Constitutional morality vis-à-vis societal morality and populism: An interrogation of the Eric Gitari 2 and Ahmad Abolfathi Mohammed Decisions

Abstract

The post-war constitutions eschew the reliance of public opinion in adjudication, it alternatively encourages courts to follow a principled, law-based adjudication. It is on this basis that this paper suffices. This paper seeks to show that the 2010 constitution has successfully moved us from the dark ages of societal morality to an era of constitutional morality. However, this paper notes and regrettably so, that our courts have sought to return us back to those days. This paper will critique the Supreme Court’s majority decision in Mohammed and the high court’s decision in Eric Gitari 2. Similarly, this paper will celebrate the Minority decision in Mohammed.