1. INTRODUCTION For a long time, though state-sanctioned, Arbitration has generally remained outside the scope of constitutional law. This paper seeks to examine the effect of the constitution supremacy clause on Arbitration in Kenya. It looks at the relationship between the Constitutional Bill of Rights and the rules of Arbitration practice in Kenya. It identifies possible areas of conflict between the concept of constitutional supremacy and Arbitration and especially with regard to such principles as separation of powers and personal liberties. 2. SUPREMACY OF THE CONSTITUTION Supremacy of the Constitution is said to refer to a situation where the highest authority in a legal system is conferred on the Constitution.1 The legal norms and/or statutes, institutional structure of the organs of the State and the legislators all rank lower than the Constitution. This principle of the supremacy of the constitution is said to have originated from the American jurisdiction. It is believed to have first come up when Alexander Hamilton while writing the Federalist Papers argued that there is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.2 He further argued that no legislative act therefore contrary to the constitution can be valid. He posited that to deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.3 His argument was that all exercisable powers vested in leaders originate from the people who by their own volition delegated the same to those in authority. The leaders must therefore exercise their legislative powers in a way that is consistent with the constitution.4 This principle of constitutional supremacy later appeared in the American Constitution under Article 6 section 2 which states inter alia that the American Constitution shall be the supreme law of the land; that the Judges in every State shall be bound thereby, and anything in the Constitution or Laws of any State to the Contrary notwithstanding. 1Limbach, J., The Concept of the Supremacy of the Constitution' The Modern Law Review, Vol. 64, No. 1 (Jan., 2001), pp. 1-10, page 1, Available at http://www.jstor.org/stable/1097135 Accessed on 15/11/2013 2 See Hamilton, A., The Federalist No. 78, The Judiciary Department, From McLean's Edition, New York. 3 ibid 4 Ibid 5 | P a g e In the American case of Marbury v. Madison, 5 it was held that it was the duty of the Judicial Department to say what the law is. The Court stated that those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. The American Supreme court also inter alia held that ...the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.6 All laws which are repugnant to the Constitution are null and void.7 This historic court case reinforced the concept of Judicial Review or the ability of the Judiciary Branch to declare a law unconstitutional. It has been suggested that there exists three notions of the principle of supremacy of the constitution which are: The possibility of distinguishing between constitutional and other laws; the legislator's being bound by the constitutional law, which presupposes special procedures for amending constitutional law; and an institution with the authority in the event of conflict to check the constitutionality of governmental legal acts.8 It has been argued that Constitution Supremacy represents a quality of the constitution being in the top of the juridical system of the society....In this way accomplishment of the objectives of the state of right results especially regarding the citizen's fundamental freedoms and rights(sic).' 9 It has also been posited that "the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny." To guard against that accumulation of power, the Constitution has built-in protections.10 The supremacy of the Constitution is thus seen as one of the fundamental pillars that are important for the realisation of the other constitutional guarantees. It is also important for the enjoyment of the Bill of Rights and fundamental freedoms. Laws that purport to infringe on any of the constitutionally guaranteed rights would be defeated by the supremacy clause by being declared unconstitutional and thereby invalid. 5 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803) 6 Ibid. 7 Ibid, 1803 8Limbach, J., The Concept of the Supremacy of the Constitution' The Modern Law Review, Vol. 64, No. 1 (Jan., 2001), pp. 1-10, op. cit. page 3 9 Mariana, L., The Constitution Supremacy' page 1, Available at http://www.sustz.com/.../Jurj_Liliana_Mariana_2.pdf accessed on 23 November, 2013 10 Madison, J., Federalist Papers, No. 48, From the New York Packet, Friday, February 1, 1788. 