By Ndung’u Wainaina
In last month’s edition, this writer looked at reforms in the Judiciary and why sustaining them is necessary for the good of the country. The Constitution lays the foundation for a democratic, rule-of-law State, which guarantees equal opportunities for personal growth to all and contributes to the progressive cause of the nation. In order to guarantee that the role of the Supreme law of the land would inure to, and for, everyone and the promises made by it would not remain merely on paper, the Constitution makers made provisions for the independence of the Judiciary.
The Judiciary enjoys a very significant spot as the guardian and custodian of the Constitution. The rule of law, one of the most significant characteristics of good governance, prevails because of the existence of a truly credible, impartial and robust independent Judiciary. Such a Judiciary has an important role to play in ensuring better public governance.
The Judiciary plays a pivotal role in democratising a country through innovative and progressive approaches while executing its mandate. An independent Judiciary is the beacon of good governance and rule of law and adherence to this practice provides expansion of social opportunities, securing justice and accountability, empowerment and efficient delivery of public services.
Good governance attributes to the demand that a legitimate, accountable and responsible government improves the standard of living of the members of its society by creating and making available the basic amenities of life. A government beholden to rule of law and good governance provides citizens with security and the opportunity to better their lives while instilling hope for a promising future. On an equal and equitable basis, it ensures access to opportunities for personal growth while affording genuine participation by the citizenry, and accords it the capacity to influence decision-making in public affairs. It sustains a responsive judicial system, which dispenses justice on merits in a fair, unbiased and meaningful manner while maintaining accountability and honesty.
Genuine efforts yet to be seen
A robust independent Judiciary should be pro-active, meticulous and zealous in advancing constitutional values and the rights fundamental to human existence. The Judiciary needs to assert itself in effective promotion of the right to live with dignity, a healthy environment, humane working conditions, education, shelter and social security, information, adequate food and healthcare, and so on.
A judiciary that deploys its constitutional powers to effect such actions would be taking necessary steps to consolidate good governance that serves the citizens by safeguarding and securing individual security, rule of law and the delivery of services ranging from education, health, livelihood and food security. Proactive aggressive judicial actions will be uncomfortable to the ruling elite. However, its actions are a catalyst of not only transforming the state but also forcing into place an ethical and government of integrity with capacity and competence to formulate and implement sound policies, and ensure respect of citizens and state institutions.
According to United Nation’s Commission on Human Rights, the key attributes of good governance include transparency, responsibility, accountability, participation and responsiveness to the needs of the people. In a nutshell, therefore, good governance practices that Judiciary seeks to promote entail effective participation in public policy-making, the prevalence of the rule of law, system of institutional checks and balances through horizontal and vertical separation of powers, and effective oversight agencies.
The Constitution constructs a state whose major characteristics are: participatory, consensus-oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and faithful the rule of law and safeguard freedoms. It is also responsive to the present and future needs of the society. This is what Judiciary stands to uphold and protect.
Democracy, human freedoms and the rule of law together represent the troika. The struggle for a new constitution was about placing the authority and power of state in the hands of citizens. It was about an all-citizens binding legal instrument domesticating and determining what citizens want from public institutions, holders of public offices and the values they should embody. The State is not sovereign.
The constitution the country has today is not simply a statute, which mechanically defines the structures of government and the governed. It is a “mirror reflecting the national soul”, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the constitution must therefore preside over and permeate the process of the judicial interpretation and judicial direction. There are serious questions being raised as to whether the Supreme Court of Kenya is advancing the constitutional objectives and principles or if, in actual fact, it is undermining the constitution. This is a matter that requires serious reflection.
Transforming public services and institutions by ensuring they deliver to the most vulnerable in society, demands radical shifts in the political and social culture of public services and society in general. The language and practice of civic responsibility and social innovation linking to the needs of citizens should be the norm in public services, not an exception to the law.
This needs a judiciary that robustly breathes life to a purposeful meaning of the constitutional tenets through establishing quality, forward-looking jurisprudence that creates a rule-based governance system, resulting into public services that are innovative, creative and not risk averse, and which value long-term strategic thinking over short-termism. This is the challenge the Chief Justice, Judicial Service Commission and the entire Judiciary, especially each judge and magistrate, must take with utmost courage.
Liberty, rule of law and equality will only survive and thrive when playing pro-active role of state transformation. One of the most important principles of just democratic governance is the presence of constitutional limits on the extent of government power. An independent judiciary is important for preserving the rule of law and is, therefore, a most important facet of good governance.
Bold, committed, forward-looking
An efficient, effective and democratic government is the best guarantor of social justice as well as an orderly society. This is the powerful message judges of the High Court of Kenya delivered in their ruling declaring the Constituency Development Fund (CDF) unconstitutional and invalid. This kind of bold innovation does not happen by chance or piecemeal reforms. It requires a new generation of leaders committed to radical change, who see social innovation, civic creativity and people power as essential to public services.
National commitment to constitutional values greatly influences the content and the quality of governance. Sustained quality participatory democracy is at the heart of good governance. However, in its working, democracy has revealed several inadequacies. The chain of accountability from the Civil Service to Legislature and political authority is weak; follow-through at higher levels of government is poor; and compromised oversight by Parliamentary committees is part of the problem. Courageously, the Judiciary comes in to provide remedies to such glaring gaps in governance system.
Democracy has moved beyond periodic elections towards “good governance”. Citizens expect the state and its agencies to deliver high quality public service. When good governance is guaranteed, citizens go about their personal business and pursuits with enhanced expectations. Good governance helps create a healthy environment in which sustained inclusive economic growth becomes achievable. Conditions of good governance allow citizens to maximize their returns on investment.
Entrench rule of law
The Judiciary needs to understand that good governance does not occur by chance. The citizenry demands it. It is the duty of the Judiciary to render citizens the necessary support to ensure the state measures up to good governance practices and quality public service delivery. Accordingly, good governance is all about the demand for a political leadership that is accountable, a civil service imbued with a professional ethos, and enlightened policy-making. It is the Judiciary’s role to stamp out criminalisation of politics by ensuring legal jurisprudence that bars election candidates with dubious backgrounds from ascending to state offices.
The Judiciary has a responsibility to enforce good governance and the rule of law. It should demonstrate that no one is above the law and ensure that all Kenyans understand that the rule “of” law is different from the rule “by” law. Under the former, no entity, not even government, is above the law while the under the latter, law is an instrument of the government, and the government is above the law. It is under this framework that the rule of law not only guarantees the liberty of the citizens but also limits the arbitrariness of the government, thereby making it more articulate in decision-making and governance.