Page 1 of 64

THE PLACE OF MORALITY IN KENYAN LAW

by

NAMUYA AMOS LOKAII

LAW-M-0998-09-11

A DISSERTATION

submitted in partial fulfillment of the requirements for the degree

IN BACHELOR OF LAWS

DEPARTMENT OF PUBLIC LAW

KABARAK SCHOOL OF LAW

KABARAK UNIVERSITY

Nakuru, Kenya

November, 2014.

(i)

Page 2 of 64

ACKNOWLEDGEMENTS

I would like to most sincerely acknowledge all those who helped me during the course of my

research for this dissertation both at the proposal and the dissertation stage. Thank you all for I

am really indebted to you.

Special thank goes to my lovely mum, whose unwavering love, care and encouragement has seen

me come this far as far as my undergraduate studies and dissertation are concerned. Thanks to

her for her constant calls to monitor each and every step I took. Mama you are a hero to me.

I want to acknowledge the professional and diligent supervision from my able and learned

supervisor, Dr. Ken Obura for his high standards and guidance throughout my research process.

Thanks so much for the flexible approach he adopted in the supervision of my research

especially when my initial supervisor Mr. Charles Khamala had left for his PhD research.

Thanks to Ms. Jaini Shah whose concerns and encouragements during times of difficulty have

been so instrumental to the mental and moral psyche to keep moving. Thanks a lot to her.

My sincere appreciations go to Caroline Cherotich, the Senior Administrative Assistant at the

Kabarak School of Law whose services have generally made my undergraduate research and

studies to be fruitful.

Thanks to all my friends, colleagues and relatives for being there for me at all times.

(ii)

Page 3 of 64

DEDICATION

I gladly dedicate this dissertation to the Almighty God whose creative power brought me into

being and whose grace, love, care, providence and protection kept me to this minute.

I also dedicate the dissertation to my mum and dad for their parental love, care, guidance and

providence.

To former President Daniel Arap Moi through the Moi Africa Institute, whose charitable nature

and philanthropy made me see the lecture theatres at Kabarak University School of Law.

I finally dedicate this dissertation to all those who have contributed to the field of law and

knowledge generally.

(iii)

Page 4 of 64

DECLARATION AND APPROVAL

DECLARATION

I hereby declare that this dissertation is my original work and the sources of materials used

herein have been duly acknowledged as per the universal academic way of acknowledging such

sources and that it has never been presented or submitted to any institution of learning for

academic purposes other than Kabarak University School of Law by me.

Dated this …………………. Day of …………………….2014.

Sign……………………………………

NAMUYA AMOS LOKAII,

(LAW-M-0998-09-11)

Researcher/ Author of the dissertation.

APPROVAL

This undergraduate dissertation has been submitted to me for examination and approval as a

University Supervisor.

NAME SIGNATURE DATE

DR.KEN OBURA ……………………… ………….. …

(iv)

Page 5 of 64

List of Statutes

The Constitution of Kenya, 2010

Advocates Act Cap 16 Laws of Kenya

Children Act, 2001

Criminal Procedure Code Cap 75, Laws of Kenya

Economic Crimes and Anti-Corruption Act, 2003

Judicature Act Cap 8, Laws of Kenya

Leadership and Integrity Act, 2012

Marriage Act, 2014

Penal Code Cap 63, Laws of Kenya

Public Officers Ethics Act, 2003

Sexual Offences Act, 2006

(v)

Page 6 of 64

List of International Instruments

African Charter on Human and Peoples’ Rights, 1986.

American Convention on Human Rights “Pact of San Jose, Costa Rica’’ (B-32).

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the

African Court on Human and Peoples’ Rights 1998.

Memorandum of Proposals for the Prosecution and Punishment of certain War Criminals and

other offenders, 30 April 1945.

(vi)

Page 7 of 64

List of Cases

Benson Riitho Mureithi vs. J. W. Wakhungu & 2 others [2014] eKLR

Evans Nyambega Akuma vs. Attorney General & 2 others & 2 others [2013] eKLR

Githunguri vs. Jimba Credit Corporation Limited civil case number 2 of 1988

International Centre for Policy and Conflict & 4 Others vs. Hon. Uhuru Kenyatta and Others,

Petition No. 552 of 2012

Kiplagat Korir vs. David Kipgeno Mutai Civil Appeal number 52 of 2005

Luka Angaya Lubwayo vs. Gerald Otieno Kajwang High Court Petition No 120 of 2013

Miller vs. Miller Civil Case No 2855 of 1987.

Oposa vs. Factoran case; Abe vs. Foster Wheeler Corp (110 Phil.198, 203{1960})

Prince vs. President of the Law Society, Cape of Good Hope and Others 1998 (8) BCLR 976 (C).

Israel Vs Adolph Eichmann (1961)

Shaw vs. DPP (1962) AC 220 House of Lords.

Zainab Mohammed case no.4728 of1998.

(vii)

Page 8 of 64

TABLE OF CONTENTS

Title Page…………………………………………………………… (i)

Acknowledgements………………………………………………….(ii)

Dedication……………………………………………………………(iii)

Declaration and Approval……………………………………………(iv)

List of Statutes………………………………………………………..(v)

List of International Instruments…………………………………….(vi)

List of Cases…………………………………………………………..(vii)

Table of contents………………………………………………………1

Chapter One: Introduction…………………………………………...3

1.0 Introduction………………………………………………………3

1.1 Background to the Study…………………………………………4

1.2 Statement of the Problem ……………………………..…………5

1.3 Objectives………………………………………………………….6

1.4 Hypothesis…………………………………………………………6

1.6 Significance………………………………………………………...6

1.7 Scope………………………………………………………………..7

1.8Theoretical Framework……………………………………………...8

1.9 Literature Review……………………………………………………9

2.0 Research Methodology……………………………………………..16

Chapter Two: Law and Morality………………………………………….17

2.1 Introduction…………………………………………………………….17

2.2 The overlap between law and morality…………………………………17

2.3 Distinction Between law and morality…………………………………23

2.4 The language of law and morality………………………………………23

2.5 Substantive distinction………………………………………………….24

2.6 Legal enforcement of morality…………………………………………26

Page 9 of 64

Chapter Three: Moral Content of Kenyan law………………………....33

3.0 Introduction…………………………………………………………….33

3.1 Offences against morality……………………………………………..34

3.2 Formal Morality in Kenyan Law…………………………………….38

Chapter Four: Morality and Human Rights………………………………41

4.0 Introduction……………………………………………………………..41

4.1 Morality and human rights…………………………………………….41

Chapter Five: Case law on moral content of Kenyan Law……………….45

5.1 Introduction………………………………………………………………45

Chapter Six: Conclusions and Recommendations…………………………..54

6.0 Conclusion………………………………………………………………..54

6.1 Recommendations………………………………………………………..56

Bibliography……………………………………………………………………57

6.2 Books…………………………………………………………………….57

6.3 Articles and Journals……………………………………………………..58

Page 10 of 64

CHAPTER ONE: INTRODUCTION

1.0 Introduction

The debate surrounding the relationship between law and morality has been on and on for some

time between legal positivists and moralists. Questions as to whether law and morality is one and

the same thing, whether morality informs the law and to what extent; and whether law can be

used to enforce morality have confronted scholars from a jurisprudential point of view.

As a result of this controversy, the precise place of morality in law and in Kenyan law in

particular, needs to be found. There is a scintilla of legal scholarly work on the place of morality

in Kenyan law. Since morality is part and parcel of culture, the Kenyan society like any other

society has its own sense of morality as far as it culture is concerned and hence there is need to

clearly identify the natural place of morality in Kenyan law.

On a theoretical stand point this research intends to interrogate the legal enforcement of morality

including the difference between law and morality as well as the interrelations of law and

morality.

This research seeks to find out the moral content of Kenyan law. It also seeks to find out the

impact of such content to the issues of human rights. Furthermore, the research would also look

at the Kenyan jurisprudence as far as the moral content of Kenyan law is concerned. The

dissertation will also discuss case law in regards to the moral content of the Kenyan law and how

the courts have handled such cases. Finally the last chapter would include the conclusions and

recommendations that the researcher deems appropriate in accordance with the research

objectives.

Page 11 of 64

1.1 Background to the study

In today’s rapidly changing world, people from nations both rich and poor worry about losing

their traditional culture1. This entails the worry about their values, mores and morals and they

have to assert the need to protect it. Research has shown that 87% of Kenyans worry that their

ways of life is being lost while 89% feel that their way of life must be protected2 against “foreign

influence’’. How this can be protected is what this research seeks to find out. Could this be done

through legislation based on moral principles?

Morality has been seen to be agitated for on religious grounds such that faith in God is a

necessary foundation for morality and good values and as a result majority belief for example,

that society should reject homosexuality.3This has been sharply contrasted with Western Europe

in which majority say homosexuality is a way of life that should be accepted by society.

With this glaring empirical statistics on the question of morality, it is the researcher’s concern

that the real place of morality in Kenyan law needs to be ascertained.

While law as an art has been defined in the various ways and perspectives as shown by the

various schools of thought,4 morality on the other hand has not been defined legally.

Paradoxically, the precise legal definition of morality remains as virtual as its natural nature on

what each individual member of any given society perceives what is moral in a given situation.

Morality is derived from the Latin word Mos, plural Mores which mean customs or people’s

values and traditions; people’ heritage or ways of life and conduct in a given community. Moral

values vary from community to community and from time to time.5 Among people who share a

common heritage or have similar cultures or religious beliefs, some of these values cut across

sections of the various communities.6

1 The Pew Global Attitudes Project, 47- Nation Pew Global Attitude Survey: World Publics Welcome Global Trade

– But not Immigration, October 4, 2007 page 33. 2 Ibid.

3 Ibid. For example, in all 10 African countries included in the study, at least seven-in-ten respondents agree with the

statement “It is necessary to believe in God in order to be moral and have good values.” 4 See the Legal Positivist school of thought, Natural law school, Historical school, Sociological School, Legal

Realism and Marxist School of thought. 5 Rev. Prof John Mary Waliggo, Law and Public Morality in Africa: Legal, Philosophical and Cultural Issues (A

paper discussed at the ALRAESA Annual Conference, Imperial Resort Beach Hotel, Entebbe, 4th – 8th September,

2005). 6 Ibid.

Page 12 of 64

The Oxford dictionary defines morality as the principles concerning right and wrong or good

and bad behaviour; the degree to which something is right or wrong, good or bad. Therefore

morality is concerned with right or wrong or good and bad behaviour in human societies.

Morals refer to the standards or principles of good behaviour, especially in matters of sexual

relationships. Mores on the other hand are the customs and behaviour that are considered typical

of a particular social group or community.

As far as the scholarly world is concerned, there is one cardinal, perennial and important debate

and controversy in the history of socio-political and legal thoughts in general which centers on

the relationship between law and morality.7 As a consequence of this glaring fact, this paper

seeks to address the gap in this regard.

This paper will further delve into the practical and contextual discourse on the Kenyan

understanding of the place of morality in law and how the same has been contextualized in the

real legal system of Kenya. Whereas most of Kenya’s legal system is technically based on the

Western legal philosophy and legal traditions,8 it is the researcher’s commitment that a true

Kenyan conception of the real place of morality in law is established.

1.2 Statement of the Problem

The question of the place of morality in law is a jurisprudential one and as such, every legal

system is based explicitly or implicitly on some form of legal philosophy. Since law is a

manifestation of the values, inspirations and the aspirations of any particular society, there is

need therefore to concisely find out the place of morality in Kenyan law because most of

society’s values are mostly informed by moral correctness or moral principles. On the other hand

the aspect of inspirations and aspirations of a society which the law manifests need to be

considered as well and thus the question of human rights comes in which for instance the

minority rights of gay and lesbians falls under. Therefore the determination of the place of

morality in Kenyan law would help the Kenyan society to be in a better position to appreciate the

need to have its law capture its values, aspirations and inspirations. This is important since it

would help cool down the embers of non adherence to the law or rule of law in particular

7 See Prof. William Idowu, Law, Morality and African Cultural Heritage: The Jurisprudential Significance of the

Ogboni Institution, Nordic Journal of African Studies 14(2): 175-192 (20005). 8 Kenya has borrowed her legal Tradition from Britain as a direct influence of colonialism. A critical look at the

Judicature Act Cap 8 Laws of Kenya reveals this incessant reality. The said Act through the Reception Clause

directly imports English Law into Kenyan territory.

Page 13 of 64

because Kenya’s legal system is borrowed from her colonial master Britain and as a result there

is a notion that the Kenyan law may not at all reflect the values, aspirations and inspirations of

the indigenous Kenya people.

1.3 Objectives

The objectives of the research in particular would be first to find out the place of morality in

Kenyan law, second, to find out the moral content of Kenyan law, thirdly, to interrogate the

contextual impact of morality on human rights , fourthly, to interrogate the enforcement of

morality and finally to find out the difference between law and morality.

1.4 Hypothesis

The research would proceed on the rebuttable assumption that there is a concise place of

morality in Kenyan law in which there is an intricate web or link between law and morality

whereby moral principles inform some legislation, law protects moral principles through

legislation and the subsequent enforcement of the same legislation. The second rebuttable

presumption will be that the moral content of law has a practical impact on human rights and that

morality can be legally enforced.

However the study will not presume an absolute relationship between law and morality since

there are points of parallelism in which law and morality may actually be the antithesis and

anathema of each other.

1.5 Significance

The study is significant since there is a vital need to come up precise place of morality in Kenyan

law. The study is therefore justified since it tries to identify and interrogate the theoretical and

practical aspects or conception of the place of morality in Kenyan law. This would encourage the

legislators, the judiciary and policy makers to appreciate the need to adhere to the principles of

constitutional autochthony, constitutionalism, human rights and the rule of law.

