The MPs’ Salaries Case: A Triumph for Constitutional Supremacy in Kenya

Gado on MPs Salary Raise

“Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.” – Judgment in Petition No. 227 of 2013 at paragraph 82.

The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.

In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.

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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.

Fallacies of Equality and Inequality: Will Our Rights Lie in Limbo At the Pleasure of the State?

ALL MEN CREATED EQUAL

“…Having celebrated the repeal of Kenya’s older Constitution that legitimated discrimination in the areas of adoption, marriage, divorce, burial, devolution of property on death and personal law, I expected that the new constitutional dispensation would make the quest for equality and non-discrimination on the grounds of sex easier. However, in the short period that the Constitution has been in operation, the fallacies of the constitutionally entrenched principle of gender equality have become apparent in the areas of political representation and appointments to offices.” – Prof. Patricia Kameri Mbote, SC., 24th January 2013.

Kenya’s new constitutional dispensation is a radical departure from the old order and therefore it must be expected that there will be resistance to admission of new entrants by those so-called gate-keepers currently enjoying rights. My argument back then and now is that the task of implementation of the Constitution, by and large, remains in the hands of certain bureaucrats bent on exploiting society’s inherent inequalities and exclusions for their own selfish gains. Therefore, even where the supreme law steps in to try and redress these inherent incongruences, its success is wholly dependent on implementation. Herein lies, what Prof. Kameri Mbote terms, a “discernible chiasmus in the practical application of equality and non-discrimination which results in discrimination”.

In previous posts here and here, I have tried to shed light on the centrality and importance of the Equality and Non-Discrimination provision in the Constitution. In this connection, I concur fully with those that lay sharp emphasis on the role of the judiciary as the guardian of constitutional norms and values as well as being the primary institution charged to breathe life into the Constitution through interpretation.

Sitting in a packed auditorium listening to Prof. Kameri-Mbote giving her Inaugural Lecture, I couldn’t help but wonder whether our judiciary so far has been performing its crucial role as vanguard of equality and non-discrimination which includes demanding fidelity to the Constitution by the executive, the legislature and the public.
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Need I Remind You, Mr. Politician?

A letter from one Wanjiku, who you often assume is too shallow to understand the complexities of the constitution, but who you forget wasn’t too blind to read and understand it.

Dear Member of Parliament,

It is my little understanding that laws are what govern every creature in the universe. Whether it be the law of gravity, or the law of the jungle, religious law or customary law. Every creature, great or small operates within certain laws. It’s what maintains balance, peace and in human society, social order.

What you and your colleagues are having a hard time accepting is that we now have a new world order. A new Kenyan order, if you like. The minute we promulgated the new constitution was the very minute the CHANGE we so sought, fought over and voted for came to effect. On that day, 10 months ago, we assumed a new law.

And no matter one’s positions of power or stature, President, Prime Minister, MP or such, every Kenyan is required to abide by the highest law of the land – not the highest office.

The difference between the new constitution and anything new you will ever come across in your lives is that it didn’t become part of the system, it became THE system.

That said, I believe it’s time to drop the word “New” from New Constitution.

There can only be one law above all laws. No old or new law, that operates in the same land. Granted, there is a place for transition, but provisions and exception would have been placed in the current law, to guide such transitions in various institutions. If they do not exist, then they are null and void.

Kindly note, a “gentleman’s agreement” made over a couple of drinks or cast in the video clip of an avid journalist’s camera, holds no ground in front of the law. But should you wish to challenge such an agreement, you might as well do so within the provisions of the law. The law, which I, in my assumed idiocy, and tax-paying humbleness, voted for.

It always boils down to me.

It’s me who cast my vote that saw you take that parliamentary seat. It’s my meager taxes that run this country and pays your salary. That’s right.  It’s ME with the power!

And if you doubt what I am capable of, then now take note that it is my figurine now residing in the Chief Justice’s chambers. All numb, deaf, blind and dumb as you’ve always perceived me to be. Yes, they carved out a statue for me.

And statues are carved out for heroes.

Men and women who give their lives so that others may live a better life than they do. Poor people who give everything they’ve got and do not expect anything in return. Patriots who do not protect their selfish interests but instead defend the interests of the nation. Ordinary people who do not need positions of leadership to make a positive change in this country. All they need is power.

And I am the one with the power. All you have is an office, one that was created for you to serve me. The one thing we have in common is the law. And we are both bound by it.

Need I remind you?

See you in court,

Wanjku.


Daily Dozen: 18/01

Africa: a continent drenched in the blood of revolutionary heroes [Guardian]
The Brutal Truth About Tunisia [Independent]
New Constitution Sets New Standards for Privacy and Data Protection [MM]
10 Even More Useless Cars [Your Favourite Blogger’s Favourite Blogger]
You never thought it could happen to you? [Archer]
Africa’s economic growth picking up [CNN]
Cry child, cry [BikoZulu]
In honor of MLK: Rare & unpublished photos of the civil rights movement [TIME]
Kenya must graduate from ethnopolitics to geopolitics [EAS]
Golden Globe Award for film shot in Rift Valley [DN]
Transforming Africa Through Higher Education [NYT]
Zimbabwe bid to host World Cup in 2015 [BBC]

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Why Are Guns Illegal Again?


I talk about guns a lot. Usually it’s how cops mishandle them, or kill innocent people with them, or kill people that they claim aren’t innocent with them. I also at some point mentioned that I had my own small arsenal and am quite a fan of the science/art behind firearms.

But also, it’s a matter of principle. Continue reading