Kenya’s constitution says that the currency of that country ‘shall not’ bear the ‘portrait’ of any individual. So, when new bank notes were issued earlier this year, depicting the Kenyatta International Convention Centre with Kenya’s first president, Jomo Kenyatta, clearly distinguishable, seated alongside the building, the question arose whether the new notes were constitutional. Two of the presiding judges felt they had to solve the legal conundrum by deciding whether the bank notes bore a ‘portrait’ of Kenyatta – or if it was just a picture of a statue.
The sharp-eyed petitioners in this case were former MP and now legislator in the East African Assembly, Simon Mbugua, with the director of Kenyans for Justice and Development, Okiya Okoiti. They challenged the constitutionality of the new bank notes for their depiction of the man regarded as the founder of modern Kenya, Jomo Kenyatta.
Their opponents in the matter were the Central Bank of Kenya, its governor and the Attorney General.
Judges Kanyi Kimondo, Asenath Ongeri and Anthony Mrima had a number of questions to consider, raised by the applicants. These included whether the public had been adequately consulted in connection with the new notes. But the most taxing question was whether the depiction of Kenyatta by way of a statue of the man, seated, next to the Kenyatta International Convention Centre, was constitutional.
The constitution – accepted by a national referendum in Kenya – is clear about the question of what should not be permitted on banknotes: ‘Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya or an aspect of Kenya but shall not bear the portrait of any individual.’
Though the images and symbols on money were to show the rebirth of Kenya and the country’s prosperity, yet there were no symbols of national unity on the new money, claimed the applicants.
The central bank on the other hand, argued that the image of Kenyatta on the notes was an image of a statue rather than being a portrait.
For Judges Kimondo and Ongeri the answer could be found by looking in a dictionary, preferably one that dealt with art and definitions of artistic terms. In such dictionaries they found the meaning of ‘portrait’ and compared that definition with ‘sculpture’ and ‘portrait sculpture’.
No doubt about it, they concluded, a ‘portrait-sculpture’ could not be a portrait unless it was ‘frontal and from the bust or head upwards’. A sculpture on the other hand was something ‘free standing’ and made from durable materials.
The court had visited the statue site and had seen for itself that the statue on the new currency was ‘not frontal but a full length image from the head of the first President to his feet’.
Neither of the applicants had been able to show that the ‘impugned statue’ amounted to either a portrait or even a sculpture-portrait. The picture of the statue on the currency was not frontal; ‘it is a sideway shot. It is a full-length representation of the first President from the head to his feet.’
On the question of public participation, the central bank said the public had been engaged, but in the interests of national security and the security of the planned new notes, it was important that the consultation process not take long.
Though the central bank asked for costs against the petitioners, the court said the matter raised ‘constitutional issues in the public interest’ and that each party should bear its own legal costs.
There was, however, a third presiding officer in the case, Judge Mrima. And he took a rather different view on the central artistic and constitutional question.
In a dissenting decision he considered what exactly the constitution forbade, and whether what appeared on the bank notes was an impermissible image or an apparently constitutionally acceptable ‘statue’.
In his view, any images that appeared on Kenyan banknotes should ‘not be of recognisable or identifiable persons’. This was because the relevant section of the constitution had as its purpose to mark the ‘rebirth’ of the nation and move away from ‘associating currencies with any person, persons, community, communities or even political leadership’. This in turn was to debunk the idea that political leadership was associated with any particular group.
During the court’s visit to the statue, the judges had seen that it was dedicated to Kenyatta and that the plaque was unveiled by the then vice-president of Kenya: no doubt then that the statue depicted a particular leader and leadership and commemorated their 10 years in power.
In Judge Mrima’s view there was no doubt that the ‘impugned statue is an image’. He had looked at the new notes and one of the images that clearly stood out was the statute. ‘The image is easily recognisable as that of the Founding Father of our nation. It is also enlarged and is not proportional to the tower. The statue commemorated 10 years of political leadership.’ He would have found that the ‘image of the impugned statue on the new currency’ contravened the constitution and, since the bank notes were already in circulation, he would have suspended a declaration of invalidity of the notes for a maximum of one year to allow a change over to ‘legally compliant currency notes’.
However, as he was in the minority on the matter, the final orders would be as proposed in the majority decision.
- Newsletter, Judicial Institute for Africa (Jifa), 3 October 2019