The study is also significant since it will help the Kenyan citizens to appreciate the need to have

their values, inspirations and aspirations enshrined in the law. With a wide gap in the literature

particularly on the place of morality in Kenyan law, the findings of the research would help fill

Page 14 of 64

and narrow this gap accordingly and will also open other avenues for continued research on this

discourse.

1.6 Scope

The research will be done in accordance with the timelines and guidelines stipulated in the

Research Paper Guidelines 2013 and further instructions by the supervisor. And it will

particularly be carried out between May and July, 2014.

The research will particularly delve into the place of morality in Kenyan law from a purely legal

point of view, notwithstanding the fact that there may be instances where religious and

sociological point of view may be cited though in a limited manner.

Precisely, the research limits its focus on the legal enforcement of morality , the difference

between law and morality, the moral content of Kenyan law, the contextual impact of morality

on human rights; and as well as the jurisprudence of Kenyan Courts in regards to the moral

content of the Kenyan law. The researcher will extensively rely on the Kenya Penal Code Cap 63

and other related Statutes.9

1.8 Theoretical framework

This research would major on four schools of thoughts namely: the positivist, the natural law, the

historical and the realist schools of thought. The paper will be centred in the Positivist school

because it falls on the second tenet of jurisprudence which stipulates that law is that is properly

promulgated under the rules or in accordance with the legal system of a particular society.

With the positivists approach, the relationship between law and morality is made clear that

whatever is in law whether moral or not is law and every citizen has a legal obligation to obey

that law the argue argument that it may be against his or her moral convictions to obey such a

law is immaterial. On the other hand, a written law may advance a moral principle which in turn

propagates the observance of such a principle through the enforcement of such a law. The natural

school will also be of help in the research paper. The naturalists have always argued that any law

9 Public Officers Ethics Act, The Children Act, The Anti Corruption and Economic Crimes Act, The Criminal

Procedure Act, The Sexual Offences Act, 2006, Judicature Act Cap 8, Laws of Kenya, The Advocates Act, the

Leadership and Integrity Act and The Constitution of Kenya, 2010.

Page 15 of 64

that is not consistent with natural law is no law. This kind of postulation by naturalists is of

importance to establishing the “ought” of the law and its impact on the “is” of the law. The

logical conception of law is believed to originate from the natural law concept and this research

will benefit from the application and interrogation of the natural school of thought.

Since the paper is also concerned with the place of morality in Kenyan law, a combined scrutiny

of the two schools of thought will be of great value and contribution to the research findings.

Realists are of the view that law is what the judges say it is and as a result the paper too will be

concerned with the realities on the ground when written law is being interpreted and enforced

which can help the researcher to handle the issue of enforcement of morality.

The historical school is yet another theory which the research paper will heavily rely to back the

urge and the need to establish the place of morality in Kenyan law. This is so because proponents

of the historical school argue that law develops from the cultural, historical and national/social

character of the volk geist. This theory would be analysed to critique the current legal system of

modern state of Kenya and will aid in the recommendation in lieu of the research findings.

Page 16 of 64

1.9 LITERATURE REVIEW

Morality implies a basic reference to the distinction of what is right from what is wrong.10

Various moralities differ as to the extent of what is right and what is wrong, or good and bad,

and therefore, each community, nation or society may have its own morality, according to the

local beliefs, whether social, political, religious or other.11

Most African legal concepts of law is that it is derived from a powerful deity which makes it a

moral duty to obey the law of a particular society, thus for law to be obeyed there must be a

moral duty to do so. Among the Yoruba of Nigeria for instance, Prof. William Idowu argues that

their (Yoruba) jurisprudence manifests a theistic metaphysics in which the legal order or the

moral are by- products or epiphenomenon of the relative interference or actions of the gods.

Prof. William Idowu further argues that “the Yoruba jurisprudence and system of laws reflected

or manifested a fluid and creamy display of positivism and naturalism, although with a tilt

towards naturalism in its final composition.” It is apparent that little, if any, literature is present

to deduce what Kenyan legal conception of law and morality is. Consequently this would require

the comparative African legal studies on the relationship between law and morality since it

appears that Nigeria has for got a clearly documented literature on the place of morality in the

law. This is what is fundamentally missing in regards to the Kenyan society. It is worthy to note

that this argument is meant to raise the concerns of the need to have a known theory of law12

on

the place of morality in Kenyan law.

The concept of law and morality in a typical African set up have a common denominator, that is

both law and morality serve the will and whims of the religious discourse.

In nearly all African societies, the law reflects their cultural, ideological, moral and religious

aspirations although Prof. Tom Ojienda argues that most current legal systems of African

modern states are borrowed from their former colonial masters.13

Prof.Waliggo seems to agree

with Ojienda by arguing that “in many African countries there are still many laws in the statute

books that are a legacy of the colonial masters during domination over discrimination against

10

See Yves Caron, The Legal Enforcement of morals and the So called Hart- Devlin Controversy, McGill Law

Journal volume 15, No.1, 10-47 11

ibid 12

For Further details on Whether Kenya‘s constitution, now repealed has any known theory of law, See Pheroze

Nowrojee, (1997), Five Reasons why the Constitution of Kenya must be changed’’. 13

See Prof. Tom Ojienda and Katarina Juma, (2011) Professional Ethics, page 27.

Page 17 of 64

Africans natives.’’14

According to Waliggo, the Africans generally did not play any part in their

making and that the aims of the laws were not based on public morality of the people governed.

Waliggo’s concerns appear to major on the law making process and particularly on whose

morality the said laws were regulating.

However the position remains the same in the typical African traditional sense in which the law,

as a means of social and communal control, and reflects their cultural, moral and religious

aspirations of the people, cannot be differentiated from morality as enunciated in the words of

Idowu:

“In the traditional sense, law and morality are not differentiated especially as means of social

and communal control. This is because they not only reflect and embody traditions of the people,

but also in the sense that they have over the years come to represent a vital, moving force or

aspect of traditional culture’’.15

Prof. H.L.A Hart argues that “it is in no sense a necessary truth that laws reproduce or satisfy

certain demands of morality, though in fact they have often done so’’.16

Despite the contrary

position in an African traditional set up, law and morality must necessarily coincide. Positivists

like Hugo Grotius indeed concede that law embodies principles of moral reasons and is not a

product of authority alone.17

Although law is pegged on the legislative authority, that authority

may be informed by moral principles or reason.

Savigny argues that law is the expression and the language of the spirit of the people. According

to the volkgeist theory, law is the reflection and expression of a whole cultural outlook. The

spirit of a nation or people is the encapsulation of its whole history, the collective experience of

the social group extending back through the ages of existence. Iduwo argues that

“Law is not just an attribute of human corporate existence; nor is it a rigidly abstract notion. Law

reflects itself also as a cultural phenomenon admitting in its trail the characteristics of cultural

distinctions’’.18

While Savigny’s volkgeist theory may be true for an African traditional set up, it may not be so

with the modern African state with a plethora of different cultures which have little in common

but national geographical boundaries. Savigny’s volkgeist is faced with the enormous task of

14

John Mary Waliggo, Law and Public Morality in Africa: Legal, Philosophical and Cultural Issues. 15

Prof. William Idowu: Law, Morality and the African Cultural Heritage: The Jurisprudential Significance of the

Ogboni Institution, Nordic Journal of African Studies 14(2):175-192 (2005). 16

See H.L.A Hart’s Separability Thesis. 17

See Nigel E. Simmonds, (2008), Central Issues in Jurisprudence, pg 144. 18

See Chapter two below.

Page 18 of 64

explaining how the question of the wideness of culture to be used as a basis for the definition or

understanding of what law is. The fact that in any society there may be conflicting cultures

making it hard to decide which cultural view is the law to express and embody.

In an African perspective, the volkgeist theory has been the cause of the lack of a coherent

African jurisprudence since the large number of different cultures inhabiting the continent makes

it vulnerable to the criticisms faced by the volkgeist theory despite the fact that it is one of the

theories that best befits Kenya. On the contrary research on the effect of ‘transplantation’ of

laws from one society to another has suggested that the importation of foreign legal principles,

even from societies of very different cultures from the recipient society, may be successful as

long as the laws concern instrumental matters like commercial practices where there may be

strong incentives to accept change.19

This research however was not done in Africa and cannot

be used as such to justify the importation of foreign principles of law to Africa, especially

Kenya.

Savigny seems to be vindicated by Lipstein’s (1959) findings that areas of social relations that

reflect strong values are extremely resistant to the influence of imported legal principles

reflecting different cultural assumptions. The case in point in Africa is the question of

homophobia and polygamy. Western concepts on the prohibition of polygamy and

permissiveness to same sex marriages have found it hard to permeate the African moral fabric.

While bigamy is an offence in most African states penal codes, this fact has not deterred African

men from practicing polygamy. The Kenyan legislature has recently passed an Act20

that literary

and technically makes bigamy a moot offence. Ironically the reverse is true of same sex

marriages in which some 30 African countries have declared homosexuality as illegal, with

Nigeria and Uganda recently passed laws to punish gays with long prison terms.21

Lord Devlin in summary of his arguments in support for the legal enforcement of morality stated

that “Society cannot live without morals. Its morals are those standards of conduct which the

reasonable man approves’’.22

19

Roger Cottrell: The Sociology of Law: An Introduction, 2nd

Edition (1992), page 24. 20

The Marriage Act, 2014 Provides that marriages under customary are potentially polygamous. 21

Joris Fioriti: ‘Gays in Coted’Viore find haven on continent with hostile laws’, Daily Nation Tuesday February 11,

2014. 22

See Lord Devlin, Morals and the Criminal Law, (1958).

Page 19 of 64

The place of morality in law cannot be clearly established without a critical analysis of the

relationship between law and society although there may be differences between law and society

in terms of concrete details. Niklas Luhmann argues that:

“whatever the differences are with regards to the concrete details, law supports and confirms its

society. Society is described as adjusted externally, while law deals internally with conflicts, which can be

played down with a moralist-conformist attitude or simply postulated to be social structures from a critical

class theory perspective’’.23

Thus the basis of law is society and the basis of society is its morality such that a none moralist -

conformist attitude exhibited in or by any member of a particular society is considered anti

social24

and depending on the gravity of such an attitude, immoral.

The law in any social system is in fact a fundamental framework of the nature of all its form of

association and institutions25

such that if we know the law of any society, we have an excellent

outline of the nature of the social system as a whole, this may not be always true as per the

argument26

of Prof. Ojienda.

Law could be understood as a social and a political phenomenon about society in which it exists

and society comprises of the social, cultural, economic, religious, and moral components.

Therefore a clear understanding of a particular society’s laws is a good as a clear understanding

of all its components, morality included.

In traditional African societies, one finds that morality permeated every aspect of life and this

has to be reflected in the laws27

this is because morality, as understood in an African world view

was law in a sense that it regulates conduct and apportions obligations, rights and powers.

Waligggo argues that “In African society there is no clear cut distinction between law and

morality since the rules of conduct did amount to law’’. One can argue that before law existed

morality.

Hart has pointed out that the main difference between moral and legal responsibility is due to

substantive differences between the content of the legal and moral rules and principles, rather

than semantic distinctions. Law may have principles like strict or absolute liability while

23

See Niklas Luhmann, (2004), Law as a Social System, Oxford University Press. 24

Ibid. 25

Quoted in Roger Cottrell: The Sociology of Law: An Introduction, 2nd

Edition (1992), page 2 26

Supra note 11. 27

Supra note 7.

Page 20 of 64

morality’s concept of liability may be ubiquitous and depends on what is perceived by society as

a morally correct or right discourse.

As for Austin and Bentham, positive law is quite distinct from and its validity is in no way

dependent upon morals. However the argument between Austin and Bentham’s positive law

being distinct from morals does not reconcile with what happened during the Nazi Regime and

Apartheid South Africa. In the former’s situation those who persecuted the Jews under the laid

down positive law were later punished on the basis that their actions bucked by an ‘immoral’ law

were thus illegal. The same fate befell a German woman28

who had denounced her husband to

the Nazi Regime and was later punished because her actions which led to her husband deprived

of his liberty were immoral and pursuant to an immoral law.

During the Nuremberg Trials of 1945, one counsel, Joachin Von Ribbentrop for the defense

reacted bitterly in regards to the trials in the following words:

“You will see. A few years from now the lawyers of the world will condemn this trial. You can’t

have a trial without law.’’ The question elicited by this statement from the defense lawyer of the

defendants in the Nuremberg Trials, is if there was no law, on what ground or principles were the

Nazi regime leaders tried? And if there was law, can another law punish a person who observes

or acts in obedience to another law? These are some of the pertinent questions which positivists’

insistence on the separation of law and morals must answer to convince there critics otherwise.

In Apartheid South Africa, the law which established apartheid was frowned upon by the world

and South Africa was spurned and shunned by the world for having enacted and implemented a

morally incorrect legislation.

While the language of law and morals may be different, their impact on each other can easily be

felt. It is true that a society may declare certain acts or omissions as illegal because they are

inconsistent with their law while the same acts or omissions may be morally right and vice versa.

A section of society that may feel that a law is against their moral convictions can disobey, break

and even agitate for the repeal of such a law and on the other hand agitate for a law which tries to

protect their moral convictions to be enacted.

Lloyd argues that the explicit difference between law and morals is evasive and that the possible

way to differentiate between legal and moral norms is to adopt the thought of Kant by regarding

laws as prescribing external conduct whereas morals prescribe internal conduct in which case,

28

See Israel Vs Adolph Eichmann (1961)

Page 21 of 64

morals alone are concerned with subjective factors such as motive.29

The problem with is kind of

assertion is that both law and morality may be involuntarily observed by an individual thus

making it hard to categorically claim that external and internal conduct are governed by law and

morality respectively. Can the law or morality have their roles intertwined or switched as and

when necessary so that we have a mutual relationship between law and morality? The second

chapter of this dissertation would be geared towards answer such concerns.

