` WEEK 5& 6 STATUTES AND STATUTORY INTERPRETATION

Introduction
After the enactment of a statute questions about the scope, nature and
applicability of the legislation to a particular factual situation may
arise. The judicial authority to interpret law is vested in the various
courts and tribunals established under the constitution and other
written laws. Statutory interpretation connotes the act or the process
through which courts, in trying to understand a piece of legislation,
confer a particular meaning to a word or phrase used in the legislation.
Justice Holmes in Tomne v. Eispzer explained the elusive nature of
words as follows: -

“A word is not a crystal, transparent and unchanged; it is the skin of a

living thought and may vary greatly in colour and content according to
the circumstances and the time in which it is used."

It is for this reason that statutory interpretation becomes an important

process in the administration of justice. Although judges and
magistrates are clothed with limited discretion in interpreting statutes,
it is often supposed that they have no freedom to modify the law while
applying it. Therefore, judges are often forced to make highly
contentious choices while exposing the apparent meaning of a
legislation. It has been supposed that the main objective for
interpretation of statutes by the courts should be to uncover the
underlying intention for its enactment.

Courts have adopted several approaches to interpretation of statutes.

They include the logical/analytical approach, social policy approach and
the free intuition approach.

Logical Approach

This is the textbook approach where words are to be given their

apparent meaning. This approach considers the court to be a
mechanical instrument whose role is confined to that of expressing the
 will of the legislator. In reality, the role of the court is not purely
mechanical. The court often purports to ascertain the intention of the
legislator and in so doing exercises active discretion in choosing the
most reasonable meaning. It is under this approach where the several
rules of statutory interpretation- literal rule, golden rule and mischief
rule- have been advanced.

Social Policy Approach

Under this approach the court is considered to be a social engineer. It

should seek to achieve the social utility that the legislation was meant
to realize. Here the court seeks to advance the social policy good which
was wished-for by a particular legislation. For instance, for statutes
that are concerned with social welfare on matters pertaining, health,
security and safety or housing the court should interpret the statute in
favour of the person to who the act intended to benefit.

Free Intuition Approach

This approach supposes that the court should be given discretion to

interpret the statute in a manner that advances their individual
thinking about the provisions of a particular legislation. This includes
the discretion to depart and alter the literal meaning of the express
language used in a statute. This approach is highly criticized as it
derogates from the fundamental principle of separation of powers. The
role of the courts should be to interpret the law and not to make or
amend laws.

The Structure of Statutory Rules

We have established that rules are at the heart of any society.
Similarly, we have established that laws are largely embodied in
statutes as the power to make and amend laws vests in the parliament.
Statutes address a wide range of human activity in order to create
rights and duties as well as confer and protect interests of parties to
such activities. As such laws should receive broad public approval and
be developed in a manner that promotes public participation. Laws
realized out of this democratic process should conform to the
fundamental legal principles of rule of law and supremacy of the
constitution and be accessible and understandable. This suggests that
legislative drafting and format is an important component, in law
making and statutory interpretation, as it is useful in understanding the
text of the legislation.

Usually, statutes comprise of the following:

•Preambles

These are rare in acts of parliament. Nevertheless, they are common in

constitutions and international and regional treaties. A preamble is the
text that is the introductory information and precedes the enacting
text. Preambles usually recite the events which led to the enactment of
the specific legislation. In statutory interpretation they are useful in
understanding statutes of international and constitutional importance.
The Prevention of Terrorism (Implementation of the United Nations
Security Council Resolutions on the Suppression of Terrorism)
Regulations, 2013 preamble reads

“WHEREAS the Republic of Kenya has enacted the Prevention of

Terrorism Act, 2012, the Prevention of Organized Crimes Act, 2010 and
the Proceeds of Crime and Anti-Money Laundering Act, 2009;

WHEREAS the Constitution recognizes the general rules of international

law and treaties or convention ratified by Kenya to be part of the laws
of Kenya;

WHEREAS Kenya is a member of the United Nations and as such bound

by the decisions and Resolutions of the United Nations Security Council
by virtue of Article 41 of the Charter of the United Nations;

WHEREAS the Republic of Kenya has ratified the United Nations

Conventions aimed at addressing terrorism and terrorism financing;

WHEREAS Article 41 of the Charter of the United Nations provides that

the Security Council may determine the measures not involving the
use of armed force that may be employed to give effect to its
decisions, and call upon the Members of the United Nations to apply
such measures”

•Enacting statement.

This states the authority that promulgated the Act or Regulations. From
the above mentioned Regulations the enacting statement reads

“NOW THEREFORE, IN EXERCISE of the powers conferred by section 50

of the Prevention of Terrorism Act, 2012, the cabinet secretary makes
the following Regulations”

• Title/Citation

This section states how the particular Statute may be cited for
instance

“These Regulations may be cited as the Prevention of Terrorism

(Implementation of the United Nations Security Council Resolutions on
Suppression of Terrorism) Regulations, 2013.”

