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.

Enlightened Self-Interest: Towards An East African Federation

“Integration is more than five presidents meeting in Arusha and patting their backs on an illusionary integration” – Ahmednasir Abdullahi Anonymous

As we speak there is an East African Legislative Assembly (EALA) Symposium taking place in Arusha, Tanzania themed: “A Decade of Service towards a Political Federation”.

Now, I may not have been born in the Seventies, but I’ve heard stories of how things were especially between my country and its neighbours. The most vivid accounts were of the icy relations between Kenya and Tanzania. Relations hit their lowest ebb in the mid 1970s. At one time, the late Mwalimu Julius Nyerere was so frustrated by the late Mzee Jomo Kenyatta’s capitalist economic policies, he angrily described the Kenyan leadership as being made up of “nyang’aus” (‘hyenas’) and the country as a ‘man-eat-man’ society. This description has stuck, the mistrust and mismatch of ideologies and practice has persisted till this very day.

As for our other neighbour Uganda, we have all witnessed the on-going dispute over the Migingo and Ugingo islands. I didn’t know what big of a deal it was until Museveni arrived at our Promulgation ceremony last year and he was pelted with boos and chants of “Migingo is ours!”

That said we were all filled with hope in the EAC, when the Common Market was officially launched around this time last year (remember the google doodle? Awesomeness!). But a political federation is a whole different ball-game. A federation is ofcourse a worthy goal but it calls for a bold and visionary leadership by the five Heads of State to succeed. For, beyond greater economic integration, it requires political will and unity of purpose. That is where the catch lies.

Are the political leaders of the five countries capable of matching their well-intentioned sentiments with concrete action to integrate the five countries politically?

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