Positivists have made justifications on why law and morality should be separate and distinct.

First, positivist argue that if law is not distinguished from morality, it would mean that every

lawyer and judge should denounce statutes that transgress the fundamental principles of

humanitarian morality, not as merely immoral or wrong but as having no legal character. This

argument may be interpreted to mean that moralists ought not to interfere with a properly

promulgated law since in essence they had an opportunity through the concept of public

participation to ensure that moral sentiments, values and principles are perhaps taken care of by

the legislation before it is enacted. Morality may not be uniform per se, what may be moral to

one society or person may not be moral to another, thus arguing that moralist would have

pursued their moral convictions during legislation process could be counter product since every

legislator might have his or her own sense of morality.

Positivists have failed to appreciate the fact that law in its character is: subjective to the

principle of territorial jurisdiction; universal in its application, coercive and contextually

conscious of its economic and political environment. Law therefore does not operate in a

vacuum and the incessant demand by moralists that law should reflect moral principles is

inevitably justified though. In this regard therefore, the literature on the place of morality in

Kenyan law is scanty, if any and as such a robust approach to that effect needs to be adopted

through the study of the jurisprudence from Kenyan court on the moral content of Kenyan law so

as to determine whether law and morality are indeed distinct per se.

It is clear that there is scanty literature on the place of morality in Kenyan law although there is

substantive literature generally on the relationship between law and morality, their differences

and interrelations. In fact the available literature has been discussed not in the Kenyan

perspective but in for example Nigerian and Ugandan. It remains to be seen that indeed law and

morality are two sides of the same coin.

29

M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, 8th

edition (2008) Sweet and Maxwell pages 42-43.

Page 22 of 64

1.9 RESEARCH METHODOLOGY

The methods to be used in the research to gather information will include the use of the library,

the internet searches of e-books, electronic journals and law reports, case law, close reading of

the textbooks on jurisprudence, a case study of some sections of the penal code of the Republic

of Kenya and other relevant statutes like the Judicature Act and the Constitution of Kenya 2010,

reading of legal articles in newspapers relevant to the topic of the research, following the media

on emerging issues on jurisprudence more specially interviews with prominent scholars in law.

The researcher will rely extensively on the desktop research method.

The research will use content analysis as a way of analyzing the data obtained from the library to

investigate the place of morality in law. The case study of the penal code of the Republic of

Kenya and the Judicature Act would be analysed as well. The data obtained from e-books,

electronic journals and law reports would also be analysed in a similar manner but with strict

cognizance of the need to verify the reliability and credibility of the source of such materials.

The researcher will heavily rely on the descriptive and evaluative form of data analysis

throughout the research paper.

Page 23 of 64

CHAPTER TWO: LAW AND MORALITY

2.0 Introduction

This chapter will focus on the relationship between law and morality that is, the intersection or

overlap between law and morality, their distinction and the legal enforcement of morality.

2.1 The overlap between law and morality

Every legal system is based explicitly or implicitly on some form of legal philosophy and it is

here we encounter moral and ethical questions.30

A perennial question of jurisprudence has been

whether there is a relationship between law and morality.31

The reality on the relationship

between law and morality is that both seem to antagonize and supplement each other.

A law may be passed against the moral principles of society whether consciously or

unconsciously and at the same time law may advance moral principles either consciously or

unconsciously, the consciousness or unconsciousness here being that of the legislator or law -

maker. This scenario can and do occur since both law and morality are gappy. Gardner argues

that “Morality is ‘gappy’ and sometimes needs law to fill the gaps’’.32

But the same is also true

in reverse. Often law is gappy and needs morality’s help to make it less so.33

In Zainab

Mohammed case no.4728 of 1998, Edward Wafula Ochoya defiled a standard three girl, Sheila

Mohammed and infected her with syphilis and HIV/AIDS on 27 November 1997. All evidence

adduced before the court pointed to the guilt of the accused. The presiding magistrate while

giving the judgement observed that:

“ In essence, he has literary sentenced a little girl to death and a slow and painful one at that.

He deserves the maximum sentence as provided by law. In deed in my view, the law is not

sufficient. He deserves more than that but the court’s hands are tied by the penal provision. I will

therefore award the accused the maximum sentence as provided by law”.34

30

Michael N.Mabururu, The Importance of Legal Ethics and Jurisprudence in Nation Building: The Kenyan Case.

See also Henry Odera Oruka, Practical Philosophy: In search of an Ethical Minimum (1997), East African Education

Publishers, Nairobi. 31

Ibid. 32

See John Gardner, Law and Morality, available at users.ox.ac.uk/~lawf0081/.../lawmoralityedited.pdf last

accessed on the 9th

of June, 2014. 33

Ibid. 34

The magistrate sentenced the accused to a 14 year jail term with hard labour and 20 strokes of the cane. Note that

the case was decided before the abolition of corporal punishment in Kenya.

Page 24 of 64

The learned magistrate’s comments were actually a lamentation on the inadequacy of the law to

deal with such extremely immoral and illegal acts but conceded that the law had limited the

courts to the sentences prescribed in the statute.

Gardner further argues that legal norms, like moral norms, often conflict among themselves, and

often as such conflicts cannot be resolved using legal norms alone. However, the aid of law to

moral gaps can be afflicted by the intermediaries of language and intention on the part of the

law- makers in such a way to frustrate its role as a filler of moral gaps. The issue of statutory

interpretations may come in such circumstances in which the judicial official may opt to interpret

the words of a statute using the mischief and the literal rule when handling a certain case where

there is a conflict of legal norms and that may have some moral connotations. Thus a judge’s

desire to use the law to help fill the moral gap is curtailed forthwith. According to Raz, legal

conflict and indeterminacy require extra-legal resources to overcome them;35

morality does not

enter the law by its own accord. By the nature of law, it always takes an official to turn a moral

norm into a legal one.36

Nigel argues that since the pre-existing law does not give an answer, the

judge must decide the case on the basis of extra- legal considerations (moral considerations) and

that in doing so he will establish a new legal rule.37

The entry of morality into law can best be

explained in the words of David Ingram when he stated as follows:

“The Nuremberg Tribunal and the war in Iraq suggest that morality might play some role in

our understanding of what law is. Even if International law does not apply to these two events,

moral law (natural) might. For one might argue, even if no settled human- made laws were

violated by the Nazi or by the invasion, moral laws might have been’’.38

The Nuremberg Tribunal and it trials might have been a creature of moral norms being turned

into legal ones. This can be inferred from the US Assistant Secretary of War, John McClow’s

statement when he said that the “Trials were done to raise international Standards of Conduct

35

See Raz, J. (1979). Legal Reasons, Sources and Gaps; In J. Raz (Ed.). The Authority of Law (pp. 53–77). 36

Ibid note 1.Gardner argues that it is rather rare for judges to fill gaps in this quasi-legislative way. In most legal

cultures it is a last resort. Instead judges usually fill gaps by engaging in legal reasoning. They combine existing

legal norms with other premises, including moral premises not hitherto recognized by law, to reach new legal

conclusions. 37

See Nigel E Simmons, Central Issues in Jurisprudence, (2008) page148. 38

David Ingram, Law: Key Concepts in Philosophy, (2006). Continuum International Publishing Group, London.

Page 25 of 64

and preserve the moral force behind the allied cause’’.39

However, one may argue that what

actually happened were a retrospective application of the law and a breach of the principle of ex

post facto laws. This is because under the Nuremberg Principles, which were formulated after the

commission of the alleged crimes by the Nazi Regime, Principle II provides that

"The fact that international law does not impose a penalty for an act which constitutes a crime

under international law does not relieve the person who committed the act from responsibility

under international law".

The overlap between law and morality is an intricate web that makes the two not to be concisely

separable or distinguishable. Lord Patrick Devlin argues that:

“The line that divides the criminal law from the moral is not determinable by the

application of any clear-cut principle. It is like a line that divides land and sea, a coastline of

irregularities and indentations. There are gaps and promontories, such as adultery and

fornication--which the law has for centuries left substantially untouched’’.40

This intricacy in the relationship between law and morality has to be handled in the flexible and

the objective application of the correct and most appropriate principles on how the law and

morality should interact in view to filling the gap in each of them. There can be no fast hand rule

that morality cannot be equated or related to law and neither is the reverse.

The aim of reasonable legislative regulation41

is sometimes the promotion of the moral welfare

of society. This is yet another manifestation of the overlap between law and morality in that

whereas law may serve its legislative and regulative purposes, the underlying tone is the

promotion of the moral wellbeing of society. While the laws do not operate in a vacuum and

must be supported with social efforts designed to advance public morality, they do play a key

role and can lead to moral reform. In the state of affairs where anarchy is the norm rather than

the exception, the occurrence of immoral acts or amoral set up is inevitable to be experienced.

Supposing country C, is a lawless state in which everyone does and omits as he or she deems fit,

of course the most notable set of offences that may be committed from law abiding state point of

39 See Paragraph IV C of the Memorandum of Proposals for the Prosecution and Punishment of certain War

Criminals and other offenders, 30 April 1945.

40 See Lord Patrick Devlin, Morals and the Criminal Law, (1958).

41 See Oposa vs. Factoran case; Abe vs. Foster Wheeler Corp (110 Phil.198, 203{1960}) .The Supreme Court of

Philippines further held that…..” the constitutional guaranty of non-impairment of obligations of contract is limited

by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare’’.

Page 26 of 64

view would be offences against: property (theft, arson and vandalism), the person (assault and

battery), life (murder, manslaughter, infanticide and suicide) and sexual offences like rape,

defilement, sodomy, bestiality and incest. Then from a moral point of view, country C is not only

a state with no sense of morality and therefore an immoral state, but also a lawless one. The

contrary is true. Supposing that country C, has got laws but these laws do not regulate any of the

above conducts or omissions, still country C can be considered an immoral law abiding state.

Steven Shavell argues that:

“law and morality work together to control a vast range of behaviour; notably, most crimes and

torts are not only legally sanctionable but are also thought immoral, and often so are breaches of

contract and violations of regulations’’.42

Legal rules, according to Shavell, can often affect our moral beliefs as well as the

operation of moral sanctions.43

An act which society once thought immoral or moral or

out of the scope of morality once criminalized can attract moral sanctions or approval as

well. For example, societies that legalise prostitution have no moral censure on

professional prostitutes when going about their business while those that do not legalise it

have moral authority to censure prostitutes and consider them and their customers as

immoral persons.

The overlap or the interrelation between law and morality is not a phenomenon whose existence

is not mere conjecture, it is certainty some times. When the Universal Declaration of Human

Rights was first adopted in 1948, most modern day African states were either in existence as

tribal nations or spheres of influence and colonies or as kingdoms. The urge to have an

instrument on human rights that is culture, traditional values and morality sensitive, did

propelled the African continent to come up with the African Charter on Human and Peoples’

Right,44

herein referred as the Charter. Despite the fact the instrument is a human and peoples’

rights one, the moral component of the “peoples’’ has clearly been taken into account. Article

17(3) of the Charter provides that “The promotion and protection of morals and traditional values

recognized by the community shall be the duty of the State’’. The critical question in view to

42

Steven Shavell, Law verses Morality as Regulators of Conduct, American Law and Economic Review V4 N2

2002 (227-257) 43

ibid 44

Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.

Page 27 of 64

comprehending the provisions of this article is: does the Charter obligate the state to promote and

protect the morals recognized by the community and if so, how can the state achieve or fulfill

this obligation? Is it by legal or other social means? The reasonable answer to this question is in

the affirmative because of the use of the word shall which is normally interpreted to mean

compulsory, non discretion or a must. The answer to the second part of the question is twofold.

First, it would mean on the face of it that the state is required to achieve this by legislation45

since the element of protection can most efficiently be achieved through legislation. Second, the

other possible answer would be that the state can meet this obligation of promoting and

protecting the morals of the community by say, social46

means like availing avenues for the free

observance of the moral norms of the community. Leaning on either of the two possible answers

to this question is controversy attributable to the overlapping nature between law and morality.

Morality has permeated the law to the extent that some of its principles have been used as the

one of the qualities47

or the standards which must be possessed by the custodians of law and

justice to some extent. One would wonder why a judge of the African Court of Justice is required

to be of high moral character48

rather than high legal intellect or capabilities and competence and

yet they are going to deal with legal rights and not moral rights? Perhaps the drafters of the

Protocol to the Charter were cognizant to the legal gaps49

alluded to by Gardner. One

fundamental truism about the relationship between law and morality is that law can be used for

both moral and immoral purposes.50

Thus the relationship between law and morality is one that is

confusingly paradoxical as Neil MacCormick observes as follow:

45

From the provisions of article 1 of the Charter, this is the legal position. Article 1 states that “The Member States

of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms

enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them’’.

