BY DR WILLY MUTUNGA
Since the promulgation of the Constitution of Kenya 2010, the Senate and the Judiciary have engaged each other out of necessity – often as each other’s client and hardly ever as two organs of State commanded to find common ground in how best to realize the aspirations of the people. I hesitate to say this meeting has been left too late. The first years have been important for all institutions to internalize the role the Constitution created for them and find balance. We come together today, therefore, to illuminate the constitutional roles and duties of our two important institutions. It is not and must not be seen as a conspiracy against the Constitution but rather a conversation on its implementation to further the rule of law.
The Judiciary is keen to engage both Houses of Parliament with dialogues of this nature. Only a couple of months ago, the Judiciary and the Judicial Service Commission had highly informative and productive retreats on a wide range of issues with both the Legal and Justice Affairs as well as the Budget and Appropriation Committees of the National Assembly. The conversation we are having today is a continuation of these sorts of dialogues, and which we, as the Judiciary, under the Judiciary Training Institute, are willing to provide leadership on. The Judiciary looks forward to hosting a joint session with both Houses, and another with the Executive as well, and a third with all the three Organs of State on the subject matter of this conference. We may have our independent roles in the making, interpreting, applying or enforcing the Constitution, but the success of the rule of law is a joint venture.
As I have always said, ours is a new Constitution that is so progressive that a majority of our elite may not even recognize its revolutionary thrust. For many, in its dispersal and rearrangement of power; in its values, standards and spirit with respect to integrity, equity, equality; in its directives and demarcation of the boundaries of power; in its detail on the canvass of rights; it is terra incognita. And therefore its implementation will face challenges. We must realize that we are the first generation of leaders under this great Constitution and foundations we lay in its implementation will have a strong bearing on its success or failure, the challenges notwithstanding. What will prevent these challenges from becoming crises is the manner in which we, as leaders, manage the emergent difficulties. If we assume a permanent gladiatorial posture, if any slight hint of discomfort or displeasure, or disagreement or difference of opinion is expressed in rabid and condemnatory language; if brinkmanship and one-up-manship becomes our modus operandi, then you can be sure these challenges will morph into a crisis. We shall be failing in the duty to nurture our constitutional democracy. It is easy to descend into the arena of public insults, but that takes away our dignity as leaders and saps away public confidence in our institution and democracy. We must give people hope.
One cannot pretend that there will not be moments of friction and difference. Indeed, the principle of checks and balances, even the theory of separation of power – those holy grails of modern constitutional democracies — are, by design, intended to be inconvenient to all the organs in state. We must check each other in a manner that does not undermine our respective functions or in a manner that offends the Constitution or in a manner that shouts down the other organ when it does its job.
The Judiciary’s outreach to other stakeholders and agencies, including the public, is underpinned by our philosophy which underlines the belief that, in the discharge of our constitutional mandate, a Judiciary that has an organic connection with its social reality develops a better jurisprudence without compromising on its independence. Aloofness, distance, may cloak us with an aura of authority and mysticism, but it also begets irrelevance in judicial conduct and pronouncements. So we shall continue on the path of these engagements but retain our fidelity to the Constitution and our oaths of office. We shall interrogate the law on its own merit and by the evidence adduced. These conversations pose no threat to past, present and future parties as our judicial officers know the requisite boundaries. The whole essence of the oath of office is to remind judicial officers that they must interrogate the law independent of the social or personal biases that abound around them.
This dialogue must be encouraged and nurtured so that it becomes a constant feature of our continuous engagement. Parliament is the voice of the people and the Judiciary exercises its authority on behalf of the people, but the Constitution is supreme. The framing of different interpretations of the roles of State organs as supremacy contest is misinformed at best and mischievous at worst. In numerous instances, the Constitution and the law decree how the various organs are to relate. We can smooth these dry legal processes by bringing the human element to the discussion. For example, in the past two years, I have submitted, as required by the Judicial Service Act, two reports on the State of the Judiciary and the Administration of Justice to the two Houses of Parliament. I have had the reports gazetted and released then to the public as by law required. However, neither of the two houses of Parliament have debated nor adopted those reports despite sending each and every member a copy.
It is my hope that our conversations will lift the veil on many of the difficulties that constrain dialogue between our two institutions, and still retain the hope that Senate will consider, debate and adopt these reports.