Law Society of Kenya v Attorney General & another [2021] eKLR social and political or otherwise. Lastly, although the question of the election date of the first elections has evoked overwhelming public opinion, public opinion as the High Court correctly appreciated, has minimal role to play. The court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be guided by the letter and spirit of the Constitution. 63. In Advisory Opinion Application No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, the Supreme Court spoke to purposive interpretation of the Constitution. It had the following to say: …The approach is to be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution. 64. The Court went ahead and gave further meaning of the term purposive by making reference to the decision in the Supreme Court of Canada in R -vs- Drug Mart (1985) when it made the following remarks: The proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect...to recall the Charter was not enacted in a vacuum, and must therefore... be placed in its proper linguistic, philosophic and historical contexts. 65. The Supreme Court, while referring to the South African Constitutional decision in Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC), went further and stated that a purposive approach is ‘a generous interpretation... suitable to give individuals the full measure of the fundamental rights and freedoms referred to.’ 66. The Learned Judges of the Supreme Court further agreed with the South African Constitutional Court in S -vs- Zuma (CCT5/94) 1995 when it stated that in taking a purposive approach in interpretation, regard must be paid to the legal history, traditions and usages of the country concerned. 67. The Supreme Court embellished the need to pay attention to legal history while interpreting not only the Constitution but also statutes. It observed as follows: 8.11 This background is, in my opinion, a sufficient statement on the approach to be taken in interpreting the Constitution, so as to breathe life into all its provisions. It is an approach that should be adopted in interpreting statutes and all decided cases that are to be followed, distinguished and for the purposes of the Supreme Court when it reverses itself. 68. The Court of Appeal while dealing with holistic interpretation of the Constitution in Civil Appeal 74 & 82 of 2012, Centre for Rights Education and Awareness & Another v John Harun Mwau & 6 others [2012] eKLR stated that the entire Constitution must be read as an integrated whole and no one particular provision destroying the other so as to effectuate harmonization principle. 69. Having looked at the manner in which the Constitution and statutes ought to be interpreted, I now turn to the issue as to whether the directives issued by the NSAC and adopted by the Cabinet are constitutional. 70. I will begin this discussion by unbundling the legality of NSAC. Whereas the Petitioner contends that NSAC is a non-entity, the Respondents posit that NSAC acted on behalf of the Cabinet and given that the directives issued by NSAD were eventually ratified by the Cabinet then the legal standing of NSAC is immaterial. 71. The impugned directives were issued on 7th 0ctober, 2020. The directives were issued by Dr. Joseph K. Kinyua, EGH, on behalf of NSAC. Dr. Joseph K. Kinyua, EGH, described himself as the Head of the Public Service and Chairperson of the NSAC. Whereas the Respondents politely avoided to disclose what NSAC is, there is no doubt that it is somewhere within the administrative structure of the National Executive. I say so because according to the Replying Affidavit sworn by Kennedy W. Kihara on behalf of the 1st Respondent, NSAC has a membership and its decisions are ratified by the Cabinet. 72. Be that as it may, Article 260 of the Constitution defines a ‘person’ and a ‘state organ’ as follows: - http://www.kenyalaw.org - Page 20/34