• Purpose provisions

This section explains the purpose for the enactment of a particular law,
for instance, “An Act of Parliament to establish a Capital Markets
Authority for the purpose of promoting, regulating and facilitating the
development of an orderly, fair and efficient Capital Markets in Kenya
and for connected purpose.”

• Commencement and duration provisions

This provision states when the Statute shall commence application, for
instance, “Date of commencement: 15th September, 2015: Section 1;
6th November, 2015: Parts 1–14, 23, 31, 32, 38, 40, 42, 1st Sch., 2nd
Sch. and 6th Sch.; 15th June, 2016: Others Parts and Schedules.”

• Application provision
This provision usually presents issues concerning the scope and period
of application, for instance, Section 50 of the Copyright Act provides

“(1) This Act shall apply to -

(a) works, performances, sound recordings and broadcasts made prior

to the commencement of this Act, where the term of protection had
not expired under the former Act or under the legislation of the country
of origin of such works;

(b) performances, sound recordings or broadcasts that are to be

protected under an international treaty to which Kenya is a party.

(2) This Act shall not affect contracts on works, performances, sound
recordings and broadcasts concluded before the commencement of
this Act.”

• Interpretation and definitions

Interpretation may be general or specific. General provisions add to the

understanding of a whole Act while specific provisions enhance the
understanding of individual terms used in all Acts or in particular Acts.

•Schedules

Schedules give details on the substantive provisions found in the body

of the Statute often by providing the necessary procedure. This helps
the user understand the purpose of the statute.

Generally, all these components arranged and divided into

 Parts

The presentation of an Act in parts makes the reader understand

the arrangement and sequence of the contents. A part points to the
cohesive character of the provisions within it and their separation
from the contents of other parts.

 Subparts
 Parts may be divided into sub-parts to identify various divisions
under the part. They save a purpose similar to that served by parts

 Sections and Subsections

Sections are specific and provide clear details as to how a certain

requirement is to be met. Sections are divided into subsections that are
usually more concise.

 Schedules

Schedules are normally divided into parts, subparts, clauses and sub-
clauses.

Ascertaining The Intention of Parliament

The court often justifies statutory interpretation on purporting to
ascertain the intention of the parliament. This is premised on the
doctrine of separation of powers between the different arms of the
government which requires that each arm perform its functions without
interference. The law making role is vested in the parliament and the
courts must therefore strive to give the legislation the meaning
intended by the parliament.

The phrase "the intention of parliament" appears to be explicit, but the

meaning becomes blurred on closer examination. If we examine how a
statute is enacted, we realize that frequently the proposal for
enactment originates from outside parliament, perhaps from a Non-
Governmental Organization. A bill is prepared by the parliamentary
draftsman by expressing the desired law in a language that is clear,
and which will, balance the interests of the parties affected. At this
point, the bill is to a certain level a negotiated agreement between
these parties. It may be passed in the form in which it is presented or it
may be amended

Usually, members of parliament may approve the bill for various

reasons. Certainly, some members may have no interest in the subject
matter of the bill, or it may be too technical for others. Consequently,
 they may not appreciate the contents of the bill and they may vote for
it on basis of the elusive Party loyalty, as long as there is nothing to
arouse their antagonism. In such circumstance, therefore, no clear
intention of the parliament can be perceived. The only certain thing is
that parliament has exercise the power vested in it by passing a bill
into law.

Aids to Statutory Interpretation

 Statutory aids
 Non-Statutory aids

Statutory Aids

These are means which are contained in the act that assist in
interpretation of the statute. As discussed above under the structure of
statutory rules, the components of statute may be useful in
interpretation of certain words or phrases used in the legislation. For
instance, the under the interpretation section certain words may be
conferred a technical meaning different from its colloquial meaning.
Courts will consider the meaning given under the statute first and will
only resort to other means where the word or phrase has not been
defined under the statute.

Non-Statutory Aids

These are the rules developed by the courts to help in the

interpretation of statutes. These rules take different approaches to
interpretation of a legislation. The court is not limited to the use a
particular rule, therefore a judge may choose one rule, while another
judge may prefer a different rule. These rules can therefore result in
diverse decisions. They include: -

 The plain meaning rule.

 The Golden Rule.
 The Mischief Rule.

The Plain Meaning Rule

This rule is also known as the “literal rule”. Under this rule, it is
required that words in the legislation must be given their plain,
ordinary or literal meaning. The court’s main aim is to ascertain the
intention of Parliament as expressed in the words used. This approach
will be used even if it results in absurdity, in which case the remedy is
for Parliament to amend the statute.

