On Friday 27 October 2023, Kabarak Law School, through the Avid Readers Forum, held a conversation under the title Constitutional Identity in Kenya and India; The Great Southern Conversation at the Bethel Auditorium, Kabarak University. The lead discussants were Prof. Willy Mutunga, Adjunct Professor of Public Law and Chief Justice Emeritus, and Dr Gautam Bhatia, a constitutional law scholar from Jindal University. The event was moderated by Ms Luciana Thuo, Lecturer, Kabarak Law School.
Dr Bhatia introduced the discussion and noted that rights are used as a mechanism of social transformation. He underscored that human rights can be used to evaluate how transformative a constitution is. In addition, he noted that a transformative constitution addresses the prevailing needs of a particular legal system. The main reference material for the debate was Dr Bhatia’s article, India: A Constitution in Search of an Identity.
Prof Mutunga noted the features of a transformative constitution, including democratisation of the executive and equal distribution of political power. He provided great insights to the audience, stemming from his experience in the struggle for political freedom, his clamor for political change, and his tenure as Chief Justice. On the Constitution of Kenya 2010, he described it as a beautiful baby that has been left to child traffickers. Further, he stated the importance of history in interpreting the constitution. He concluded that the 2010 Constitution is activist, and having activist judgments is just a reflection of the Constitution itself.
In conclusion, Ms Thuo asked what the next step in the global south conversations on constitutional identity is. Prof Mutunga advocates for a Pan-African and a wider global south movement in the judiciary and engages with judgments from other global south states, following the similarity in historical constitutional progressions. Dr Bhatia hailed Kenya for involving other global south scholars as amicus in its judicial matters, which is the true spirit of global south constitutional conversations. He advocates for a shift from the ‘perceived gold mines of comparative constitutional law’ in the north to more south-south events.
This was a great day for our faculty, students, and the public. We thank the Kabarak Law School Avid Readers Forum for organising this auspicious event.