Dilemmas for the Judiciary

In the ongoing ‘judicial activism’ conversation, judges must not lose themselves in ambiguities of rule of law viz-a-viz separation of powers


In an interesting and stimulating article in the October issue, Professor John Harbeson raises the question of the place of the Rule of Law, as a component of democracy, in developing societies. While the Rule of Law is a critical aspect of democracy in advanced economies, he considers that there has not been much discussion of its relevance to newer states engaged in the tasks of development. He poses the issue thus:  “But what is the role of the judiciary to be where the executive and parliamentary branches of government are particularly charged with promoting social and economic justice for millions of citizens who have known little of it, for upholding civil and political liberties previous extensively violated by authoritarian governments, and for enhancing the identity of still developing countries in an international order dominated by more powerful countries?…That upholding human rights involves social and economic as well as civil and political rights is well understood, but not what doing so entails for the meaning of the rule of law”.

His reflections are triggered off by the designation by Chief Justice Mutunga of Kenya’s 2010 constitution as “transformative”.  A number of countries in Africa (prominently South Africa) and in Latin America (prominently Bolivia) have adopted such constitutions.

Transformative or, as they are sometimes labelled, radical constitutions aim at the fundamental restructuring of society and state with a view to social justice, as opposed to the more conservative constitutions which merely seek to protect the status quo – for long time the standard mission of constitutions. Harbeson’s assumption seems to be that the Rule of Law is feasible (and indeed necessary) for the conservative constitution (and perhaps market economies) but most likely does not fit a transformative constitution. Why does he think that?

Picking up from CJ Mutunga’s elaboration of a transformative constitution, in particular a key and activist role for the judiciary, Harbeson considers that the Rule of Law would not be observed closely; it must give way to other priorities. He quotes Mutunga’s explanation of the role of the judiciary in a transformative constitution, that the judiciary is being asked to play a more creative or at least an active role in the transformation of society, than is implicit in the general understanding of the Judiciary’s role under the Rule of Law.

He quotes Mutunga’s theory of the approach of the judiciary towards the interpretation of a transformative constitution as follows – as one “that shuns positivism, that accepts [that] judges make law”, thereby “establishing the judiciary as an institutional political actor.” For his part, Harbeson explains the traditional role of the judiciary thus: first, under a conservative constitution, the judiciary is required merely (but freely and fairly) to apply the existing law to the facts of the case; secondly, Anglo-Saxon jurisprudence fundamentally commits judges to “finding” the law, not making it which is the province of the legislative and to some extent the executive branches of democratic government.  This theory is deeply rooted in the European medieval origins of modern Anglo-Saxon jurisprudence in which the very idea of legislating law itself had not yet been established.

By sharp contrast, Dr Mutunga’s conception of transformational jurisprudential explicitly entails judges “developing law in a way that responds to the needs of the people and to the national interest.” He considers that Mutunga’s approach departs from the Anglo-Saxon theory that judges are constrained by the principle of stare decisis, the Latin term which means literally “to stand by things decided,” to abide by precedent in cases and controversies brought before them. To be fair, he elaborates that “Dr Mutunga would [not] disregard precedent so much as he would regard it is insufficient in and of itself in for what constitutional jurisprudence needs to be in the context of new evolving developing country democratic states.”

Thirdly, Harbeson say that “it is axiomatic in Anglo-Saxon jurisprudence that judges are to be apolitical. They are to stand outside the explicitly political processes of democratic governance in order to enforce the cardinal principle that democratic governance is governance of laws, not of men (or women).  Judges are to be the guarantors that everyone plays by the basic rules of the political game as enshrined in constitutions. Dr Mutunga’s theory of transformative constitutionalism, however, makes the judiciary an “institutional political actor” in order to ensure that the law develops in a way that serves the interest of the people in socioeconomic and political transformation.”

Before I turn to the ramifications of this debate, I want to clarify that Professor Harbeson is not, as I understand him, opposed to the more activist role for the Judiciary. He acknowledges that “the Chief Justice’s philosophy, in several senses, liberates constitutionalism from the boundedness of traditional Anglo-Saxon jurisprudence”. He also recognises that in common law countries judges do depart from precedents, and some judgments do create new law. Nevertheless, he considers that the Rule of Law will suffer under the theory of “activist judiciary’—in particular in regard to harm “the fundamental tri-partite division of democratic governance between legislation, administration, and adjudication.” The truth is that judges have always made laws by their interpretation or distinguishing the case before them from similar cases from the past – and this is increasingly acknowledged by the judges, and no where so than by the US Supreme Court.
Contemporary understanding of Rule of Law
The notion (and the superiority) of the Rule of Law goes back a long time. However, it was popularised (at least in the Common Law countries) by Albert V Dicey in late 19th Century. His conception of the Rule of Law was narrower than some other understandings of it, in part because the rule of the parliamentary sovereignty in Britain precluded formulation of the rule of law that would restrict that sovereignty. In essence, it was primarily procedural.