One of the leading statements of the literal rule was made by Tindal CJ
in the Sussex Peerage Case (1844) 11 Olefin 85:

“…the only rule for the construction of Acts of Parliament is, that they
should be construed according to the intent of the Parliament which
passed the Act. If the words of the statute are in themselves precise
and unambiguous, then no more can be necessary than to expound
those words in their natural and ordinary sense. The words themselves
alone do, in such case, best declare the intention of the lawgiver.”

Lord Esher in R V Judge of the City of London Court [1892] 1 QB

273 averred that

“If the words of an Act are clear then you must follow them even
though they lead to a manifest absurdity. The Court has nothing to do
with the question whether the legislature has committed an absurdity.”

In Fisher v Bell [1960] 3 All ER 731 the defendant, a shopkeeper,

displayed in his window a flick knife with a price ticket, and was
prosecuted for "offering for sale” an offensive weapon contrary to the
Restriction of Offensive Weapons Act 1959. The High Court held that
the phrase "offer for sale" was to be taken literally, and be accorded
the meaning as in contract law, and that the defendant’s display of the
weapon was no more than an invitation to treat. The court made a
presumption that the parliamentary draftsmen knew the technical legal
language thus the Common Law expression was not altered.

In Whitely v Chappell (1869), the defendant casted a vote in the

name of a person who had die. The court found the defendant not
 guilty of personating. The court took the view that the phrase ‘any
person entitled to vote’ disentitled the dead person from voting.

The plain meaning rule has led to harsh decisions by the courts due to
its literal application. In London & North Eastern Railway Company
v Berriman (1946) a worker in the railways was killed while
undertaking maintenance work of oiling points along a railway line. His
widow later claimed compensation but failed. The court construed the
words, "relaying" and "repairing" in their literal sense and held that
oiling points could only be maintained and not relayed or repaired.

Advantages of the plain meaning Rule:

 It encourages draftsmen to be precise and use words that are

unambiguous.
 It respects the parliament as the supreme law maker, thus, the
doctrine of Separation of Powers.
 It prevents judges from “rewriting” statutes, should be the
mandate of the parliament.
 Alternative approaches by courts would make it difficult to
predict how doubtful provisions might be “rewritten” by judges.
The literal rule constricts the rewriting.

Disadvantages of the plain meaning Rule:

 It ignores the fact that language has its limitations. Words may
turn out to be ambiguous and the original intention of parliament
may be lost.
 Courts have had the tendency to over-emphasize the literal
meaning of statutory provisions without giving due weight to
their meaning in wider contexts thus resulting unreasonable
conclusions.
 It assumes that parliament members who draft legislation were
properly informed of the subject matter. In fact, some may have
no interest at all or the subject matter may be too technical thus
no clear intention can be perceived.
  Decisions made through this interpretation can be harsh or
absurd due to the elusive nature of some words.
 The only way to resolve issues that arise through this mode of
interpretation is by Parliament passing an amending statute
which may take very wrong thus result in massive injustice.

The Golden Rule.

This rule requires that where the words used in a statute are
ambiguous, the court should construe the words in such manner as to
avoid absurdity. Therefore, if words or phrases in a statute result in an
absurd meaning when applied literally, the court will assume that
parliament did not intend the absurdity and therefore interpret the
statute to give the meaning intended by parliament.

In Grey v Pearson (1857) 6 HE Cas 61, Lord Wensleydale stated

that:

“… the grammatical and ordinary sense of the words is to be adhered

to, unless that would lead to some absurdity, or some repugnance or
inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified, so as
to avoid that absurdity and inconsistency, but no farther.”

This became known as the “Lord Wensleydale’s golden rule”.

In Jones v DPP (1962) Lord Reid while applying this rule observed
that: -

"It is a cardinal principle applicable to all kinds of statutes that you

may not for any reason attach to a statutory provision a meaning
which the words of that provision cannot reasonably bear. If they are
capable of more than one meaning, then you can choose between
those meaning, but beyond this you cannot go."

In Adler v George [1964] All ER 628, Adler gained access to a RAF

station and obstructed a member of Her Majesty's forces engaged in
security duties ‘in the vicinity of a prohibited place’. He argued that as
he was actually in the prohibited place, he could not be said to be “in
the vicinity” of the prohibited place. The literal interpretation of this
phrase contained in the Official Secrets Act 1920 would allow
protesters to demonstrate within military bases but not outside them,
creating an absurdity. This was clearly not the intention of the
parliament. Adler was found guilty of the offence because “in the
vicinity of” should be interpreted to mean on or near the prohibited
place.

