Constitutional litigation plays a vital role in the protection of rights and the enforcement of the Constitution, which is the supreme law of the land. It is through constitutional petitions that individuals challenge laws, policies, and actions by directly invoking a constitutional provision. Kenyan courts have a duty to uphold these rights and breathe life into constitutional principles.
However, the Constitution does not operate in a vacuum. It is part of a broader legal framework, and not every dispute can be suitably resolved through a constitutional petition. This is where the doctrine of constitutional avoidance comes in.
What is Constitutional Avoidance?
The doctrine of constitutional avoidance is a principle of judicial restraint. It provides that where the court can determine a dispute through an alternative legal procedure i.e. civil or criminal procedure, it should do so, instead of deciding the case through a constitutional petition.
Why Does it Matter?
The doctrine helps to maintain legal order and respect for established legal processes. The Constitution, specifically the Bill of Rights, is applicable in most disputes and is suitable for instances where the violation of the right is the main or only issue to be addressed. However, other disputes which have substantive criminal and civil issues and which do not call for an extensive analysis of the constitutional rights might end up clogging the High Court division which deals with constitutional claims. The doctrine of constitutional avoidance provides that such disputes which could be resolved through other means are not determined through a constitutional petition.
The exceptions to the application of the doctrine of constitutional avoidance are:
- Where the constitutional violation is so clear and of direct relevance to the matter,
- In the absence of an apparent alternative form of ordinary relief; and
- Where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.
Conclusion
While the Constitution is central to Kenya’s legal system, it exists alongside a rich body of statutes, common law, and regulations. The court’s role is not only to protect constitutional rights but also to uphold the integrity of the legal system as a whole. The doctrine of constitutional avoidance and the requirement for specificity in pleadings serve to keep constitutional interpretation meaningful, focused, and effective.
In essence, the Constitution is the supreme law, but not the only law. Judicial restraint ensures it is applied wisely and only when truly necessary.
For guidance on the most effective avenues to protect and enforce your rights, whether through constitutional litigation or alternative legal remedies, feel free to contact us at info@cfllegal.com