A major breakthrough happened at a meeting of the International Commission of Justice in Delhi in 1959 (some years after India’s post-independence constitution) when it adopted a wide conception of the Rule of Law, bringing within its scope the notion of social justice.

The three elements of the rule of law that were agreed upon by a large international gathering of judges, lawyers and politicians were: (1) The individual is possessed of certain rights and freedoms and that he is entitled to protection of these rights and freedoms by the State; (2) There is an absolute need for an independent judiciary and bar as well as for effective machinery for the protection of fundamental rights and freedoms; and (3) The establishment of social, economic and cultural conditions would permit men to live in dignity and to fulfil their legitimate aspirations.

Since then the concept has been widened further. The United Nations has written, introducing the Secretary-General’s 2004 statement of the understanding of the Rule of Law: “The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.”

The Secretary-General defined the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

In 2008, a major international gathering of judges, lawyers and politicians brought together by the American Bar Association, adopted an even wider conception of the Rule of Law, where: (1) The government and its officials and agents as well as individuals and private entities are accountable under the law; (2) The laws are clear, publicised, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property; (3) The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; (4) Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

More concretely, the rule of law entails constraints on powers of government; where there is no corruption or bribery; fundamental rights are protected; society assures the security of persons and property; regulations are fairly and effectively implemented and enforced; ordinary people can resolve their grievances peacefully and effectively through the civil justice system; the criminal justice system is effective; and finally, the availability of customary and ‘informal’ systems of justice – including traditional, tribal, and religious courts, and community, where the people want them.

It is clear that the concept of the Rule of Law has travelled a long way since Dicey. If his concept was a bit limited, the modern formulations are very broad, depriving it of any specificity. But there is no doubt that many components of the contemporary understandings of the Rule of Law are important political and constitutional values, and we would now expect to find them in a constitution. There is indeed virtue in maintaining a narrower but specific notion of the Rule of Law; otherwise it might lose its value and importance.

Fortunately for us in Kenya, this is not a serious problem since the Constitution reflects all these values and objectives and not much hangs on its precise scope. The rule of law is recognised as an important value, in the preamble as well as in Articles 10 and 174(1)—and in other places, implicitly. The expression itself is not defined. Given that it appears in Article 10(b) which contains all the national values and principles, one would be justified in taking the narrow and specific view of it rather than the broader views taken in the above examples.

Willing to compromise?
However, it is likely that the primary focus of the rule of law in the Constitution is the legal order, and particularly the role of the Judiciary (Article 159 which sets out the functions of the Judiciary emphasises more than once its role in ensuring “justice”)—and, as we shall see later, it has the primary responsibility to answer questions about the meaning of constitutional provisions and ensure their enforcement.

Harbeson’s anxiety about an activist role for the Judiciary is connected with the maintenance of another important constitutional principle: the separation of powers—the fear that the courts will trespass upon areas reserved for the Legislature and the Executive (Harbeson expressed his concern about the “political role” of the judiciary as claimed by the Chief Justice). Concern about the efficiency and integrity of the Judiciary has focused attention on its ability and its immunity from direction and discipline by Parliament or the President. The Chief Justice is also aware of the dilemma and has argued that the three branches should have dialogues “to be on the same page”, compromising “fundamentally important judicial independence”.

Checks and balances
The problem is confounded by the fact that the separation of powers itself does not have clear contours. But since the issue of the role of the judiciary has arisen in the context of its relationship to other arms of the state, it is necessary to say something about the concept of the separation of powers.

The Constitution does not seem to place any particular value on separation of powers, though both politicians and judges have accepted that it is a principle of the Constitution. It does not feature in Article 10 (2) which is the primary source of constitutional values and principles. In fact, it appears only twice in the Constitution (both times in the chapter on devolution), first in Article 174(i) (“Objectives of Devolution”), an objective being “to enhance checks and balances and the separation of powers”, and Article 175(a): “county governments shall be based on democratic principles and the separation of powers”. It is not clear whether checks and balances and the separation of powers are to operate within the framework of devolved governments only or nationally. Article 175 leans in favour of the first hypothesis; Article 174 is more ambiguous.

