Between Activism and Restraint, The Supreme Court of Kenya Must Balance the Exercise of Judicial Power

SCOK

“We also speak knowing that it is our duty to ask ourselves what is the use of having a Constitution if it is not honoured and respected by the people. The people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights. The people know and believe that destroy the rule of law and you destroy justice, thereby also destroying the society. Justice of any other kind would be as shocking as the crime itself. The ideals of justice keep people buoyant. The courts of justice must reflect the opinion of the people.” – Chief Justice Madan in the case of Stanley Munga Githunguri vs Attorney-General (1985).

A functioning constitutional democracy requires a judiciary that is both impartial and independent. A judiciary that accepts it as its duty to give full effect not only to the letter of the Constitution guaranteeing fundamental rights and freedoms, but also its spirit.

For the letter killeth but the spirit giveth life.

In reality, judicial power is potentially no more susceptible to abuse or misuse than legislative or executive power but the difference is this: the abuse or misuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse or misuse of judicial power. Where there is no constitutional referee to review judicial wrongs, the judiciary’s responsibility becomes all the more onerous upon of its officers. It is therefore crucial for judges to remain conscientiously alive to the truth that with this potentially awesome breath of judicial power comes great judicial responsibility.

Most of us have read the recent judgment of the Supreme Court of Kenya (available here) in the matter of several Presidential Election Petitions challenging the Independent Electoral and Boundaries Commission (IEBC)’s declaration of Mr. Uhuru Kenyatta as the duly elected President of the Republic of Kenya. In this judgment, the highest court in the land purports to give reasons in detail why it unanimously dismissed the presidential petitions before it, effectively paving the way for the assumption into office of Mr. Kenyatta as the fourth Commander-in-Chief of Kenya.

At the heart of this 113-paged judgment on the “political-cum-constitutional” electoral process is a clear dichotomy between matters the Supreme Court Justices considered to be “constitutional-legal” and those they considered to be “political”, the latter being perceived as non-justiciable and beyond the competence of the court. For many, paragraph 203 of the judgment is crucial as it problematises the Judiciary’s role to give full effect to both the letter and spirit of the Constitution:

“…we express the opinion that, in the special circumstances of this case, an insightful judicial approach is essential. There may be an unlimited number of ways in which such an approach is guide the Court. But the fundamental one, in our opinion, is fidelity to the terms of the Constitution, and of such other law as objectively reflects the intent and purpose of the Constitution.” (Emphasis mine)

It is indeed tragic that the Supreme Court does not elaborate in any measure of detail as to what this insightful approach entails or whether their understanding of fidelity relates only to the black letter of the law or whether it extends in due measure to the spirit of the law.

Implicit in the court’s judgment is the acceptance that in the case of a Presidential election, the court should be guided by an approach of judicial restraint as the question before it is more political than constitutional-legal. Therefore the court was persuaded, with questionable arguments supported by equally questionable Commonwealth precedents, that the standard of proof in Presidential Election Petitions should be artificially higher than it ought to be so as to curb judicial intervention in matters where the electorate are deemed to have exercised their political choice by casting their vote.

It is ironic that in arriving at this troubling decision in favour of judicial minimalism, the Court was guided by the celebrated South African case of Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC). However the Court failed to distinguish this case from the case before it and crucially point out that the TAC case clearly illustrates that judicial activism in constitutional adjudication is viable and part of modern day constitutional jurisprudence. The passage lifted from the TAC case and referred to by the Court at paragraph 223 of the judgment was not the holding of the South African Constitutional Court in that case! The passage cited at paragraph 223 was the contention of the South African government’s counsel in an attempt to avoid being held accountable for its HIV/AIDS policies at the time. The South African apex court, however, held that no system of separation of powers is absolute, since “there are certain matters that are pre-eminently within the domain of one or other of the arms of government”. The South African court therefore found that it has powers to evaluate the reasonableness of measures taken by government, where they are challenged for being unconstitutional. Thus where appropriate, the theory of separation of powers would not preclude that Court from making orders that have policy implications, and such a ruling does not result in a breach of the theory of separation of powers.

The extent of judicial restraint exercised by the Supreme Court in its judgment is at the core of the collective disappointment shared by many Kenyans. In a well reasoned and must-read dissection of the judgment by seasoned constitutional lawyer Wachira Maina (available here), he opines:

“The unhappy feeling one comes away from this judgment with is just how stringent the standard that the Court imposes on petitioners is. And, conversely, save for the rather tame recommendation that IEBC be investigated and maybe prosecuted, just how so very lenient the standard by which IEBC’s performance has been judged is.”

In this vein, we should all take heed of the wise words of former South African Judge Albie Sachs who is currently a member of Kenya’s Vetting of Judges and Magistrates Board. In his eloquent judgment in the case of Prince vs President of the Cape Law Society and Others, Sachs reflected that: “Undue judicial adventurism can be as damaging as excessive judicial timidity.”

