Justice Ngaah reminds us of enduring power of dissent

In every generation of constitutional adjudication, there emerges a judicial voice that refuses to be confined by the comfort of consensus. That voice is often found in a dissenting opinion. Although it does not command the force of law at the moment it is delivered, history repeatedly demonstrates that today’s dissent may become tomorrow’s constitutional orthodoxy. Justice Jairus Ngaah’s dissent in the Cabinet appointments case is one such opinion. It goes beyond a judicial departure with his colleagues. It affirms that constitutional adjudication demands intellectual independence, fidelity to constitutional values, and the courage to speak against prevailing judicial currents where conscience and constitutional principle require.

Dissent occupies a unique place in judicial history because it embodies the idea that judges are servants of the Constitution before they are members of a judicial majority. A judge’s highest loyalty to the Constitution sometimes produces a dissent in this era where dissents have become rare in the Kenyan judicial landscape. The value of a dissent therefore lies not in whether it immediately prevails but in whether it faithfully preserves an alternative constitutional vision for future generations. Justice Ngaah’s opinion reminds us that constitutional law is not static. It evolves through competing interpretations, rigorous debate and courageous judicial reasoning.

The history of constitutional jurisprudence is, in many respects, the history of yesterday’s dissents becoming today’s settled law. Justice John Marshall Harlan’s lone dissent in Plessy v Ferguson (1896), which rejected racial segregation and declared that the Constitution is colour-blind, stood alone for decades before becoming the moral and constitutional foundation for Brown v Board of Education (1954). Justice Oliver Wendell Holmes’ dissents on freedom of speech, once dismissed as minority opinions, later shaped modern First Amendment doctrine.

Justice Ruth Bader Ginsburg’s dissents on gender equality became legislative and judicial reference points long after they were written. These examples teach one enduring lesson, that dissents may later form an enduring constitutional truth. Ngaah’s dissent belongs within this long tradition. It demonstrates an understanding that constitutional adjudication is about protecting the architecture of constitutional democracy itself. While the majority may have adopted one interpretation of presidential appointment powers and constitutional compliance, Ngaah reminds us that constitutional interpretation must constantly be measured against the deeper purposes of the Constitution.

The Constitution was never intended to be an ordinary legal document. It was born out of decades of authoritarianism, exclusion, abuse of executive power and demands for accountable governance. It is therefore a transformative Constitution. Its aspiration is not simply to regulate public power but to fundamentally transform the relationship between the state and its citizens. Transformative constitutionalism requires judges to read constitutional provisions purposively, generously and progressively.

It demands constant vigilance against practices that may gradually erode constitutional safeguards, even where those practices appear legally permissible at first glance. This dissent resonates because it approaches constitutional interpretation through this transformative lens. Rather than asking only what government may legally do, his reasoning invites a deeper inquiry into what constitutional values require of those who exercise public power.

Such an approach reflects the spirit of Articles 10, 19, 20 and 259 of the Constitution, all of which require courts to interpret the Constitution in a manner that advances its purposes, values and principles rather than merely preserving governmental convenience. Judicial independence is often misunderstood solely as freedom from interference by the Executive or Legislature. However, here exists another equally important dimension, that of independence of thought. A truly independent judiciary is composed of judges who are willing to disagree with each other when constitutional principle demands it.

The dissent exemplifies this intellectual independence. It reminds us that judges sit as individual guardians of constitutional fidelity which may not always be in the unanimity of a decision. Indeed, constitutional democracies thrive when courts embrace reasoned disagreement. Dissent enriches constitutional discourse by exposing weaknesses within majority reasoning, identifying alternative interpretive paths and preserving legal arguments that future courts may find persuasive.

It ensures that constitutional questions remain open to continuous reflection rather than becoming prematurely settled by judicial finality. Within Kenya’s constitutional history, this is especially significant. The Constitution deliberately rejected the culture of unquestioned authority. It institutionalised participation, accountability, transparency and constitutional supremacy. Judges therefore have a constitutional responsibility not merely to decide cases but to contribute to the ongoing constitutional conversation. Dissent is one of the most important ways through which that conversation remains vibrant. It reminds both government and society that constitutional questions deserve continuous scrutiny, even when the immediate legal outcome favours the state.

Moreover, dissent performs an educative function beyond the courtroom. It speaks to scholars, advocates, legislators and citizens. It invites future litigants to refine arguments. It encourages academic debate. It influences constitutional culture. Many constitutional reforms across the world have drawn intellectual inspiration from dissenting opinions long before courts officially embraced those ideas. In this sense, a dissent is not written only for today’s litigants. It is written for tomorrow’s Constitution.

As constitutional history repeatedly demonstrates, dissents are rarely the final word, but they are often the first word of the future. They preserve constitutional possibilities that majorities may overlook. They protect principles before those principles become popular. They ensure that constitutional justice remains a journey rather than a destination. Ngaah’s dissent deserves to be read in that tradition, as a powerful reminder that constitutional progress is frequently born from the courage to stand alone.