REPUBLIC OF KENYA - The Judiciary

[91] Although I had categorized the jurisprudence envisaged by the
Constitution as robust (rich), patriotic, indigenous and progressive (all
these attributes derived
from the Constitution itself, and from Section 3 of the Supreme Court
Act), perceptions of this decolonizing jurisprudence can be summed up
as Social Justice Jurisprudence, or Jurisprudence of Social
Justice. Such jurisprudence in all our Courts, and in particular at the
Supreme Court, as the apex court in the Republic of Kenya, will ensure
that the fundamental and core pillars of our progressive Constitution
shall be permanent, irreversible, irrevocable and indestructible – as
should also be our democracy.
[92] I would like to add more bases of constitutional interpretation (not
covered in my dissenting Advisory Opinion) - some informed by arguments
of counsel, and others that I have since reflected upon.
[93] The principle of the supremacy of the Constitution declared in Article
2, particularly sub-article 4, which defines in extremely broad
terms laws and acts that may be questioned for compatibility with the
Constitution, expresses the intent that all provisions of the Constitution
are justiciable.
[94] The Supreme Court of India in D. S. Nakara v. Union of India
[1983] SCR (2) 165 invoked the word “socialist” in the preamble to the
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