46 Ibid. The social means could fall under the category of other measures contemplated by the drafters of the charter.

47 Article 11(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the

African Court on Human and Peoples’ Rights 1998, puts moral standing as one of the core qualifications of the

judges of the Court by providing that “The Court shall consist of eleven judges, nationals of member states of the

OAU, elected in an individual capacity from among jurists of high moral character and recognized practical, judicial

or academic competence and experience in the field of human and peoples’ rights.’’ See also articles 34 and 52of

the American Convention on Human Rights “Pact of San Jose, Costa Rica’’ (B-32). 48

Ibid. 49

Supra note 3. 50

This was Prof. P.L.O.Lumumba’s argument during his lecture on ‘Integration of Faith and Learning’ during the

opening ceremony of The 3rd

Annual Research Conference of Kabarak University held in October, 2013. He further

argued that during the era of slave trade, it was law that was used to justify such an immoral act and so were the

apartheid South African legal regime and the Nazi Germany. Surprisingly what the law in the 19th

Century

Page 28 of 64

“When evil is done in the name of law, the greatest evil is that whatever is done in the

name of law is also and inevitably done in the name of public morality. Hence it seems simply

inconceivable that appeals to law- even iniquitous law-can ever shed their moral load….or that it

will ever be thought other than virtuous, albeit at modest point on scale of virtue, for a person to

be ‘law- abiding’- even when the law by which he or she abides contains much of evil. By the

same token, the law breaker however conscientious will be stigmatized by the legal officials as a

moral wrong doer and a moral danger’’.51

Law has at some instances helped shape morality among that section of society whose moral

maturity is wanting or those who have the tendency to defy moral rules. Law is the primary

factor that influences moral standards especially by its use of force; this is because its regular use

of force and propaganda associated with it that establishes moral standards.52

Take for example

the offence of incest which is both morally and legally wrong under Kenyan law. Whereas one’s

sense of morality in regards to incest may be deficient, the legal sanction of law makes such a

person to be both morally and legally compliant in regards to the prohibited act of incest. It is

argued by Olivecrona that the general attitude to other persons’ property for example would be

unthinkable independently of law and legal machinery, and that if sanctions were removed man’s

morals would change profoundly.53

However, Olivecrona further argues that “in so far as thoughts of unlawful acts enter the mind

and appear attractive, they are more effectively counteracted by the involuntary moral impulse

than by cold calculations about risk’’.54

It seems that the first step in law compliance by a

person, according to Olivecrona is moral consciousness in which there is an involuntary self

critique that goes on in the mind of a person of what action whether lawful or not a person

intends to do. Therefore, moral norms aid in the observance of legal norms albeit not in all

situations.

sanctioned as legal has now been sanctioned by international law as illegal under the principles of Customary

international law in which slave trade, servitude and forced labour and genocide have been considered anti- thesis

for human rights. 51

Cited in P.Soper, Choosing a Legal Theory on Moral Grounds, (1986), {Social Philosophy and Policy, volume 4

(1)}; M.D.A Freeman, Lloyd’s Introduction to Jurisprudence, (2008), 8th

edition. See also MacCormick, H.L.A.

Hart, p.61. 52

Ibid p.1048. 53

Ibid. Also see K. Olivecrona, Law as Fact, (1939, 1st edition). 54

K. Olivecrona, Law as Fact, (1939, 1st edition).

Page 29 of 64

2.3 Distinction between law and morality

2.4 The language of law and morality

Both legal positivists and Natural law lawyers agree that law and morality are distinct. The

distinction lies in the substance and language of both law and morals in which law is

characterized by commands while morality is characterized by an appeal for reason and

humanity. The language of morals is one sort of prescriptive language55

whose most important

use is moral teaching. The language of morals being prescriptive, prescribes what should be done

by use of words like “ought’’, “good’’ and “just’’. Morals prescribe how one should behave or

conduct oneself in any particular circumstance, for instance one ought to help his parents in old

age because it is good and just to do so. Law on the other hand is an amalgamation of both

prescriptive and proscriptive language. In the former, the law prescribes what a person must do

backed by a determinate sanction or penalty while in the latter law dictates what a person should

not do at certain instances failure to comply leads to sanctions in the form of penalty. The

researcher believes that procedural law is couched in a prescriptive language while the

substantive law is in the proscriptive language. From the prescriptive and proscriptive language

of law, law creates rights, imposes obligations, grants permissions, powers, gives rise to

liabilities and defines the limits of those rights, obligations, permissions, powers and liabilities.

Lord Devlin argues that “The criminal law is not a statement of how people ought to behave; it is

a statement of what will happen to them if they do not behave; good citizens are not expected to

come within reach of it or to set their sights by it, and every enactment should be framed

accordingly’’.

Morality from its prescriptive language therefore imposes an undefined obligation with no rights,

powers and permission to act or not to act in a certain way. What morality requires to be

complied with can only and only be omitted where morality, justice and logic so dictate.

Morality unlike law which is made by the legislator has no specific maker, although society in

general is the de facto maker and custodian.56

55

See R. M. Hare, The Language of Morals (1952) Part I. 56

Society often subject those perceived to be immoral to social sanctions like ridicule, mockery, banishment from

society among other social control mechanisms.

Page 30 of 64

2.5 Substantive distinction

The substantive distinction between law and morality entails the enforcement of law and

morality. Enforcement of law has got three stages which include the identification, arrest or

reporting of the violator to the state.57

This can be done by the police or private58

individuals

whose legal rights have been violated. The violator is the taken to a court of law for adjudication

where his or her guilt is determined and finally sentencing or penalization based on the guilt of

the violator occurs. The enforcement of morality on the other hand comes about through the

internal incentives of guilt and virtue for obeying the (moral) rules and guilt of not doing so.59

Since morality has society and human reason as its sources, the external incentives also help in

enforcing morality since a person would for instance if he thinks that others are observing his

conduct who would reward with praise if he does good and chastise or rebuke him for not doing,

would do good- comply with a moral rule. Unlike morality that rewards obedience and punishes

disobedience with its rules, law mostly concentrates on penalizing those who disobey its rules. In

other words legal rules are meant to promote socially desirable conduct and to discourage

socially undesirable conduct while moral rules are tailored towards rewarding socially desirable

conduct as well as discouraging socially undesirable conduct.

Whereas the enforcement of legal rules has formal structures,60

morality lacks this. Society metes

out disapproval or approval when and where a moral rule is breached or complied by an

individual and the process is instantaneous.

Legal sanctions some times are stronger than moral sanctions. For example fining or

incarcerating a wrong doer would make one to desist from committing crimes or breaching

moral rules than mere disapproval or rebuke of the same. Shavell argues that moral sanctions are

unable to prevent bad conduct through incapacitation of individuals, which is something

accomplished by the legal sanction of imprisonment and that an invaluable tool for reducing bad

conduct that is available under the law is absent from the moral arsenal.

57

Supra note 12 58

Section 34(1) of the Criminal Procedure Code Cap 75, Laws of Kenya empowers private person to arrest any

person who in his view commits a cognizable offence, or whom he reasonably suspects of having committed a

felony. 59

Supra notes 12 and 27. 60

This entails the police, prosecutors both public and private, the judiciary and the legal fraternity.

Page 31 of 64

Shavell’s argument may not be absolutely true since the internal inceptive of guilt can be the

primary source of deterrence of not only breach of moral rules but also legal ones. One can only

breach a legal or moral rule after his or her sense of guilt has been clouded by the desire or

tendency to breach the legal or moral rule. A good example is terrorists or passionate murders

that kill, destroy and maim at will despite the fact that such actions would make them liable an

execution or a life term.

While there may be no physical incapacitation by moral rules, there may be psychological

incapacitation as a result of the human sense of guilt created by the human consciousness of right

and wrong, bad and good. A person whose conduct has been rebuked or disapproved of would

psychologically be intimidated and incapacitated to repeat the same conduct that has been

declared by society as being against moral rules. Of course this may not be true for typical

recidivists.

While there exists the difference and overlap between law and morality, the Barotse

jurisprudence which cites morality as one of the sources of law postulates that morality forms

part of the nature and the foundation of law and hence one may reasonably argue that law is not

separable from morality.61

2.6 Legal enforcement of morality

The legal enforcement of morality has been a controversy for the last fifty years or so. This

controversy has been between the proponents of pro moral and pro liberty welfares of the society

and individuals respectively. By pro moral I mean those who want the state to legislate on

morality for the protection of the moral welfare of society and by pro liberty I mean those who

advocate for a restraint to the legislation of morality in areas bordering individual liberties.

Even Lord Devlin in his lectures on the enforcement of morals seems not to be bothered to

clarify on what this concept entails. Yves Caron argues that the legal enforcement of morals

means, in practice, the separation of crimes from sins and that there are two main instruments to

61

See Iduwo William, Eurocentrism and the Separability-Inseparability Debate: Challenges From

African Cultural Jurisprudence, The Journal of Pan African Studies, vol.2, no.9, March 2009 pages 123- 150.

Barotse is a tribe in Northern Rhodesia, now Zimbabwe.

Page 32 of 64

ensure the enforcement of morals: statutory legislation and judge-made law. The inevitable

conclusion is that should the legislature fail to enforce morals then the judge-made law aspect

would fill in the gap. But when the legislator remains silent on some aspects of the legal

enforcement of morals, the courts have often stepped in, and reaffirmed their right and duty as

custos morum of the people.62

The effect of the courts doing so is of paramount importance since

they are the last of institutions of society to give an authoritative judgement when society’s

values, moral norms or legal rules are in conflict and put to scale.

The debate on whether or not to legislate on morality was set up following the release of the

Wolfenden Report (1957) on Homosexual Offences and Prostitution has been perpetuated by

what came to be called the Devlin – Hart Debate. I shall briefly discussion the debate between

Devlin and Hart in a view to finding out the appropriate direction which the debate should take

in regards to the place of morality in law. As previously observed,63

law and morality more often

than not overlap, complement, supplement and antagonize each other; an objective analysis of

the debate on legal enforcement of morality will do justice to the ongoing uncertainties in the

exercise and the preservation of public morality and societal integrity by both proponents of

societal moral welfare and individual liberties respectively.

Lord Patrick Devlin, a distinguished jurist in opposing some of parts of the Wolfenden Report

argued that the criminal law64

had over the centuries been concerned with keeping the peace and

little if at all, sexual morals and that it would be wrong to infer from that that it had no moral

content or that it would ever have tolerated the idea of a man being left to judge for himself in

matters of morals.

There are some principles upon which the criminal law must be based upon to enforce morality

since an offence against an individual is also an offence against the society as a whole. While

society may not be physically injured, its moral foundations may be. The offence of murder is

one such example in which an individual may consent to the termination of his or her life by the

murderer but society’s moral foundation on the sanctity of human life will be injured.

62

See Yves Caron, The Legal Enforcement of morals and the So called Hart- Devlin Controversy, McGill Law

Journal volume 15, No.1, 10-47; Shaw vs. DPP 91962) AC 220 House of Lords. 63

Supra notes 3 and 4. 64

The criminal law of England.

Page 33 of 64

Devlin argues that

“There is only one explanation of what has hitherto been accepted as the basis of the criminal law

and that is that there are certain standards of behaviour or moral principles which society requires

to be observed; and the breach of them is an offence not merely against the person who is injured

but against society as a whole’’.65

Society should therefore enforce moral principles which society has required every of its

members to observe since any non compliance to moral principles is not only considered to be

detrimental to alleged victim of such an offence but to society as well. In most common law

jurisdictions for instance, a criminal case against an individual is taken to be a contest between

the state and that accused rather than the accused versus the victim of the alleged crime or

offence. The state as an agent of society takes it upon itself to prosecute those who commit

crimes. This is a fundamental nexus between the societal interest in moral principles that the

criminal law advances or seeks to enforce.

Devlin argues that society has a right to pass moral judgement that is, the judgement about what

is good and what is evil. This judgement must be a collective one- only when society is affected

without which the criminal law will not intervene. He contends that since society has the right to

pass a moral judgement which is a collective one, there is no valid reason why society cannot use

the “weapon’’ of the law to enforce such a judgement.

According to Lord Devlin, public morality derives from the concept that society is a community

of both political and moral ideas in which society determines how its members should govern

and conduct themselves which can only be achieved through the law.

“This view—that there is such a thing as public morality—can also be justified by a priori

argument. What makes a society of any sort is community of ideas not only political ideas but also

ideas about the way its members should behave and govern their lives; these latter ideas are its

morals. Every society has a moral structure as well as a political one: or rather, since that might

suggest two independent systems, I should say that the structure of every society is made up both

of politics and morals’’.66

65

See Lord Patrick Devlin, Morals and Criminal Law, (1958). 66

ibid

Page 34 of 64

Consequently a society that is not a community of ideas cannot hold together as society.

Substantial changes in the arrangement of shared ideas may result in the total transformation of

such society.

The need for the enforcement of morality is pegged on the right of society to protect itself from

dangers of disintegration in terms of its moral fabric, institutions67

and the harm caused to its

members. This is because immoral behavior threatens the long-term integrity of society.

There can be no strict limit to the right of the state to legislate on immorality since the essence is

to protect the moral integrity and institutions of society. Devlin rightly asserts:

“I think, therefore, that it is not possible to set theoretical limits to the power of the State to

legislate against immorality. It is not possible to settle in advance exceptions to the general rule or

to define inflexibly areas of morality into which the law is in no circumstances to be allowed to

enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or

without’’.68

Society may at some point in time become tolerant to some certain immoral acts. When this

happens the law ought to be relaxed according to the level of tolerance and danger posed to

society. According to Devlin, moral standards do not shift and in any new matter of morals the

law should be slow to act.

Devlin argues that the content of moral legislation should be determined by what he calls “public

morality”. Devlin’s public morality is not merely the majority position that could be determined,

for example, by a random public opinion poll. Public morality is the view held by what he

alternatively calls the “reasonable man” or the “right-minded man”.69

The need to legislate on

morality should be balanced with the rights and interests of others.

While society may be concerned about its moral fabric, the rights of an individual should be

taken into account in the process of legislating on certain immoral acts so long as they are not

harmful to others, detrimental to the moral integrity and well being of society. There must be

toleration of the maximum individual freedom that is consistent with the integrity of society.70

67

See William Miller, Conservatism and the Devlin- Hart Debate, International Journal of Politics and Good

Governance Volume 1, No. 1.3 Quarter III 2010. 68

Supra note 34. 69

Supra note 36. 70

Lord Devlin here tries to suggest a neutral ground in law within which the rights of a person and the need to

protect society’s moral integrity should be adopted and should act as a guide to the law makers rather than the rule.

Page 35 of 64

Lord Devlin seems to be alive to this aspect of the conflicting interest of the society and those of

an individual person. Devlin argues that “Morality is a sphere in which there is a public interest

and a private interest, often in conflict, and the problem is to reconcile the two’’.

