The doctrine of implied jurisprudence and the role it has played in adjudication of constitutional cases in Kenya
This study explored the myths, principles and policies that guide judges whenever they are confronted with hard cases where the constitution is silent. Special attention has been paid to the various circumstances and reasoning that guide Judges giving different perspectives. A broad methodology of past, present and future perspectives was used to collate views from the respondents. Particular emphasis was given to various contexts like the economic, political, social, cultural and environmental considerations which have influence on judicial officers in the adjudication of difficult cases. The findings in this study indicate that judges in Kenya are overworked, and lack basic equipments like computers and research Assistants to facilitate and enhance their capacity to read and develop the law in broader context and understanding to give meaning to issues that are not immediately apparent in the law. Lack or scarcity of these tools complicates their capacity to develop the law to reflect new perspectives that have emerged since the constitution was first promulgated. This needs skills of patience, perseverance and an appreciation of the living law that is normally not written anywhere. The study also reveals that there is a direct correlation between the level of exposure and enlightenment and the efficiency and competency of judicial officers in terms of appreciating issues in the right perspective and context but where the judicial officers were in constant fear and apprehension of political interference this undermined their full potential to develop the law through well reasoned judicial pronouncements. It was not surprising that a combination of factors including the history of the constitutional text under consideration play a major influence in informing judicial officers in the adjudication of hard cases. Chapter overview Chapter one deals with the evolution of the doctrine of implied jurisprudence, the principles that have been developed to guide purposive interpretation of Constitutional cases, a critique of original intent, the meaning of Constitutional silence, jurisprudential values that inform the doctrine, parallels from ancient cases, characteristics of the doctrine of implied jurisprudence. Chapter two analyses the global character of the doctrine of implied jurisprudence, the influence it has had on trans-national jurisprudence. Chapter three analyzes how the Courts in Kenya have applied the doctrine of implied jurisprudence in adjudication of constitutional cases, and the analysis and discussion of the research findings. Chapter Four deals with conclusions and recommendations.