Pertinent issues you raise up there!

We are all advised to consult widely before reaching a decision!!!!!!
Interesting if it werent debilitating.

This represents some of the constitution shortcomings!
Whenever anybody attempted to highlight any such gray areas, during the run up to the referendum they were shouted down.

http://www.wazua.co.ke/f....aspx?g=posts&t=7699

@newfarer, asante 4 collecting ma big mouth...bt controversy is good, it ploughs up more opinions.

(2) A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.

According to the dictionary:
Consult: to go to a person for information or advice.
Consult with: to exchange opinions or information with someone.
Consultation: a meeting held to exchange opinions and ideas so that a decision can be made.

As per the above, Kibaks appoints, after consulting with PM, then Parliament approves


There is no where it states that consultation must always lead to an agreement with the person you are consulting with. Meaning that MK and RAO may have consulted but they never agreed. But since consultation took place, MK was the one with the authority of making a decision concerning CJ, AG, DPP. He now had the choice to use RAO's input or not.

Hence @mahe-goat, they dont have to agree. MK has the final word. No matter what others say, consulting and agreement are two different things and their correlation does not necessarily imply causation.

@ Jus Blazin
What you are interpreting is a word contained in a legal document – the Constitution.
You could also try going beyond the dictionary and plain meaning. Words are loaded.
http://en.wikipedia.org/wiki/Purposive_theory
http://worid-of-books.com/?id=E0uxBVW1cuUC (a whole book on purposive interpretation).

A word can mean whatever you want it to mean. So the big questions here are what did we want? What was meant? What was the spirit of that provision?

When we were in Egypt, the Courts insisted on intepreting the Constitution using the approach you are proposing...giving words their plain and literal meaning (Chief Justice Mwendwa. And the results were so unjust that the approach was abandoned several Chief Justices ago. More progressive approaches were adopted to breath life to the constitution. It will be interesting to see whether we lose all that progress because we have a new Constitution which has not been subjected to similar exercises in interpratation. If so, we're the losers here...

In 2004, an article by Githu titled “Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation” was published. He said in effect that constitutions (with their infinite variability in text, values, doctrine and institutional practice) may be interpreted differently by different yet equally well-meaning people.

I insist, words are flexible. They can shrink and expand. And words are tools.
The answer depends on whether this is politics or law. And whether we prefer the dictionary and technical interpretations over certain values. Not on your English or mine.

@petro, my point exactly. you've rephrased it quite well.

@For Sport, wachana na progressive, regressive and digressive theories. Now the below would definitely have meant agreement.