Hart attacks Devlin’s assertions on the basis that criminalizing behavior on the basis of the

opinions or moral intuitions of the majority will lead to unjust oppression of minorities.

Hart argues that such restrictions restrict society from evolving naturally in terms of its citizens’

moral beliefs and practices. Professor Hart suggests that “harm to others’’ is the only purpose for

which the law may be imposed on individual liberty. What he fails to appreciate is the harm to

others he is advocating for as the basis for the criminalization of certain acts is in itself relative

and presupposes a complete set of value judgments that will be found in each society's own

structure and inner morality.71

Hart does not specify what kind of harm caused to individuals that

the law should seek to protect members of the society. Is the harm be physical (bodily),

psychological, mental or moral? Morality could embody the prevention of harm to others in any

of the types of harm (physical, mental, psychological and moral).

Lord Devlin has been persuasive and he literally made the debate on whether law should enforce

morals to spread to House of Lord in the case of Shaw vs. DPP.72

In this case the appellant

published a “ladies directory’’ which listed the details of prostitutes, the services they offered

and nude pictures. He could charge the prostitutes a fee for inclusion and sell the directory for a

fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of

prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on

grounds that no such offence of conspiracy to corrupt public morals existed. The House of Lord

dismissed the appeal and hence created a new crime.

Lord Viscount Simonds stated:

“In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a

residual power to enforce the supreme and fundamental purpose of the law, to conserve not only

the safety and order but also the moral welfare of the State, and that it is their duty to guard it

against attacks which may be the more insidious because they are novel and unprepared for. That

is the broad head (call it public policy if you wish) within which the present indictment falls. It

matters little what label is given to the offending act. To one of your Lordships it may appear an

affront to public decency, to another considering that it may succeed in its obvious intention of

provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it

71

Supra note 31. 72

(1962) AC 220 House of Lords.

Page 36 of 64

aptly described as the creation of a public mischief or the undermining of moral conduct. The

same act will not in all ages be regarded in the same way. The law must be related to the changing

standards of life, not yielding to every shifting impulse of the popular will but having regard to

fundamental assessments of human values and the purposes of society”.73

Lord Viscount does not only say that the law should enforce morals but also that courts of law

have indeed the residual power to enforce the law to protect the moral welfare of the state. It is

curious to see how the House of Lord asserts that they have the said residual power of

enforcement of moral welfare of the state. Even Lord Reid while dissenting conceded that the

courts of law indeed have the vestigial power to protect the moral welfare of the state.

Lord Reid in his dissenting opinion stated:

“Even if there is still a vestigial power of this kind it ought not, in my view, to be used unless

there appears to be general agreement that the offence to which it is applied ought to be criminal

if committed by an individual. Notoriously there are wide differences of opinion today as to how

far the law ought to punish immoral acts which are not done in the face of the public. Some think

that the law already goes too far, some that it does not go far enough. Parliament is the proper

place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient

support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to

tread it is not for the courts to rush in.’’74

Lord Reid seems too scared by the controversial nature of the legal enforcement of morals and

seeks to hide himself behind the veil of separation of powers by insisting that parliament was the

right place for intervention and yet he admits that parliament can fear treading in such matters.

The argument that where parliament fears to tread the courts should not rush in is wanting of the

core function of the courts of law to interpret what the law is.

Courts of law are there to determine disputes, in the Shaw case, it was either to dismiss the

appeal or allow it. The mere fact that parliament has shied away from such controversial matters

does not deny the courts of law the legal authority to determine the case either way.

Consequently the majority decision in the Shaw case essentially nullified the Wolfenden Report

Recommendations that the private morality of individuals should not be the law’s business.

73

Ibid. 74

Supra note 73

Page 37 of 64

Yves Caron argues that “the concepts of "harm" and “others" can only by appreciated through a

set of relative values, which in turn must depend on a given notion of society as a whole and as

composed of individuals’’.75

Gerald Dworkin agrees with Devlin when it comes to the role of the criminal law in enforcing

morality. The rationale for the criminal law is to ensure that what society forbids or requires that

it ought not to be done by people are minimized accordingly. The role of the criminal law is not

to condemn whatever wrong one has committed but that which is prohibited from commission or

omission by an individual. Dworkin argues that “The criminal law is an institution whose central

rationales include making it less likely that acts that ought not to be done are not done and

serving as a vehicle for condemning those who do what ought not to be done’’.76

The Devlin-Hart Debate has shaped the direction and the extent to which society has continued

to enforce morals and tolerate immoral conducts. What arose out of the debate was a lack of a

thematic approach to the legal enforcement of morality. Hart appears to suggest that if law were

to enforce morals it should do so to the extent that personal liberties are not interfered while

Devlin on the other hand agitates that since society has a right to pass moral judgement and the

right to preserve it integrity and moral fabric, the state should not be limited on legislating

morals to the extent that personal liberties that infringe on the moral norms or standards

approved and cherished by a particular society should be punished by use of the criminal law.

Even in traditional African set up law is used to enforce morality.

In West Africa for instance, secret societies tend to operate as a sanction for the observance of

the law and one of them, like the Oro and the Ekemeku, are police societies which act as

guardians of public morals and punish offenders.77

Conclusion

The fairest position in view to ending this unending debate is to take cognizance of the fact that

law is all about order, denunciation of the conduct that society generally deems it is bad,

75

See Yves Caron, The Legal Enforcement of Morals and the So-Called Hart-Devlin Controversy, McGILL

LAW JOURNAL No.1 vol15 pg 10-47, at page 30. 76

See Gerald Dworkin, Devlin Was Right: Law and the Enforcement of Morality, 40 Wm. & Mary L. Rev. 927

(1999), http://scholarship.law.wm.edu/wmlr/vol40/iss3/11 77 See J. H. Driberg, The African Conception of Law, Journal of Comparative Legislation and International Law,

Third Series, Vol. 16, No. 4(1934), pp. 230-245;

http://www.jstor.org/stable/753856 .Accessed: 30/01/2014 05:33

Page 38 of 64

improper, disorderly and immoral. Devlin is right to assert that society has the right to pass moral

judgement and consequently punish through the use of the criminal law, those acts that it

perceives immoral. While there is need to respect and uphold the essential rights of private

individuals done in their private premises but not capable of infecting and infiltrating into the

general public, society through the state must be capable of periodically legislating on what

society collectively perceives as immoral conduct.

Morality, on the whole, would then be what each society, in its own time is prepared to accept as

moral, and since each society determines its own legal system, the relationship between law and

morals is thus the object of a constant renewal, notwithstanding some elements of continuity.78

In regards to the relationship between law and morality, the two complement and supplement

each other despite the fact that they are distinct in terms of language and substance as discussed

herein above. It is clear that moral sanctions are not enough to deter the commission of immoral

acts and thus the legal force of law becomes handy bearing in mind the fact that both law and

morality are “gappy”. This is because morality is a source of law and as such moral principles

that society requires to be observed must be legislated upon and enforced.

The basis for the legal enforcement of morality is the fact that society has the right to protect its

moral fabric as well as the right to pass moral judgement on an individual sense of morality. This

moral judgement passed by society must be a collective one as opposed to the majority’s view of

morality over the minorities’. Hence the content of moral legislation must be determined by

public morality which is the view held by the reasonable man or the right-minded man,

reasonable in the sense that any other ordinary man in his position and circumstances would

consider certain acts or omissions as being moral or immoral with a sense of disgust or approval.

Consequently courts of law may have the residual power to enforce morals even where

parliament seems to have shied away.

78

Supra note 31.

Page 39 of 64

CHAPTER THREE: MORAL CONTENT OF KENYAN LAW

2.0 Introduction

The moral content of Kenyan law can be for the purposes of this research defined as the

instances in Kenyan law where the same provides for moral regulation or has attempted to

regulate morals. This chapter will focus on the moral legislations and moral principles that the

Kenyan law has encompassed. This has been done through the analysis of statutes that have

some of their provisions touching on areas bordering on morality. The constitution too will be

analysed in regards to its provisos which deal on morality.

The Constitution of Kenya 2010 has some of its provisions which deal with morals. The

preamble itself is the first part in the constitution which acknowledges the supremacy of the

Almighty God. It is believed that morality has its foundation in faith in God.79

Kenya being a

God fearing state can be argued to have morality reflected in its laws. During the campaigns

on the referendum of the new constitution the Catholic Church was on record for having

opposed the constitution because it was against the provisos of article 26(4). This clause in

particular allowed abortion in certain circumstances and even contemplates legislations

permitting abortion. In regards to this clause Cardinal John Njue said:

“We cannot in good conscience advise Kenyans to vote for the proposed constitution of Kenya

with the hope of future amendments. We also cannot in good conscience leave the matter to

Kenyans without giving our considered advice in moral matters so that they can form their

consciences in accord with the will of God expressed to us through the moral laws that form part

of our cherished Christian tradition’’.80

Moral standards have been used as one of the qualifications for one to vie for the post of

Member of Parliament. Article 99(1) (b) stipulates that a person is a eligible for election as a

member of parliament if the person satisfies any educational, moral and ethical requirements

prescribed by the this constitution or by an Act of Parliament. The ethical requirement

79

See Chapter One of this dissertation on background to the study. 80

See Francis Njuguna, Bishops say they will advise Catholics to oppose Kenyan constitution, Catholic News

Service, 12th

May 2010, http://www.catholicnews.com/data/stories/cns/1001995.htm, last accessed on the 3rd

of July,

2014.

Page 40 of 64

contemplated in the said article is an emphasis of the provisions of article 79 of the Constitution

which mandates Parliament to make legislation to establish the Ethics and Anti Corruption

Commission. The use of the traditional dispute resolution mechanisms have been subjected to the

test of morality and justice such that traditional dispute resolution mechanisms shall not be used

in a way that is repugnant to justice and morality or results in outcomes that are repugnant to

justice or morality.81

3.1 Offences against morality

Chapter XV of the Penal Code82

herein referred to as the Code has its heading as “Offences

against Morality’’. Section 146 for instance makes it a felony for any person to have unlawful

carnal connection with an idiot or imbecile. Interestingly the penalty is too harsh.83

With the

previous discussion on the enforcement of morals in the previous chapter, the drafters of the

Penal code might have been influenced by Devlin’s argument of the society’s right to preserve

its integrity through the criminalization of perceived immoral acts. The said section contemplates

the idiot or imbecile consenting since it is a defense that an accused did not know at the time of

the act that the person was an idiot or imbecile.

Under section 151(1) of the Penal Code it is a criminal offence to detain another person in any

premises or in a brothel against his or her will with the intention of having unlawful sexual

connection. The protection of the vulnerable members of society has been the force behind the

criminal law and as such persons under the ages of 16 and those above 18 are deemed to have

been detained for immoral purposes of unlawful sexual connection against their will or against

the will of his or her father or mother84

if they are detained for the purpose of having unlawful

sexual connection with any person, whether any particular person or generally.

The moral content of Kenyan law is not only widely expressed but also widely enforced or

legislated upon to the extent that living on the earnings of prostitution by every male person in

Kenya is criminal offence.85

Living with or being habitually in the company of a prostitute and

being in control of her movement is considered living on the earnings of prostitution. It is

81

Article 159(3) of the Constitution of Kenya 2010. 82

Cap 63 Laws of Kenya, Revised Edition 2009(2008). 83

See section 146 of the Penal Code; the penalty is a minimum sentence of up to 14 years with hard labour. 84

See section 152(4) of the Penal Code. 85

Ibid at section 153(1)

Page 41 of 64

apparent that the Code does not expressly outlaw prostitution but one wonders why living on the

earnings of prostitution is illegal yet the act of prostitution is itself neither legal nor illegal.

However the provisions of section 154 can be interpreted to mean that prostitution is illegal in

Kenya. The said section provides that:

“Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for

the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as

to show that she is aiding, abetting or compelling her prostitution with any person, or generally, is guilty of a

felony’’.86

The criminalization of prostitution is not taken lightly since it is a felony as opposed to a

misdemeanor. The fact that it is classified as a felony shows the level of intolerance to

prostitution and prostitutes the Kenyan society has over them. The Code further illegalizes the

keeping, managing or assisting in the management of brothels by any person, be they land lord,

lessee, tenant or agent of the lessee or landlord who lets any premises with knowledge that it is

or will be used as a brothel.87

The outlawing of the keeping and managing of brothels, which are

associated with legal regimes that legalise prostitution is a valid conclusion that indeed

prostitution under Kenyan law is illegal. This is so because countries where prostitution is legal

have brothels as the evidence of such a phenomenon.

Another conduct that borders on morality and is prohibited under the Code is an attempt to

procure an abortion. Section 15888

provides that “Any person who, with intent to procure

miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or

causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any

other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years”.

However wide the elements of the offence seem to be, the Constitution of Kenya 2010 in article

26(4) remedies this unrealistic approach towards abortion. The said article provides that

“abortion is not permitted unless, in the opinion of a trained health professional, there is need for

emergency treatment, or the life or health of the mother is in danger, or if permitted by any other

written law’’. The drafters of the constitution have tried to balance the life of the mother and the

86

See section 154 of the Penal Code Cap 63 Laws of Kenya. 87

Section 156 of the Penal Code Cap 63 Laws of Kenya. The same offence is classified as a felony. The provision

of section 17 of the Sexual Offences Act is similar to those of this section of the Code Section 15 of the Sexual

Offences Act 2006 outlaws child prostitution while Section 16 criminalizes child pornography. 88

See also sections 159 and 160.

Page 42 of 64

foetus at the same time since article 26(2) stipulates that the life of a person begins at conception.