What Kenyans needed to see come out clearly in this judgment of Supreme Court was a balance between these two approaches of activism and restraint. In a country of vast inequalities and historical injustices such as ours, judges cannot afford to be textual, formalistic and mechanical in their interpretation of the Constitution. A purposive, contextual and liberal approach to constitutional adjudication is crucial as it provides for protection of fundamental rights and freedoms as against claims of state security and national stability.

In light of this judgment one wonders whether this judiciary will survive the potential onslaught led by rogue parliamentarians, kleptocratic cabinet ministers, and others who may have little regard for the Judiciary. After all, the Judiciary has no army or police force and neither does it have the power of the Purse. Judges are not elected and therefore do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

Therefore, the Judiciary relies heavily on the confidence bestowed upon it by the public for its independence and impartiality. In an earlier post, this blogger condemned the Executive Branch of Government in strong terms for interfering with the Judiciary through harassment and intimidation of its members including the Chief Justice. Indeed a functional constitutional democracy is one where the public is vigilantly alive to the important role played by the judiciary in protecting the rights and interests of ordinary citizens – including those that form the electorate.

However, the people of Kenya must always hold the Judiciary accountable and responsible for any and all exercise of judicial power. In the present case, it is our solemn duty and responsibility to criticise and lay blame squarely on each of the Supreme Court Justices that have individually and collectively misused the sovereign power donated to them by people of Kenya as enshrined in the Constitution.

If the loud silence that currently reverberates from many quarters of our country is anything to go by, the courts of this land must double their efforts to (re)build public confidence in the Judiciary.

Chief Justice Harassed and Threatened: Executive Must Apologise and Take Measures

“I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.” – Chief Justice Dr. Willy Mutunga, 20th February 2013.

Fellow Kenyans, make no mistake about it: “Eternal vigilance is the price of liberty”.

Yesterday the Chief Justice (CJ) made a public statement (available in full here) where he highlighted two seemingly isolated events that point to a calculated and sinister plot by those seeking to reverse Kenya’s constitutional gains, undermine institutional independence within the Government, and subvert the Rule of Law. Indeed, the CJ’s “poison-pen” letter and “small hiccup” at the Jomo Kenyatta International Airport (JKIA) must be cause for renewed “resolve of each and every Kenyan to protect our Constitution” because, after all, an injustice to one is an injustice to all.

Kenya is at a precarious moment in its history and with Parliament out of the picture, only two arms of government remain: the Judiciary and the Executive. As far as the “small hiccup” goes, the average observer can clearly see that this is nothing more than the Executive taking advantage of the fact that Parliament is no longer around to make noise and call into question the Executive’s move to blatantly undermine the authority and independence of another arm of government namely, the Judiciary. We must take comfort in the CJ’s statement as it exposes the Executive’s feeble attempt to ‘bend the ear, mind and resolve’ of the Judiciary through its head, the CJ.

The statement affirms that despite this intimidation, the Judiciary will uphold, protect and defend the Constitution and the Rule of Law. This incident at JKIA also illustrates the systematic disrespect of the Judiciary as an arm of government, where in the recent past we have seen the Executive failing to obey court orders and decisions. After all, one wonders, in the hierarchy of power and authority under the law, who is PS Francis Kimemia to bar the Head of the Judiciary from traveling, let alone the lone Immigration Officer carrying out the Executive’s bidding? Although it may not be in dispute that this Immigration Officer must “know people”, one is relieved that the CJ preferred to negotiate his way out of the situation rather than cause a scene at JKIA that may have ended up being politicised to remove him the Bench’s apex court.

On a personal note, this incident at JKIA should remind us all that our right to freedom of movement is enshrined in the Bill of Rights of the Constitution and specifically guaranteed under Article 39. Any limitation or transgression of this right or any other must not be treated lightly.

It is therefore fair, just and proper that the Executive through the very PS Kimemia do issue an unconditional and unequivocal public apology for abusing the powers that We, the People of Kenya have donated to the Executive under Article 1 of the Constitution. This public apology must also be coupled with the Executive’s deepest regrets conveyed to the Judiciary and its officers whom it needlessly harassed.

Moving to the matter of “the poison-pen letter” alleged to be authored by the outlawed Mungiki sect, one thing is clear: anyone thinking they can scare or intimidate the CJ is terribly mistaken. In another life, the CJ, Dr. Willy Mutunga had been a legal academic and a prominent human rights activist in Kenya since the 1970s. Indeed one wonders whether a man who has been hardened by mistreatment, arrest and detention under former President Moi’s authoritarian regime, would now feel the least bit intimidated or cowed by death threats from so-called Mungiki. Be it as it may, the issues of security during and after elections must not got unaddressed and the State is squarely responsible for guaranteeing that law and order prevails.