Other than avoiding an absurd interpretation, in the wider sense, the

rule also calls for judges to modify the interpretation of words in order
to avoid the occurrence of a repugnant situation as illustrated in the
case of Re Sigsworth [1935] Ch 89. Section 46 of the Administration
of Estates Act 1925 stated that where a person dies intestate leaving
children but no spouse, the estate passes to the children. The
defendant had murdered his mother, who did not have a will, and he
stood to inherit her estate as next of kin by being her “issue”. The
court applied the golden rule and held that the “issue” would not be
entitled to inherit where they had killed the deceased.

Advantages of the Golden Rule

 Prevents the harsh and absurd decisions that may result from the
use of the literal rule by judges.
 Prevents the occurrence of repugnant situations.
 The court plays more than a mechanical role in the
administration of justice thus the results may be more
satisfactory as compared to giving words their plain meaning.

Disadvantages of the Golden Rule

 Leads to situations where judges “rewrite” statutes which is a

role vested in the Parliament, thus, disregard the fundamental
principle of separation of powers.
  There is no clear way to test the existence of absurdity,
inconsistency or inconvenience, or to measure their quality or
extent.

The Mischief Rule.

Under this rule the court is to ascertain the intention of parliament by
determining the “mischief and defect” that the statute in question has
set out to remedy, and to determine what ruling would effectively
implement this remedy. The question that the court should ask is
therefore “what mischief did the previous law have that Parliament is
seeking to remedy in passing the law that is now being reviewed by the
Court?”

The rule was first set out in the Heydon’s Case [1584] 76 ER 637,
and allows the Court to look at the state of the former law in order to
discover the mischief in it which the present law was designed to
remedy. The Court, in an action to determine the validity of a lease,
formulated the Mischief Rule and in applying it required Courts to
ascertain and consider the following -

1. What was the Common Law before the making of the Act?

2. What was the mischief and defect for which Common Law did not
provide?

3. What remedy did the parliament resolve and appoint to cure the
mischief in the Common Law?

4. What is the true reason of the remedy?

The ruling in this case required Courts to make such construction and
interpretation as shall suppress the mischief and at the same time
advance the remedy intended by parliament.

In the case of Corkery v Carpenter [1951] 1 KB 102, the Licensing

Act 1872 stipulated that it was an offence to be drunk in charge of a
carriage. While no direct reference was made to bicycles, the Court
ruled that Corkery was guilty as the term “carriage" could also be
applied to a bicycle.

The Purposive Approach to interpretation has been developed under

this rule. Under this approach, the courts are to decide based on what
they consider parliament meant to achieve. The pioneer of this
approach was Lord Denning in the case of Magor and St Mellons v
Newport Corporation (1950) where he averred that:

"We sit here to find out the intention of Parliament and carry it out, and
we do this better by filling in the gaps and making sense of the
enactment than by opening it up to destructive analysis."

Lord Denning’s judgement in Notham v London Borough of Barnet

[1978] 1 WLR 220, the purposive approach is one that will “promote
the general legislative purpose underlying the provisions”. In Jones v
Tower Boot Co Ltd (1997) IRLR 168 CA, the complainant suffered
racial abuse at work, which he claimed amounted to racial
discrimination for which the employers were liable under S.32 of the
Race Relations Act 1976. The Court of Appeal applied the purposive
approach and held that the acts of discrimination were committed “in
the course of employment" is to be given an everyday, rather than a
tort law, meaning. Any other interpretation ran counter to the whole
legislative scheme and underlying policy of S.32.

In the case of Smith v Hughes, the Street Offences Act 1959 made it
an offence for a prostitute to solicit men “in a street or public place”.
The question thus arose of whether a woman who had tapped on a
balcony and hissed at men passing by was guilty of an offence under
the Act, Parker LCJ found the woman guilty and stated:

“I approach the matter by considering what is the mischief aimed at by

the Act. Everybody knows that this was an Act intended to clean up the
streets, to enable people to walk along the street without being
molested or solicited by common prostitutes. Viewed in that way, it
can matter little whether the prostitute is soliciting while in the street
or standing in a doorway or on a balcony.”

Advantages of the Mischief Rule:

 It is a more satisfactory way of interpreting the law than the

other two rules as it avoids unjust and absurd reasoning.
 It abides by the rule that it is parliament’s role to make the law
whereas the Judiciary merely interprets it.
 Allows courts to effect the remedy intended by Parliament to
cure the defects in Common Law.

Disadvantages of the Mischief Rule:

 It makes the law uncertain as it is not always predictable how

judges will interpret a statute.
 It is not easy to find the intention of Parliament.
 The rule itself is out of date and therefore does not reflect
modern needs.
 It might lead to uncertainty where a judge completely changes
the true meaning of statute.