Section 162 of the Code prohibits any person from having carnal knowledge of any person or

animal or allows any person to have carnal knowledge with him or her against the order of

nature.89

It can be argued that bestiality and any other sexual conduct that is “against the order of

nature’’ are clearly illegal under the Code. The Code does not define what the “order of nature”

is. This can lead to many interpretations which are beyond the scope of this research.

The Code criminalizes indecent conduct between males. The provisions of the Code at section

165 are a true rejection of the concept of private morality which the Welfenden Report

recommended not to be the business of the law. The said section states:

“Any male person who, whether in public or private, commits any act of gross indecency with another male

person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the

commission of any such act by any male person with himself or with another male person, whether in public or

private,(emphasis is added) is guilty of a felony and is liable to imprisonment for five years’’.90

This proviso raises two pertinent issues. One is that it appears to illegalize homosexuality among

males but is silent on females. Secondly it absolutely rejects the notion of private morality as

espoused by the Welfenden Report. The Constitution at article 45(2) can categorically be argued

in my opinion that it implicitly outlaws same sex sexual relationships. The Constitution provides

that “Every adult has the right to marry a person of the opposite sex, based on the free consent of

the parties’’.91

89

One of the most ambiguous expressions under the Code is the ‘against the order of nature’. What this

expression means is well known to the drafters of the Code. The penalty for this felony is 14 years

imprisonment and 21 years if:

(i) the offence was committed without the consent of the person who was carnally known; or

(ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of

threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature

of the act.

90 Section 165 of the Code

91 Constitution of Kenya 2010.

Page 43 of 64

Under Kenyan law, trafficking of obscene publication is a criminal offence.92

The rationale

behind this is the prevention of public morals from being corrupted.

The provisions of section 182(1) (f) is another manifestation of the extreme moral content of

Kenyan law. This section provides that “every person who in any public place solicits for

immoral purposes; shall be deemed idle and disorderly persons, and are guilty of a

misdemeanour and are liable for the first offence to imprisonment for one month or to a fine not

exceeding one hundred shillings, or to both and for every subsequent offence to imprisonment

for one year’’.

Murder, attempted murder, suicide, attempted suicide are criminal acts which are within the

domain of morality but have been extensively regulated under the Code. Assisting one to commit

suicide and conspiring to murder a person all felonies which attracts life sentence and 14 year jail

term respectively. The code is lenient on those persons who attempt to commit suicide since they

are only liable to a sentence not more than 6 months.

Kenya’s rule of recognition has not been spared of moral content or sentiments. Section 3(2) of

the Judicature Act Cap 8 has put morality as the standard against which the application of

African customary in all civil matters in which either one or more of the parties is subject or

affected by it. According to this provision if the customary law is repugnant93

to justice and

morality it may be apply not to such cases. The rule of recognition that is the Judicature Act has

recognised morality as a ground to exempt customary law from being applied in civil cases.

The Children Act no.8 of 2001 at section 158(3) (c) denies a homosexual the chance to apply and

be allowed to adopt a child probably because of the child’s best in interest as per as his moral

wellbeing is concerned. Under Section 23 (2) of the Children Act, a parent has the parental

responsibility to give parental guidance in religious, moral, social, cultural and other values. By

virtue of this section the Kenyan society has its members imparted with moral principles right at

a tender age.

92

See section 181. Section 181(1) (a) and (e) particularly deals with the intention of such publication to corrupt

morals. 93

For the definition of repugnant see, Okoth – Okombo, Semantic Issues in The S.M.Otieno Case: death and Burial

in modern Kenya, (19 89) page 94.

Page 44 of 64

Decency has always been associated with public morality whereby a person is expected to be

descent in such a way that may not offend the members of the public. It entails that a person

should always act in a decent manner in regards to another person. Section 27 of the Criminal

Procedure Code provides that search of a woman must be done by another woman with strict

regards to decency. There is no provision to the same effect on their male counterparts and hence

it can be argued that such stipulations are based on moral principles that women should be decent

and be dealt with strict adherence to decency.

It is interesting to see that the moral content of Kenyan law seems to be more or less rooted in

sexual offences and conduct in public arena. The Evidence Act Cap 80 laws of Kenya at section

163(1) (d) provides that “The credit of a witness may be impeached in the following ways by the

adverse party, or, with the consent of the court, by the party who calls him when a man is

prosecuted for rape or an attempt to commit rape, it may be shown that the prosecutrix was of

generally immoral character’’.

3.2 Formal Morality in Kenyan Law

Formal morality is the prescribed mode of conduct and values94

that the public officials are

required to observe failure to which they may face criminal charges or subjected to the

applicable disciplinary procedure that may lead to his or her dismissal or suspension.95

The Leadership and Integrity Act 2012 is the law that deals with formal morality pursuant to

Chapter Six of the Constitution of Kenya 2010. The Act provides for the ways how public

officials should conduct themselves and carry out their official duties. A state officer is required

to carry out his duties in accordance with the law96

and not to violate the fundamental rights and

freedoms of any person except under article 24 of the constitution.97

Section 13 of the Act is categorical as to which ethical and moral requirements state officials

should observe and maintain. These include:

(a) Demonstration of honesty in the conduct of public affairs subject to the Public Officer

Ethics Act, 2003;

94

Article 10 (2) of the Constitution of Kenya 2010 enumerates the national values that bind all state organs, state

officers, public officers and any other person. 95

Ibid article 75(2). Article 75(3) provides that “A person dismissed or otherwise removed from office as a result

of contravention of the provisions of articles 76.77 or 78(2) is disqualified from holding any other state office”. 96

Leadership and Integrity Act 2012 section 7(2). 97

Ibid section 79(3). See sections 9, 10 and 11 of the Act.

Page 45 of 64

(b) Not to engage in activities that amount to abuse of office;

(c) Accurate and honest presentation of information to the public;

(d) Not engaging in wrongful conduct in furtherance of personal benefit;

(e) Not to misuse public resources;

(f) Not to discriminate against any person except as expressly provided for under the law;

(g) Not to falsify any records;

(h) Not to engage in actions which would lead to the state officer’s removal from the

membership of a professional body in accordance with the law and;

(i) Not to commit offences and in particular, any of the offences under parts XV and XVI of

the Penal Code, the Sexual Offences Act,2006 , the Counter- Trafficking in Persons Act,

2010, the Children’s Act, 2008.

Sections 15 and 16 of the Act deal with wrongful and unlawful acquisition of property by state

officers and the conflict of interest on the part of the state officers respectively in which a state

officer is not allowed to use the office to wrongfully or unlawfully influence the acquisition of

property, and is required to use the best efforts to avoid being in a situation where personal

interests conflict or appear to conflict with the state officer’s or public officer’s official duties.

The provisions of sections 23 and 24 of the Sexual Offences Act are another form of formal

morality under Kenyan law. These two sections deals with sexual harassment98

at work place and

the abuse of position of authority by officials such as the superintendent or manager of a jail,

remand home, manager if hospital or staff of hospital and head-teacher, teacher or employee in a

primary, secondary school or special institution of learning. All these categories of public official

are prohibited from indulging in sexual activities by unduly and unlawfully using their positions

of authority to influence their victims in circumstances that do not amount to rape.

Corruption is in the 21st century considered a moral evil that has eluded the coercive nature of

the law as far as public office is concerned. Corruption manifests itself in the form of bribes,

abuse of office, fraud, embezzlement or misappropriation of public funds and breach of trust.

All these form of corruption fall under the tenet of formal morality since they occur in formal

setups where the provisions of public services take place. Abuse of office, which is the act of a

public official using his or her office to improperly award a benefit to him or herself or another

98

Se section 21 of Public Officers Ethics Act 2003 for an elaborate definition of sexual harassment.

Page 46 of 64

person, 99

is a crime under Kenyan law. Society has always devised ways of dealing with acts or

omissions it deems morally wrong in the disguise of say public policy, administrative action and

the law. Formal morality in this sense can be said to encompass all the legal, administrative and

public policy actions meant to create a sense of sanity in the moral well being of society as far as

the public officers are concerned.

The legal profession in Kenya is one of the highly regulated professions.100

Section 36 of the

Advocates Act Cap 16 prohibits an advocate from undercutting which basically means accepting

remunerations below those prescribed under the Act. It is an offence for an advocate to charge

for legal services less than what is in the remuneration order. An advocate is also not allowed to

share profits with an unqualified person.101

The rational for this kind of provision begs the

question of what type of philosophy informs this kind of provision.

In other jurisdictions it has been argued that a person who wants to be admitted as an attorney

must be fit and proper and that a person who declares his intention to continue breaking the

law102

is not a fit and proper person to be admitted as an attorney.

It is clear from the various statutes cited herein above that Kenyan law has a substantive moral

content in which nearly every aspect of conduct in Kenyan society is regulated and this may be

informed by the argument that the ontological foundation of African law is discernible in its

moral foundation.103

99

See Section 46 of the Anti Corruption and Economic Crimes Act 2003. 100

In 2012 the Law Society of Kenya released a new dress code for lawyers in Kenya. 101

Section 37 of the Advocates Act. Section 2 defines unqualified person as a person not qualified under section 9 to

act as an advocate. 102

Prince v President of the Law Society, Cape of Good Hope and Others 1998 (8) BCLR 976 (C). 103

Supra note 60.

Page 47 of 64

CHAPTER FOUR: MORALITY AND HUMAN RIGHTS IN THE KENYAN CONTEXT

4.0 Introduction

In this chapter we shall focus though narrowly on the relationship between morality and human

rights and as well as the practical implications of the moral content of Kenyan law to the

fundamental rights and freedoms as discussed in the previous chapter. It should be worthy to

note that human rights is such a wide discipline which this research paper cannot deeply delve

into it but in regards to the moral content of Kenyan law.

4.1 Morality and human rights

The moral doctrine of human rights aims at identifying the fundamental prerequisites for each

human being leading a minimally good life.104

Human rights aim to identify both the necessary

negative and positive prerequisites for leading a minimally good life, such as rights against

torture and rights to health care. However, the doctrine of human rights does not aim to be a fully

comprehensive moral doctrine. An appeal to human rights does not provide us with a fully

comprehensive account of morality per se. Human rights do not, for example, provide us with

criteria for answering such questions as whether telling lies is inherently immoral, or what the

extent of one’s moral obligations to friends and lovers ought to be.

Human rights rest upon moral universalism and the belief in the existence of a truly universal

moral community comprising all human beings. Moral universalism posits the existence of

rationally identifiable trans-cultural and trans-historical moral truths.105

However, there has often been a clash between traditional values from which morality stems, and

human rights. This is because traditional values are often deployed as an excuse to undermine

104

Andrew Fagan, Human Rights, Internet Encyclopedia of Philosophy, available at http//www.iep. 105

Ibid.

Page 48 of 64

human rights.106

Paradoxically, article 17(3) of the African Charter on Human and Peoples’

Rights107

provides that “the promotion of and protection of morals and traditional values

recognized by the community shall be the duty of the state’’. This implies that the state should do

all it can to ensure that the promotion and protection of the traditional values recognized by the

community takes place even if it means trampling on individual’s rights and freedoms. Article

27(2) of the African Charter further includes morality as the limiting factor to the exercise and

enjoyment of the fundamental rights and freedoms by providing that “the rights and freedoms of

each individual shall be exercised with due regard to the rights of others, collective security,

morality and common interest.’’

In Kenya for instance, an homosexual is not allowed to adopt a child and neither is a single

female perhaps on account of the moral welfare of the child which is justified on the traditional

values of the Kenyan society. The absolute insistence on the need to protect traditional values is

indeed an affront to the provisions of article 27 of the Constitution of Kenya 2010. This is

particularly in regards to the right against discrimination on any ground108

and the right to

equality before the law and equal protection and benefit of the law.

In regards to homosexuals being denied legal status to adopt children, they have technically been

denied equal benefit and protection of the law. They have also been subjected to unfair

discrimination which legal proponents of such discrimination must actually substantiate this

attitude under the provisions of article 24 of the constitution.

It should however be noted that agitating for the right to non discrimination of the gay and

lesbian persons does not and cannot amount to an advocacy for the practice of homosexuality in

the Kenyan set up. Discrimination against homosexuals and criminalization of homosexuality

are two different things. In law an accused or convicted person does not lose his or her

fundamental rights and freedoms just because he or she has been accused or convicted of a

criminal offence.

It would beat logic to argue that advocating for the rights of the homosexuals against

discrimination amounts to encouraging homosexual practices in a society that is highly and

106

See Graeme Reid, The Trouble With Tradition: When “Values’’ Trample Over Rights, World Human Rights

Report 2013. Events of 2012. 107

The African Charter by dint of article 2(6) of the Constitution of Kenya 2010 is part of Kenyan law and hence the

reference of the same hereinabove. 108

Article 27(4) of the Constitution.

Page 49 of 64

legally homophobic.109

The fact that someone is lesbian, gay, bisexual or transgender does not

limit their entitlement to enjoy the full range of human rights.110

It is true that the provisions of section 165 of the penal code that prohibits the committing gross

indecent acts with a male person or attempting to commit gross indecent acts with another man

whether in public or in private, is against the right to privacy, one fundamental question that

must be bored in mind is whether the right to privacy is absolute visa viz the commission of an

illegality pursuant to the right to private. One cannot presumably be allowed to enjoy his right to

privacy while committing a crime.

This is the far the advancement of traditional values in the disguise of morality at the expense of

human rights have trampled human rights. For lesbian, gay, bisexual and transgender people, the

traditional value argument may not just be used to limit human rights; it may be used to entirely

negate them.111

That is because according to Reid, the language of traditional values tends to cast

homosexuality as a moral issue, and not a right issue- as a social blight that must be contained

and even eradicated for the good of public morality.

