UNDER THE FORMER CONSTITUTION
Under article 3 of the former constitution of Kenya it is provided that:
“This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void…”
From the above article the constitution is the supreme law of Kenya and any other law has to be subject to the constitution.
Cap 8 – Judicature Act
The Judicature Act provides for the hierarchy of laws to be applied by the Kenyan courts.
Section 3 of the Act provides:
3. (1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with –
(a) the Constitution;
(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August,1897, and the procedure and practice observed in courts of justice in England at that date; but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.
(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.
Under Section 3(c) the doctrine of Equity applied in so far as the written laws did not extend or applied. This implied that the written laws in Kenya took precedent over the doctrines of equity.
THE NEW CONSTITUTION
The constitution has chosen to address the hierarchy of laws in Kenya. Article 2 states
2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
(2) No person may claim or exercise State authority except as authorized under this Constitution.
(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
The new constitutional order does not out-rightly refer to the doctrine of equity as a source of law in Kenya. Article 2(5) refers to the general principles of international law forming part of Kenyan law. The question will be, whether the doctrines of equity form part of the general principles of international law?
This is a debate that has blogged the minds of legal scholars in the international community. In the Netherlands v Belgium (1937)1 case on diversion of water from the River Meuse, Judge Manley stated “Under article 38 of the statute, if not independently of that article, the court has some freedom to consider principles of equity as part of the international law which it must apply.”
Also in the Norwegian Ship Owners’ Claims2 (between the U.S. and Norway) who were to decide the claims by applying ‘law and equity’ said:
“The words ‘law and equity’ … can not be understood here in the traditional sense in which these words are used in Anglo-Saxon jurisprudence. The majority of international lawyers seem to agree that these words are to be understood to mean general principles of justice as distinguished from any particular system of jurisprudence or the municipal law of any state”
Judge Anzilotti, the Italian jurist who had been the rapporteur of the 1920 Advisory Committee to draft the Statute of the Permanent Court of International Justice, describing the maxim ‘one who seeks equity must do equity’ as:
“So just, so equitable, so universally recognized, that it must be applied in international relations. [It is one of the] general principles of law recognized by civilized nations.”3
Justice Margaret White stated in her article4 “…when consider in the context of specific cases, equity has a wide acceptance and is part of the general stock of legal norms of the international order…To this extent equity is a general principle of law recognized by civilized nations.”
From the above authorities, the doctrines of equity are settled to be general principles of international law, hence, applies in Kenya under Article 2(5) of the constitution of Kenya.
CONCLUSION
The difference between the position of equity in the older constitutional dispensation and the current one is that; in the former constitutional order the doctrines of equity applied where written laws did not extend or apply. The new constitutional order changes this position by making the general principles of international law part of the Kenyan law. This means that the doctrines of equity automatically become part of the Kenyan laws without being subject to other statutes, a position it held in the former constitutional order.
1 Diversion of Waters from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70,4.
2 (1922) 1 Reports of International Arbitral Awards 307.
3 Diversion of Waters from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70, 4, 50.
4 EQUITY – A GENERAL PRINCIPLE OF LAW RECOGNISED BY CIVILISED NATIONS? 2004
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