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.

What the World Thought Of Kenya’s Presidential Debate

Kenya’s 1st Presidential Debate held on Monday night was indeed a historic event viewed and listened to across the country and beyond our borders. Our local media did a great job covering the event live, while regional and international media outlets offered post-event coverage and analysis of the debate.

Close to 100 regional and international media brands found our debate newsworthy. Among them were Aljazeera, BBC, The Guardian, TIME, New York Times, Yahoo News, VoA, Washington Post, Fox News, Global Post, ABC  News and so many more.

It was a sobering reminder that the world has, is and will be watching Kenya as the General Election draws nigh. Whatever their reasons, be it the 2007/8 post election violence or the ICC cases that followed soon after, or the fact that Kenyans on Twitter (#KOT) had the debate trending for hours, this on a day when the Pope announced that he would be resigning.

Yeah that’s us.

While we found this international attention certainly flattering, we couldn’t help but take note of the comments below articles posted online on various news sites. Here are some we found rather interesting:-

On Yahoo News

“Are gay rights on the table???”

“Hopefully Obama will win this one.”

“So how can they do that (debate) when we have their village idiot over here”

“Where are the white candidates?”

“What no white people, Kenya is nothing but a bunch of racist”

“Why all of a sudden does Yahoo post Kenya news?? If Obama is an American citizen then why should this even be news??”

“Gosh now were going to get Kenya news force fed to us, Because that’s where King Obama is really from…”

On  Al Jazeera

“The win by Uhuru is imminent.The West should start leaving if they can not put up with his administration.”

On the Daily Monitor

“I am looking forward for such debates in our country-Uganda.” 

“Debating is civilized but shooting at opposition is criminal. Kenya is always ahead of Uganda it seems these days, but in early Independence days Uganda was ahead.”

There is a lot to learn from all the comments on these articles whether they be ridden with humour, hate speech, admiration or blatant ignorance.

For us back at home, this debate as historic and memorable as it has been for both Kenya and indeed the African Continent exposes a nascent constitutional democracy grappling to break free from its past.

Kenya’s politics is still largely driven by personalities and less by issues and even less by ideologies. The chorus of candidates hailed the Constitution as the progressive and powerful legal pact that it is, yet none of them were able to convincingly pin-point what exactly are the stumbling blocks in its implementation three years since its promulgation.
The average viewer was left unclear on how the candidates would work with the institutional framework under the Constitution and the areas of weakness or failure in its implementation as spearheaded by Kibaki as President

#KenyaAtWar: Terror, Fear, and the Beginning of the End

Before I get started: Please remember to register as a voter. Deadlines are approaching, it’s a quick and easy process.

war_is_peace_by_bloodleach-d3im67l
People are talking about the 2013 Elections with a quiver in their voices. It’s hard to pretend you haven’t considered that violence could erupt, like it did last time.

I was fortunate enough not to be around during Post-Election Violence in 2007.

I was somewhere in Obamaland pursuing that elusive piece of paper they call a Degree. Also, making wasting money.

At the time, it wasn’t Obamaland yet.
It was still Bush America. Worse still, post 9/11 Bush America where Muslims and immigrants were blamed for every problem in the US. Continue reading

“Why I Will Not Be Voting” by @iFortKnox

Guest blog by @iFortKnox

Vote For Nobody Graffiti

I grew up a lone child and since I lost my mum when I was seven, it was just me and my dad until my teenage years when I was sent to boarding school.

Living with my dad, I was exposed to a lot of life experiences either through practical participation or historical narratives. My dad reads a lot. I mean A LOT. And he’s not much of an outgoing person unless it’s a church-related function, which he had a lot to attend because he was and still is a catechism facilitator. So when he wasn’t involved in any of those church functions, he’d just stay in the house reading, listening to music, and when he’d get bored with all that, I was the only human being around he would have conversations with. We’d talk about virtually everything, from religion and specifically why I didn’t like church and church-like stories like why I shouldn’t eat white meat, women, and our clan back in the village, my education, and sports – he was a very good hockey player back in his school days and lots and lots of history. That is how I spent most of my weekends. Week days were play days for me.

That is how I gained interest in politics, reading and discussing politics. Continue reading

A Disappointing Breed of Kenyan Teachers

Among the things I’m passionate about is teaching. Having had a short stint in the profession as a college lecturer, I’m certain that, given a chance, as a “retirement” option, I will share some knowledge with a few students, and they will in turn educate me as well. It’s a two-way process. And a very fulfilling one.

Now, a close of friend of mine recently told me that he intends to find his son a place in a different high school. The boy is currently a Form 2 student in an X Secondary School in Machakos. I inquired from my friend what was wrong with the school? Were the facilities wanting? Was the food bad? Was the performance poor? He said all these things were in order. What he had a problem with were the teachers.

See,  when my friend accompanied his son to school after a student’s strike. He was shocked to discover that the teachers were “way too young” and if not for the fact that they didn’t wear school uniform, he would have mistaken them for students. He recalls one who, despite it being a weekday was clad in sagging jeans, a t-shirt and sandals, going to class to teach.

Neither in his (nor my) days as a student, was this acceptable. Perhaps my friend and I are old-fashioned for demanding that teachers assume some sense of decorum. I remember when I began teaching, I had to adjust my wardrobe from something other than what I wore to class in Uni. Also, there was no way I was going to wear six-inch heels and a mini-skirt (with or without tights). But then I see some of you going to your fancy jobs dressed in that. It’s one thing to hide your thighs under an office desk from 9 to 5 and another to stand in front of young, vulnerable minds with your thighs exposed. How this is not common sense, I don’t know.

Perhaps that’s why, the students of Rwathia Secondary School got their way and had their parents and teachers give in to their demand  for short, tight skirts. Did anyone bother to ask the girls  exactly what purpose the new skirts would fulfill in their quest for an education and good grades? Also, why exactly did the teachers give in to this request? Would they be surprised if come next year the girls demand that the school dispensary start stocking oral contraceptive and that each student be given their ration every month?

Back to Machakos and we meet another breed of teachers who wanted to treat themselves to a  trip to Mombasa. Only problem is, they didn’t have the money. So they demanded that each parent fork out Kes.2,500 to meet their expenses of this luxurious trip. All this time, the parents thought the teachers were joking. But when they didn’t pay up, their children were sent home. Now, here’s what makes me think TSC should fire these teachers if not line them up and execute them:-

1. Do these teachers realize that some of these parents cannot even afford a trip to Mombasa, and have never been to Mombasa in the first place?

2. The teachers say that the trip is “a way of motivating them to work harder and post better results.”  Wait a minute? Who’s supposed to post results, is it the students of the teachers?

3. Are there more pressing needs in this school (perhaps facilities that require an upgrade) that this money would instead help meet.

4. Is this even legal? If not, can the students and their parents sue the school board?

5. What kind of example have these teachers set for their students? What will they become as employed adults? Will they go on strike when their employers fail to finance their company retreats?

I don’t know whether we are just a frustrated lot of Kenyans who cannot think clearly anymore. It’s like we’ve all lost it. And who can turn things around? Is it the students who clad in miniskirts seem to be training for a career on Koinange Street? Is it the parents who don’t mind if their daughters attract the wrong attention? Is it the teachers who would fleece their way to Mombasa? Remember the teachers are parents as well.., of some equally crazy children. Is it KNUT and KUPPET who are busy trying to get their wages sorted, and who will then claim that their members cannot afford a trip to Mombasa? Is that what they’ll strike over come 2017?

We’ve failed our children people. And they will in turn fail us, if they haven’t done so already.