One thing that human rights activists’ movement agrees is the fact that they are not opposed to

the existence of customary law, religious law, and tradition; they are opposed to those aspects of

them that violate human rights. Reid further argues that traditional values need not be at odds

with human rights; indeed they may even bolster them. This can be possible in the sense that

once there is a wave of change in the attitude or aptitude in regards to traditional values that are

inconsistent with human rights, leading to abandonment of such human rights negating values,

promotion of human rights is imminent.

Prof. Kivutha Kibwana argues that moral censure112

remains the major means of enforcing the

species of rights enshrined in the international human rights instruments when the state parties do

not collaborate to enforce and fulfill their legal obligations stipulated in the International

Covenant on Civil and Political Rights and the International Covenant on Social, economic and

Cultural Rights.

109

See Courtney E. Finerty, Being Gay in Kenya: The Implications of Kenya’s New Constitution for its Anti-

Sodomy Laws, 45 CORNELL INT’L L.J. 431- 459 (2012) 110

See U.N. High Commissioner for Human Rights, Discriminatory Laws and Practices and Acts of Violence

Against Individuals Based on Their Sexual Orientation and Gender Identity, ¶¶ 15– 19, U.N. Doc. A/HRC/19/41

(Nov. 17, 2011) 111

Supra note 97. 112

Kivutha Kibwana, You and the Law: Fundamental Human Rights and Freedoms in Kenya (1990) Oxford

University Press, page 88.

Page 50 of 64

Thus a moral appeal to enhance human rights can see the promotion of the fundamental rights

and freedoms of every human being and this may be achieved if the notion of the universality of

human rights is accepted within every human cultural see up. Janssens argues “that fundamental

equality explains why the moral demands are universal able that the same moral obligations

apply to all.’’ For instance the right to equality is believed to be a fundamental human right

which allows us to take an interest in everything that is human and to understand the moral

obligations which inform our common humanity.113

However, the question of the universality of human rights has not been universally accepted as

such and hence the cultural relativity of human rights is a hurdle which has helped morality to

trample over human rights in the Kenyan society for instance. This is because what society

perceives as immoral has ever been censored outside the legal framework. Therefore, as long as

the universality of human rights has not been universally agreed, morality (public) will continue

to impact the fundamental rights and freedoms either positively or negatively.

113

See Kussala Edwardo Hiiboro, Human Rights; The Church and Post -War Sudan, (2008) Pauline Publications

Africa, Nairobi.

Page 51 of 64

CHAPTER FIVE: CASE LAW ON THE MORAL CONENT OF KENYAN LAW

5.0 Introduction

This chapter will deal with the jurisprudence of Kenyan courts on how the same have handled

various cases whose facts are related to morality or integrity. The researcher will analyze and

critique the said case laws with a view to finding out the place of morality in Kenyan law.

Before the enactment of the Constitution of Kenya 2010, there existed the penal code whose

provisions form the bulk114

of the moral content of Kenyan law. With the enactment of the

Constitution of Kenya 2010, and particularly Chapter Six which deals with leadership and

Integrity and subsequently the Leadership and Integrity Act 2012, most of the cases discussed

herein concern integrity issues in one way or another.

In Miller Vs Miller115

(No 2) [1988] KLR the bond of contention was whether or not a judicial

officer could disqualify himself when the defendant claims that the presiding judge was a friend

of the plaintiff and whether plaintiff had demonstrated that justice would not be done or be seen

to be done. The second issue in contention before the court was whether or not there are

exceptions to the general rule that court proceedings to be conducted in public under article

77(11) (a) of the constitution116

now repealed, when embarrassing details of domestic disputes

need not be aired in public in considerations of public morality and policy and whether such

114

Refer to chapter three above. You will find out that the whole of Chapter XV of the Code deals with offences

against morality. 115

Also cited as Miller vs. Miller Civil Case No 2855 of 1987. 116

Constitution of Kenya 1963 commonly referred to as the Independence Constitution.

Page 52 of 64

considerations applicable in this case. It is this second question before the court which is going to

be discussed in regards to this case.

The facts of the case were as follows: This was a divorce matter filed by the then sitting Chief

Justice, Miller against his spouse. The defendant filed a notice of motion seeking to disqualify

the presiding judge from hearing the case and asking the court to order that the proceedings be

held in public. She deponed that the presiding judge was a close friend of the plaintiff.

The learned judge declined to disqualify himself from hearing the case arguing inter alia that he

finds no merit in the application whose main purpose was to discredit the judiciary and

embarrass the plaintiff and that there was no ground to apprehend that justice will not be done or

seen to be done. The court further held that disqualification of a judge is a serious matter and that

there was not a slightest reason for the defendant to warrant a suspicion that justice will not be

done and seen to be done.

The learned judge seemed to have been agitated by the defendant’s concerns and allegations that

he was a close friend to the plaintiff by blaming on the defendant’s learned counsel for failing to

advise his client when the judge said:

“All the proceedings before me so far were by way of chamber applications. I never excluded

any interested person from appearing in chambers, indeed none applied to me to appear. It is

evident from the fact that a local magazine called “Law” reproduced my important ruling

verbatim, revealing even the names of the parties in full. Where is the room for complaint on this

score? The learned counsel for the defendant knew about this position and yet chose to question

the court’s rectitude’’117 (emphasis added).

Whereas the learned judge’s reasons for declining to disqualify himself were valid and sound in

law, his attitude towards the defendant’s questioning of his rectitude to decide a case against his

alleged friend were cheer emotion since the basis of seeking for disqualification of a judicial

officer is real or apparent apprehension in the mind of a person that justice will not be done or

seem to be done. The defendant in my own opinion was legally and morally justified to

challenge the moral rectitude of the learned judge to hear and determine the divorce petition

against his ‘friend’ and it was on moral grounds that the learned judge frowned against the

learned counsel for the defendant to question the court’s rectitude despite having knowledge on

the truthful facts of the case.

117

Supra note 113

Page 53 of 64

The defendant in this case also had prayed that the divorce proceedings be held in public as

opposed to private hearing – hearing in camera. The court declined to grant this prayer and held

as follows:

1. That section 77(11) (a) of the Constitution of Kenya 1963, created exceptions to the

general provision of a trial in an open court. The exceptions concern, inter alia, public

morality, the welfare of persons and children under 18 years of age, and the protection of

the private lives of persons involved in the proceedings, all of which are relevant to these

proceedings.

2. That besides the public morality and over-riding consideration of innocent persons

dictates that embarrassing details of domestic disputes ought not to be aired in public.

This time-honoured and deep rooted practice based on sound public policy carries the

force of law.

The court in regards to the question of whether or not to allow the proceedings to be heard in

public clearly stated in the negative on the basis of public morality stemming from the

constitutional exception to the rule against public hearings which is by its very nature judicial

discretion. It is clear from this case that public morality is a ground for holding some court

proceedings in camera despite the fact that the law requires the same to be held in public. Public

policy which is a rather broad and vague concept, often referred in some instances as public

morality or order, has been in this case promoted to the extent that it carries the force of law.

In the same year,118

the court seemed to have deviated from the moral protection of public

morality or sound public policy requirement in the case of Githunguri vs. Jimba Credit

Corporation Limited civil case number 2 of 1988 when it held that:

“We think, eyebrows may well be raised on the morality of the applicant’s contention on this part of the

case. But this is a court of law not morals and if the applicant’s contention is well founded in law, this court’s clear

duty is to give effect to it. But is it right? We do not feel called upon to pronounce this at this stage.’’

The courts have recently revived the enforcement of the moral content of the law as far as the

constitution in chapter six on Leadership and Integrity, Public Officers Ethics Act, 2003 and

Integrity Act 2012 are concerned. The exercise of legal powers by certain state agencies or

institutions have either been held valid or invalid depending on whether integrity, which means

118

1988, when this Miller case was decided.

Page 54 of 64

the firm adherence to moral and ethical values in one’s behaviour119

or to moral and ethical

principles; soundness of moral character, honesty , have been taken into account where

necessary.

In the case of Benson Riitho Mureithi v J. W. Wakhungu & 2 others120

[2014] eKLR the court

quashed the appointment of Ferdinand Waititu as the chairperson of the Athi Water Services

Board on the basis that the Cabinet Secretary for the Ministry of Environment, Water and

Natural Resources, did not take into account the competence, suitability and integrity of the

appointee.

The facts of this case were that the petitioner, Benson Riitho Mureithi (suing on his behalf

and on behalf of the general public) challenged the constitutionality of the appointment of the

Interested Party as the Chairman of the Athi Water Services Board by the 1st respondent herein

referred to as the Cabinet Secretary, for a term of three years vide Gazette Notice No. 115 dated

10th January 2014 on account that the 1st respondent failed to take into consideration the

provisions of Article 73 in Chapter 6 of the Constitution when making the said appointment.

The petitioner averred that the Interested Party (Mr. Waititu) lacks integrity and it is therefore

illegal and unconstitutional for him to hold such an office. The petitioner argued that the

Constitution, the Water Act and the Public Officers Ethics Act require that when making

appointments to public office, the person making such appointment should have regard to the

educational qualifications, experience, character and integrity of the person proposed for

appointment and that the interested party lacks in character and integrity demonstrated by

various incidents which are matters of public knowledge.121

The petitioner made the following prayers which were finally granted except (f):

a. That a declaration be issued under Article 73 of the Constitution as read with the Fifth and

Sixth Schedule to the Constitution, that the 1st Respondent is under a duty to have regard to

personal integrity, character, competence and suitability when making the appointment of the

chairman of the Athi Water Services Board.

119

See the case of International Centre for Policy and Conflict & 4 Others -vs- Hon. Uhuru Kenyatta and Others,

Petition No. 552 of 2012. 120

Petition number 19 of 2014. 121

See paragraph 4 of the Judgment.

Page 55 of 64

b. That a declaration be issued that the 1st Respondent has failed to have regard to personal

integrity, character, competence and suitability when making the appointment of the chairman of

the Athi Water Services Board.

c. That a declaration be issued that the 1st Respondent’s failure and omission to have regard to

personal integrity, character, competence and suitability when making the appointment of the

chairman of the Athi Water Services Board is illegal and unconstitutional.

d. That a declaration be issued to the 1st Respondent to ensure that regard is had to personal

integrity, character, competence and suitability when making the appointment of the chairman of

the Athi Water Services Board. The appointment of Ferdinand Waititu is therefore null and void

ab initio and ought to be struck down so as to pave way for the genuine and constitutional

appointment of a candidate.

e. That an Order do issue directing the 1st Respondent and 2nd Respondent to take steps to

ensure that regard to personal integrity, character, competence and suitability when making the

appointment of the chairman of the Athi Water Services Board.

f. That the costs of, and incidental to, this Petition be awarded to the Petitioner against the

Respondents.

g. That this Honourable Court be pleased to grant such further Order or Orders as may be just

and appropriate.

The petitioner submitted that public power is exercised in trust for the public, and individuals

dignify the office and promote public confidence in the office; that the appointing authority must

pay regard to the competence, integrity and suitability of the person; and that in making the

appointment of the Interested Party, the 1st respondent did not consider the factors required

under Article 73.

The 1st and 2

nd respondents opposed the petition arguing that the issues of the Interested Party’s

integrity raised by the petitioner should not be heard and determined by this Court as the first

point of reference as there are procedures and guidelines which exist and have not been applied

in determining the integrity of the Interested Party. They further argue that the petition is

unmeritorious, vexatious, amounts to an argumentum ad hominem and offends the doctrine of

sub judice.

The Interested Party also objected the petition and denied the allegations of lack of integrity

made against him by the petitioner and contended that he is competent to hold the Chairmanship

Page 56 of 64

of the Athi Water and Services Board. The interested party contended that even a criminal

conviction is not a bar to public office appointment.122

The court in considering the matter reiterated the petitioner’s argument that the Court is not

making any judgment one way or the other with regard to the character, integrity or suitability of

the Interested Party and that the Court is concerned with whether the 1st respondent, in

appointing him Chairman, took into consideration what she was required to take into account by

the Constitution.

The court adopted in its entirety the reasoning in the case of International Centre for Policy and

Conflict & 4 others -vs- Hon. Uhuru Kenyatta and Others123

where the court held that:

“We are persuaded that this is the only approach to the interpretation of Article 73 of the

Constitution which maintains fealty to the Constitution and its spirit, values and objects.

Kenyans were very clear in their intentions when they entrenched Chapter Six and Article 73 in

the Constitution. They were singularly aware that the Constitution has other values such as the

presumption of innocence until one is proved guilty. Yet, Kenyans were singularly desirous of

cleaning up our politics and governance structures by insisting on high standards of personal

integrity among those seeking to govern us or hold public office. They intended that Chapter Six

and Article 73 will be enforced in the spirit in which they included them in the Constitution. The

people of Kenya did not intend that these provisions on integrity and suitability for public offices

be merely suggestions, superfluous or ornamental; they did not intend to include these provisions

as lofty aspirations. Kenyans intended that the provisions on integrity and suitability for office for

public and State offices should have substantive bite. In short, the people of Kenya intended that

the provisions on integrity of our leaders and public officers will be enforced and implemented.

They desired these collective commitments to ensure good governance in the Republic will be put

into practice.

It follows, therefore, that those organs and officials to whom the authority to select officials to

certain State Organs and institutions are delegated have an obligation to ensure that the persons

selected for the various positions meet the criteria set out in the Constitution and other legislation

for those positions. Where there are allegations that these organs have failed to discharge this

obligation, the Court is obligated to step in, when called upon to do so, to investigate whether the

process of recruitment and the individuals recruited meet the constitutional requirements’’.124

122

He relied on the case of Luka Angaya Lubwayo Vs Gerald Otieno Kajwang High Court Petition No 120 of 2013,

where justice Lenaola held that …”it must be noted that a conviction per se is not a disqualification for anyone

running for a state or public office.” 123

Supra note 112. 124

ibid

Page 57 of 64

This case is a locus classicus on what the courts perceive of the moral content of Kenyan law in

line with chapter six of the constitution, the court in this case was of the correct opinion that

whatever moral requirements stipulated in the Constitution are meant to be enforceable. The

court further took a pragmatic and realist approach taking into account the political history of the

Kenyan state by not only looking at the law in that regards but also clearly defining its territory

of legal intervention when constitutional requirements on integrity are not met. Hence personal

integrity is a mandatory requirement for any person seeking public office in the Republic of

Kenya. From the reading of this quote from the High Court, it would appear that moral principles

incorporated into the law are not to be interpreted as lofty moral aspiration but enforceable

provisions backed by the full force of the legal enforcement.