6 | P a g e 3. CONSTITUTION OF KENYA, 2010 AND THE SUPREMACY CLAUSE Article 1(1) of the Constitution of Kenya, 2010 (hereinafter the Constitution) provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. Clause (2) thereof provides that the people may exercise their sovereign power either directly or through their democratically elected representatives. Further, Clause (3) provides that Sovereign power under the Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution: Parliament and the legislative assemblies in the county governments; the national executive and the executive structures in the county governments; and the Judiciary and independent tribunals. Clause (4) is to the effect that the sovereign power of the people is exercised at: the national level; and the county level. Article 159 (1) provides that Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. Regarding Legislature, Article 94(1) provides that the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. Further, with reference to the Executive, Article 129(1) provides that the Executive authority derives from the people of Kenya and shall be exercised in accordance with the Constitution. Clause (2) thereof further provides that the Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. The foregoing provisions trace the source of the constitutionally conferred powers from the people. This position is also captured in the Preamble which provides inter alia that in exercising the people's sovereign and inalienable right to determine the form of governance of their country and having participated fully in the making of the Constitution, adopt, enact and give the Constitution to themselves and their future generations.11 The fact that the Constitutional powers emanate directly from people has been used to justify the supremacy of the Constitution over every other law or law-making body in the land. It has been argued that the Constitution is a charter containing the pact that is the social contract....'12 The constituent power is said to be a primordial power, that is, it pre-exists a constitution. The Constitution thus only comes in to delegate such power.13 The principle of the supremacy of the Constitution is entrenched in Kenya's Constitution, 2010 under Article 2 thereof.14 Clause (1) is 11 Preamble, Constitution of Kenya, 2010 12 Muigai G., The Judiciary in Kenya and the Search for a Philosophy of Law: The Case of Constitutional Adjudication," Constitutional Law Case Digest, Vol. 2, pp. 159-189 at page 160 (2005), International Commission of Jurists (Kenya) 13 Njoya and Others v Attorney-General and Others (2004) AHRLR 157 (KeHC 2004) 14 The supremacy clause was captured in the now repealed Constitution of Kenya (1963) under section 3 thereof, which was to the effect that the Constitution is the Constitution of the Republic of Kenya and shall have the force of 7 | P a g e to the effect that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. Clause (3) also provides that the validity or legality of the Constitution is not subject to challenge by or before any court or other State organ. Further, clause (4) provides that any law, including customary law, that is inconsistent with the Constitution, is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. These provisions notably follow Limbach's assertion of the three notions of constitutional supremacy.15 The various national legal and institutional arrangements are thus bound by the Constitution in their application and functioning. Article 3(1) provides that every person has an obligation to respect, uphold and defend this Constitution. The concept of constitutional supremacy has also been subjected to interpretation by the Kenyan Courts. For instance, in the case of Githunguri vs Republic16 the High Court held inter alia that it has inherent powers to exercise jurisdiction over tribunals and individuals acting on administrative or quasi-judicial capacity. In another Kenyan case of Albert Ruturi & Others vs A.G & The Central Bank of Kenya17 the High Court held that any law that is inconsistent with the Constitution shall to the extent of the inconsistency be void and the Constitution shall prevail (s.3 of the repealed Constitution of Kenya). Supremacy of the Constitution was also discussed in the case of Kamlesh Mansukhlal Damji Pattni and Goldenberg International Limited vs the Republic. 18 The Court held that the High Court has the primary responsibility of safeguarding against contravention of the rule of law and the contravention, particularly with regard to fundamental rights and freedoms. The manner of Constitutional interpretation, being the supreme law of the land, was considered in the east African case of Republic vs El mann, 19 where the Court held that the Constitution is not different from any other statute and should be interpreted in the same manner. The Court held that the Constitution has to be interpreted according to the intention expressed in the Constitution itself. The Kenyan Courts however rejected the holding in the El Mann case. 20 In Crispus Karanja Njogu vs Attorney General (Unreported)21 the Constitutional Court stated that the Constitution is not an Act of Parliament but it exists separately and it is supreme. Further, when an Act of Parliament is in any way inconsistent with the Constitution, the Act of law throughout Kenya and, and subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of inconsistency, be void.' 15 Limbach, J., op. cit. page 3 16 Criminal Application No. 271 of 1985 (1986) 17 High Court at Nairobi, Miscellaneous Civil Application No. 905 of 2001 18 High Court Misc. Application No. 322 of 1999 and No. 810 of 1999 19 [1969] EA 357 20 For a further discussion on this, see Thiankolu, M., Landmarks from El Mann to the Saitoti Ruling; Searching a Philosophy of Constitutional Interpretation in Kenya' Kenya Law Reports, January, 2007, Nairobi, Available at http://www.kenyalawreports.or.ke/Downloads_Other/Landmarks_from_El_Mann_to_the_Saitoti_Ruling.pdf Accessed on 29 November, 2013 21 High Court Criminal Application No 39 of 2000 8 | P a g e Parliament, to the extent of the inconsistency, becomes void....It is our considered view that, constitutional provisions ought to be interpreted broadly or liberally. Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the Constitution, of necessity, has principles and values embodied in it; that a Constitution is a living piece of legislation. It is a living document. (Per Oguk, Etyang and Rawal, J.J.J) The Constitutional court in the Njogu case ruled that due to its supremacy over all other written laws, when one interprets an Act of Parliament in the backdrop of the Constitution, the duty of the court is to see whether that Act meets the values embodied in the Constitution. The El Mann case position was further challenged and rejected in another Kenyan case of Njoya & others vs Attorney General & others,22 where the Court followed the Njogu case held that unlike an Act of Parliament which is subordinate, the Constitution should be given a broad liberal and purposive interpretation to give effect to its fundamental values and principles. The supreme nature of the Constitution was well captured by the Tanzanian Court of Appeal in Ndyanabo vs Attorney General23 where the Court stated that firstly, the Constitution is a living instrument, having a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must, therefore, endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in (tune) with lofty purposes for which its makers framed it. The Court asserted that so construed, the instrument becomes a solid foundation of democracy and the rule of law. Secondly, the provisions touching on fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that the people enjoy their rights, the democracy not only functions but grows, and the will and dominant aspirations of the people prevail. The Court stated that restrictions on fundamental rights must be strictly construed. The current Constitution of Kenya, 2010 provides under Article 259(1) the Constitution shall be interpreted in a manner that: promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance. The Constitution has gone a step further to provide for the general principles and national values of governance which must guide the application of all laws as well as the operation of all state organs and persons. Article 10(1) thereof provides that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them: applies or interprets the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. Clause (2) thereof has laid out such 22 [2004] 1 EA 194 23 [2001] 2 EA 485, page 493 9 | P a g e principles and national values as follows: patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development.24 To promote the observation of such values and principles in the area of human rights, Chapter Four of the Constitution (Articles 19-59) has been dedicated to The Bill of Rights and Fundamental freedoms that must apply to all law and bind all State organs and all persons. 25 (Emphasis ours) Article 19(1) provides that the Bill of Rights and fundamental freedoms is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. This therefore means that all the necessary measures must be put in place to ensure that it is promoted and protected for the wellbeing of general populace. To protect any interference with constitutional supremacy, the Constitution under Chapter sixteen provides for the procedure to be followed in its amendment.26Article 255(1) of the Constitution provides that a proposed amendment to the Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum, if the amendment relates to inter alia such matters as: the supremacy of the Constitution; the sovereignty of the people; the national values and principles of governance referred to in Article 10 (2) (a) to (d); and the Bill of Rights. Any law that is inconsistent with the Constitution is void to the extent of the inconsistency and any act or omission in contravention of the Constitution is invalid.27 4. ARBITRATION PRACTICE UNDER THE KENYAN LAW Kenya has passed an Arbitration act to define the scope, responsibilities, and limitations of the arbitral tribunals, to allow parties to determine disputes in a manner consistent with law. The constitutionally contemplated laws include the law of Arbitration in Kenya, which is the main focus of this paper. Arbitration in Kenya is governed by various laws which include the Constitution, The Arbitration Act 199528 (hereinafter the Arbitration Act), the Arbitration Rules, Civil Procedure Act29 and the Civil Procedure Rules 201030 . Article 159(2) (c) of the Constitution provides that in the exercise of judicial authority, the Courts and tribunals must be guided by the principle of inter alia promotion of alternative forms 24 Article 10(2), Constitution of Kenya, 2010, Government Printer, 2010, Nairobi 25 Article 20(1) 26 Articles 255-257 27 Article 2(4) 28 No. 4 of 1995(As amended in 2009) 29 Cap 21, Laws of Kenya 30 Legal Notice No. 151 of 2010, Rules under Section 81, Cap 21

read page 4 to 9 only, and summarise , the concept of supremacy of the constitution, and show how the Constitution of Kenya and Uganda has captured this concept. (HINT see article 2 of the Constitution of Kenya and and section 2 of the Constitution of Uganda).To read the Constitution of Kenya and Uganda, simply google search