Finally, there are those who argue that this public disclosure by the CJ ought not have happened and instead the two events handled in camera between the relevant state agencies concerned. To many this argument may be ably challenged with reference to Article 35 on the right of access to information under the Constitution. In particular, attention may be drawn to Article 35(3), which requires that the State (which includes the Judiciary) must publish and publicise any important information affecting the nation. In a previous post, this blogger has discussed the import of Article 35 and argued that whistle-blowing and/or public disclosures must be made with due consideration for the hierarchy and chain of command within the public institution in question. In essence, public disclosures of information held by the State must be sanctioned by the highest authority concerned and the manner of disclosure must be clear and concise. In this present case, one must bear in mind that the CJ is acting not merely an individual but as the Head of a branch of government. Thus, to whom is the CJ supposed to make disclosure other than the People in whom sovereignty is vested?

What we all must learn from the CJ’s statement is that silence is not always the right option and that truly wise and brave Kenyans will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

Who Am I Voting For in 2012?

Vote For Nobody Graffiti

Someone asked me the above question and I told them ‘Nobody’.

They laughed.

I didn’t.

I don’t expect much of the government. I expect even less from the president as an individual. As far as I’m concerned, the majority of politicians seeking office aren’t competent enough to operate a smartphone, so why trust them with a country in the 22nd century? Continue reading

Raila, Bob and How Broke is Zimbabwe, Really?

You’ve got to hand it to African dictators leaders; their creativity when it comes to ensuring they remain in office is quite uncanny.

This one however, much as it may sound like a bad joke or something Uncle Bob would say to remain behind the Rhodesian reins, is actually fact. Zimbabwe is entirely too broke to have elections. So they won’t. Continue reading

Do We Love Or Hate Raila Odinga?

I don’t do politics. Or rather, I don’t do it well. I voted at the very last minute, and I ascribe to being truly Kenyan. I have no tribe. I get pissed whenever my daughter comes home from school with some tribal spew that she picked from a classmate.

Post Election Violence was frightening for me because for the first time, I saw friends judge my by my father’s tribe. I had people approach me in the office trying to get me to pick one side or the other. I had a stranger from *my tribe* walk up to me and talk ish about *that other tribe* in mother tongue. I pretended not to understand, so the Tanzanians watching us assumed that we were from opposing tribes. I guess I looked pretty hostile.

During PEV, I wasn’t in Nairobi. I was in Dar. I watched terrified but safe as CNN and Aljazeera aired the worst of the worst. I blogged about my feelings and received scathing responses. One reader suggested I should stop hiding in comfort, and that I should come back home and fight on the ground instead.

I sent him an email in response. I said it wasn’t his country burning – it was mine. I said he didn’t have family in danger – I did. I said I hoped he never felt as damaged and helpless as I did just then.

Whenever people in the news talk tribally, it shakes me to my core. It makes me remember just how bad things got, and just how bad things are. It shakes me even more that while some people are still living in tents on relief food, others are pretending to be IDPs so they can benefit from handouts. For every 3 genuine cases, there’s some leech trying to get what isn’t his – or hers. I know that’s human nature, but it stings, and it stings deep.

Today, while idling on Twitter, I tweavesdropped an exchange between @Nittzsah and @MisterNV, fellow members of the DR crew. I wondered what it was about, so I followed along to this article. It’s describes Raila Odinga from the writer’s perspective, which I fear is shared by a lot of people.

The writer feels that Raila isn’t serious or important enough to resolve the crisis in Cote d’Ivoire. He accuses Raila of political and ideological seasonal migration.

My hands always shake when I read stuff like this, because I fear that it will stoke idle fires. There’s still a lot of misplaced passion in the hearts of many Kenyans, and I’m afraid they’re just waiting for an excuse to let it out. So when I hear statements like this, I curl into a corner and start saying my rosary, and I’m not even Catholic.

Continue reading

Daily Dozen: 14/01

Kenyans and Their Peculiar Habits [Twitter]
Which is the best internet service provider in Kenya? [LikeChapaa]
“Ideally, elections are held to choose leaders, but in many cases in Africa, elections are intended to dress up despots in democratic garb.” [Guardian]
Somalia’s new PM says government troops will target Al-Qaeda “very, very soon” [IOL]
Why is Winnie Still Using the Mandela surname anyways? [BBC]
Can Europe Be Saved? [NYT]
Territorial Triumph and Geopolitical Pitfalls in South Sudan [HuffPost]
Once again, Africa is in love [AN]
Does race determine efficiency? [WT]
Things Your Boss Won’t Tell You [Yahoo!]
The Science of “Single”: One Year’s Worth of Dating Advice [TIME]
Why doing a PhD is often a waste of time. [Economist]

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