney-General  LLR 2275 (HCK)
- Republic v El Mann  EA 357
- Uganda v Commissioner of Prisons ex parte Matovu  EA 514
- Keshava Menon v State of Bombay  SCR 228
- Kessevananda v State of Kerala  AIR (SC) 1461
- Minerva Mills Limited v Union of India  1 SCR 206
- Teo So Lung v Minister for Home Affairs  LRC 490
- Barnes v Jarvis  I WLR 649
- BA Reynolds v MO Sims USSC Report  Volume 12
- Reynolds v Simms [377 US 533, 12 L Ed] 506