Courts have also dismissed cases, where the issue of integrity has not been properly shown by

the plaintiff applicants. Again the courts too have held certain customary law practices are

repugnant to justice and morality. In the case of Evans Nyambega Akuma v Attorney General &

2 others & 2 others [2013] eKLR the court held that “while encouraging the Petitioner to

continue his crusade for adherence to the Constitution by all public and other officials, his

crusade in the present Petition lacked direction…’’ Consequently the petition was dismissed.

The facts were that the petitioner was challenging the process leading to the establishment of the

National Police Service Commission on the ground that it was irregular and not in line with the

provisions of the National Police Service Act, he further challenged the appointment of the 3rd

Respondent, Johnstone Kavuludi whom the petitioner argued was and is unqualified to be the

Chairman of the National Police Service Commission and owing to the fact that he lacked

integrity as required by article 73(1) of the constitution .

The petitioner also argued that the appointment of David Kimaiyo, Francis Ndegwa and Samuel

Arachi as Inspector-General and Deputy Inspectors- General respectively was irregular and

unlawful.

The respondents argued that the petition is misguided, incompetent and without merit on the

grounds:

(i) That the process of appointment of the 3rd Respondent and all members of the National

Police Service Commission was procedurally done and lawfully made in accordance with Article

246 of Constitution and Sections 5, 6 and 12 of the National Police Service Act, No.3 of 2011.

Page 58 of 64

ii) That regarding the 3rd Respondent's alleged lack of integrity and lack of suitability for

appointment to the position of Chairman of the Commission, the Selection Panel invited views

on the subject from any person with such information and that no such information was

presented under Article 10 and Chapter Six of the Constitution as well as Section 42 of the

Leadership and Integrity Act, No.19 of 2012.

iii) That the Petition raises no constitutional issue for determination and no violation or breach of

any fundamental right has been properly exhibited.

iv) That therefore the Petition is without merit and should be dismissed with costs.

The court’s findings were that the law was duly followed and that there were procedures for the

removal of any public official whom a complaint has been brought against in which case the

president appoints a tribunal to that effect. In effect the court found in favour of the respondents

on grounds that the petition lacked merit. The petition on the face of it lacked merit and as such it

was rightly dismissed.

In the case of Kiplagat Korir Vs David Kipgeno Mutai Civil Appeal number 52 of 2005 the

court held that the Kipsigis Customary Law was repugnant to justice and morality when it

required a man who had been separated from his deceased wife for thirty - one years to bury her

upon her death when it sated as follows:

“ …., I think to uphold the argument by the respondent that the Kipsigis Customary Law

compels the appellant to bury the deceased, would be retrenching a Customary Practice which is

repugnant to this court’s sense of Justice and morality. The appellant cannot be compelled to take

responsibility of a person whom he was separated from for over thirty one (31) years.’’

The court in this case seems to have identified whose morality is required to guide the courts

under section 3(2) of the Judicature Act. The morality being espoused under the law is thus at the

instance of morality in the sense of the court and therefore public morality- morality espoused by

courts on behalf of society. It appears that the court was not prepared to allow such retrogressive

customary law provisions to tramp upon morality and justice. At least in the court’s sense of

morality, it would be unjust and hence immoral to compel a man to bury his deceased wife that

had deserted him for 31 years the provisions of the customary law notwithstanding.

The above case laws show a harsh reality that Kenyan law has a substantive moral content some

of its requirements are constitutionally sanctioned and have to be enforced per se. It is clear from

the foregoing cases that the mere presence of such moral requirements are not enough to warrant

Page 59 of 64

enforcement, the parties in a particular case must show that such moral requirements are in

existence and have been breached, violated, contravened or ignored by the state or any other

related entity or person when making certain decisions, actions or omissions.

CHAPTER SIX: CONCLUSION AND RECOMMENDATIONS

6.0 Conclusion

The debate on the relationship between law and morality has never ceased even as I conclude

this dissertation, further research may need to be done in respects of the findings that I have

made in this research so as to critique the finding herein and fill any gaps where necessary.

The intricate relationship between law and morality is one that can categorically be said to be

mutually beneficial and antagonistic as well. The fundamental truth and reality is that both law

and morality are important as regulators of social conduct in furtherance of order and societal

cultural values, morals and social integrity.

But who then determines what morality is and what is law? Society, through its collective

responsibility and conscience is the author of morality and the guardian of the same. Though,

relative from society to society, the common denominator is that immoral conduct has never

gone uncensored or unregulated through the elements of law or other social means on the basis

that society has the right to make moral judgment and punish immoral conducts through the use

of the criminal law in order to preserve its integrity. This philosophy is perhaps the driving force

behind the provisions of the penal code on offences against morality.

While society through its political establishment especially the legislative arm of government

determines what is lawful or unlawful conduct among its members, morality has been the

foundation of some of the criminal provisions found in the Kenyan statutes discussed in chapter

three of this dissertation. The legislature as the author of the law in a particular human and

political society has been faced with the dilemma on the extent to which the law should go as far

public or private morality is concerned.

Page 60 of 64

It is worthy to note that the idea of private morality is a utopian fallacy since no one can be a

judge in his own cause and as a consequence of morality being the distinction of right and

wrong, good and bad, one cannot make a good or rational judge when it comes to personal self

scrutiny of one’s moral conduct. The provisos of section 165 of the penal code are the living

testimony. Whereas morality and law are complementary( fill gaps in one another) as espoused

by Gadrner, a realistic approach to striking a balance between the egalitarian benefit derived

from the advancement of either is what should be the primary concern of the legislative arm of

the state on behalf of society.

Morality plays a crucial role in the reform of the law, efficacy and legitimacy. The law on the

other hand is distinct but has got moral principles incorporated into it. Law is a double edged

sword which protects moral principles and at times ignores such principles where necessary. This

is so in regards to the rights, powers and duties donated by law to members of society as opposed

to the rights, powers and duties imposed by moral norms which may not necessarily coincide.

Law and morality both being vital in society can be efficiently used to enhance the promotion of

the fundamental rights and freedoms in any given society so long as the universality of human

rights is universally accepted as such and there is a progressive change in attitude and aptitude in

regards to the traditional or cultural values espoused and recognized by a particular community.

Whereas morality as been used to limit or derogate human rights both within and without the

law, society ought to critically assess itself in regards to its conception of its moral integrity and

human rights of its members. There is a substantive grip of morality on the provisions of Kenyan

law that cannot be wished away but that needs to be harmonized with the human rights concept

with due regards to the prevailing moral tolerance and permissiveness in the Kenyan society.

The courts, as seen in the cases in chapter five, have taken a pragmatic and realist approach

taking into account the political history of the Kenyan state by not only looking at the law in

regards to integrity but also clearly defining its territory of legal intervention when constitutional

requirements on integrity are not met. Hence personal integrity is a mandatory requirement for

any person seeking public office in the Republic of Kenya.

It is clear from the foregoing cases discussed in chapter five that the mere presence of such moral

requirements are not enough to warrant enforcement, the parties in a particular case must show

that such moral requirements are in existence and have been breached, violated, contravened or

Page 61 of 64

ignored by the state or any other related entity or person when making certain decisions, actions

or omissions.

6.1 Recommendations

In regards to the foregoing chapters of this dissertation, the researcher would recommend to the

various stakeholders in the Kenyan society as follows:

1. There is need to acknowledge the fact that morality has influenced a substantive

number of statutes in Kenya most notably but not limited to the Penal Code Cap 63, the

children Act, 2001, The Public Officers Ethics Act, 2003, Economic Crimes and Anti

Corruption Act, 2003, The Criminal Procedure Act, Leadership and Integrity Act, 2012,

The Judicature Act Cap 8, The Sexual Offences Act and the Criminal Procedure Act. The

resulting impact of the provisions of these statutes may have negative bearings on human

rights and therefore there should be a robust reevaluation of the relevance of such

provisions visa viz the Bill of Rights in the Constitution of Kenya 2010. All statutes that

were enacted before the promulgation of the Constitution should be amended mutatis

mutandis in line with the Constitution which itself appears to be mild on morality and or

be interpreted in harmony with the Constitution of Kenya 2010.

2. Law and Morality though distinctive can never operate in isolation and hence law

makers must take advantage of the principle of public participation when making laws so

as to reasonably balance the competing interests of the moral welfare of society and the

fundamental rights and freedoms of the individuals in the society. This would give the

members of the public a better chance to choose the best compromise in the

circumstances that involve legislations that seem to advance moral norms while

infringing on the fundamental rights and freedoms.

3. Parliament need not unnecessarily enact morally correct laws and neither should it

shy away from legislating and enforcing morals where the circumstances of Kenya so

dictate or permit.

Page 62 of 64

BIBLIOGRAPHY

6.2 Books

David Ingram, (2006) Law: Key Concepts in Philosophy, London, Continuum International

Publishing Group.

Henry Odera Oruka, (1997) Practical Philosophy: In search of an Ethical Minimum, Nairobi,

East African Education Publishers.

Freeman, M.D.A. (2008) Lloyd’s Introduction to Jurisprudence, 8th

edition Sweet and Maxwell.

Kivutha Kibwana, (1990) You and the Law: Fundamental Human Rights and Freedoms in

Kenya, Oxford University Press.

Kussala Edwardo Hiiboro, (2008) Human Rights: The Church and Post -War Sudan, Nairobi

Pauline Publications Africa.

Lord Devlin, (1958) Morals and the Criminal Law.

Nigel E. Simmonds, (2008), Central Issues in Jurisprudence.

Niklas Luhmann, (2004), Law as a Social System, Oxford University Press.

Olivecrona K, (1939) Law as Fact, 1st edition.

Prof. Tom Ojienda and Katarina Juma, (2011) Professional Ethics, Nairobi, Law Africa

Publishing (K) Ltd.

Raz, J. (1979). Legal Reasons, Sources and Gaps.

R. M. Hare, (1952) The Language of Morals.

Roger Cottrell, (1992) The Sociology of Law: An Introduction, 2nd

Edition, Oxford University

Press.

Page 63 of 64

6.3 Articles and Journals

Andrew Fagan, Human Rights, Internet Encyclopedia of Philosophy, available: http//www.iep.

Courtney E. Finerty, (2012) Being Gay in Kenya: The Implications of Kenya’s New Constitution

for its Anti- Sodomy Laws, 45 CORNELL INT’L L.J. 431- 459

Francis Njuguna, (2010) Bishops say they will advise Catholics to oppose Kenyan constitution,

Catholic News Service, available: http://www.catholicnews.com/data/stories/cns/1001995.htm,

last accessed on the 3rd

of July, 2014.

Gerald Dworkin, (1999), Devlin Was Right: Law and the Enforcement of Morality, 40 Wm. &

Mary L. Rev. 927 http://scholarship.law.wm.edu/wmlr/vol40/iss3/11

Graeme Reid, (2013) The Trouble With Tradition: When “Values’’ Trample Over Rights, World

Human Rights Report 2013. Events of 2012.

H.L.A Hart’s Separability Thesis.

Iduwo William, (2009) Euro centrism and the Separability-Inseparability Debate: Challenges

From African Cultural Jurisprudence, The Journal of Pan African Studies, vol.2, no.9, pages

123- 150.

J. H. Driberg, (1934) The African Conception of Law, Journal of Comparative Legislation and

International Law, Third Series, Vol. 16, No. 4pp. 230-245; http://www.jstor.org/stable/753856

.Accessed: 30/01/2014 05:33

John Gardner, Law and Morality, at users.ox.ac.uk/~lawf0081/.../lawmoralityedited.pdf last

accessed on the 9th

of June, 2014.

Joris Fioriti, (2014) ‘Gays in Coted’Viore find haven on continent with hostile laws’, Daily

Nation, Tuesday February 11, 2014.

Page 64 of 64

Memorandum of Proposals for the Prosecution and Punishment of certain War Criminals and

other offenders, 30 April, 1945.

Michael N.Mabururu, (2005) The Importance of Legal Ethics and Jurisprudence in Nation

Building: The Kenyan Case.

P. Soper, (1986) Choosing a Legal Theory on Moral Grounds, {Social Philosophy and Policy,

volume 4 (1)}.

Prof. William Idowu, (20005). Law, Morality and African Cultural Heritage: The Jurisprudential

Significance of the Ogboni Institution, Nordic Journal of African Studies 14(2): 175-192

Rev. Prof John Mary Waliggo, Law and Public Morality in Africa: Legal, Philosophical and

Cultural Issues (A paper discussed at the ALRAESA Annual Conference, Imperial Resort Beach

Hotel, Entebbe, 4th – 8th September, 2005).

Steven Shavell, (2002) Law verses Morality as Regulators of Conduct, American Law and

Economic Review V4 N2 (227-257).

U.N. High Commissioner for Human Rights, Discriminatory Laws and Practices and Acts of

Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, ¶¶ 15– 19,

U.N. Doc. A/HRC/19/41 (Nov. 17, 2011)

William Miller, (2010) Conservatism and the Devlin- Hart Debate, International Journal of

Politics and Good Governance Volume 1, No. 1.3 Quarter III.

Yves Caron, The Legal Enforcement of morals and the So called Hart- Devlin Controversy,

McGill Law Journal volume 15, No.1, 10-47.