Judicial Deference: an Evaluation of the Shifting Approaches to Judicial Deference Under the Constitution of Kenya 2010 University of Nairobi

Abstract

This study examines the extent to which the Constitution of Kenya altered historical and contemporary approaches to judicial deference in Kenya. The study argues that although historically Kenyan courts exercised judicial restraint in their relations with other branches of Government, nevertheless the promulgation of the Constitution of Kenya 2010 resulted in a fragmented approach to judicial deference because it was people-centred and rights-based. Those approaches by courts include declining to accept jurisdiction where decisions are reserved for determination by other arms of government; showing curial deference by respecting the competence of other agencies and authorities; and declining to defer to other authorities based on the authority of courts to exercise Constitutional scrutiny of Government conduct. The study argues firstly that fragmentation has resulted from the search for harmonization of approaches. By exploring deference in different select jurisdictions including the United States of America, Canada, the United Kingdom, India and South Africa, the study reveals that it is an evolving concept and legal practice. Deference by courts is influenced by issues presented to them and the existing relationship between them and other branches of government. The study also argues that failure to defer to decisions of administrative authorities undermines public confidence in them thereby limiting the Constitutional Right of Access to justice. The study relies on the transformative constitutional theory by Karl Klare’s which argues that changes in the judicial deference doctrine depend on governance whose focus is on rights enforcement and social transformation. The study has found that deference by courts to other arms of government guarantees respect for judicial independence. Key recommendations include the exercise of caution and judicial restraint as well as increased use of alternative dispute settlement mechanism.