The concept of checks and balances is even more problematic. Some writers equate the separation of powers with checks and balances. But the two, though connected, are separate. The separation of powers is about the distribution of powers among institutions (typically law making, running the government, and adjudicating). Politicians and the Judiciary have used this distribution as the basis of the separation of powers—in this they are, of course, right, but not if the implication is that each branch has exclusive control over the exercise of its powers. The proponents of the separation of powers, including Montesquieu, realised that there was always the danger that each of the institutions would accumulate more and more power within its domain, and abuse it.

It was to prevent this abuse of power that the concept of checks and balances was devised. Under this principle, one holder of power can review the activities of another, and or decide on their validity—and in this case even restrict the exercise of certain powers. There can be the separation of powers without checks and balances, but there cannot be checks and balance unless first there is the separation of powers.

The degree of interaction between the various arms of the state varies a great deal between even like-minded states, as in Europe—though the role of the judiciary has been expanding. The question is which arm of the state can check the others, and to what extent.  Here, I would suggest, there is no point turning to Montesquieu and kindred theorists, but to our Constitution, which sets out in considerable detail the relationship between the different arms (including independent commissions).

There is no doubt that the Judiciary is under attack from the Executive and the Legislature. In recent months, both the President and Parliament have criticised the judiciary for “interfering” in their work. Recently the President was reported as having invited the Chief Justice and Speakers of the two Houses to discuss these complaints. And a constitutional amendment Bill was introduced in the National Assembly to prohibit the courts from interfering with matters pending consideration or procedures before Parliament.

The Judiciary has also been attacked for not paying due “deference” to the other arms of the government, and the Chief Justice has been summoned by a parliamentary committee to answer questions about his involvement in dubious financial dealings. The courts have on occasion directed both the legislative and executive authorities as to the scope of their powers. Some parliamentarians state that even if the Judiciary can intervene, it should desist from doing so because of the “deference” they owe to MPs who “speak  on behalf of the people”, thus commanding higher authority than non-elected judges.

Primacy of the Constitution
We may, however, question the relevance of Montesquieu to our times. He was writing at a time where there was no modern conception of democracy, the role of the state was quite limited, and there were few limitations on the powers of the executive. It makes greater sense—and is a better recognition of Kenya’s sovereignty (a subject dear to both our Executive and Parliament) — that we should turn to its Constitution, approved by an overwhelming majority, to consider the constitutional basis of the relationship between Parliament and the Judiciary. After all, our democracy is not parliamentary or majoritarian democracy (where courts might traditionally have been regarded as owing “deference” to parliament) but a constitutional democracy.

People have made the Constitution supreme law, as reflecting people’s sovereignty. The Constitution not merely distributes state power among institutions, and limits it, but also prescribes the values and principles, and frequently the procedures, in accordance with which this power must be exercised. For example, people may have delegated law making power to legislatures, but have reserved for themselves the power to influence the law (through participation, and sometimes through extreme sanctions like recall of recalcitrant legislators). In extreme cases, they may even begin the amendment of the Constitution, and have a veto over amendments of its important provisions.

The people have chosen (or at least approved) the distribution of State powers in a number of ways – vertically, as between the centre and counties, and then, at both levels, horizontally. Horizontally, power is distributed in a number of different institutions, not the traditional three arms. A number of independent commissions and office-holders have been established to perform state functions—and they are endowed with people’s sovereignty as truly as the traditional arms (this is very clearly set out in Article 249(1) (a) for commissions which are to “protect the sovereignty of the people” and others in Article 1(3), listing these organs as direct delegates of sovereignty). We have travelled a long way from the systems for which Montesquieu or even the American John Madison, whom the more erudite Kenya MPs quote as authority for the separation of powers, developed their theories. It is time we turned our attention away from these venerable political philosophers to the people-driven and people-owned constitution, but mindful of their advocacy for checks and balances.

How does the Constitution define the relationship between the judiciary on one hand and the legislature and executive on the other? As far as institutions at the level of the central government are concerned, there is no reference to the separation of powers. Some judges have inferred the separation of powers from Article 1(3) which lists the three major arms of government. There may indeed be separation of institutions and tasks but these tasks are described in detail in the Constitution. Nor are these institutions free to behave as they wish—Article says clearly that they “shall perform their functions in accordance with this Constitution”.

As we proceed from this very first Article through the Constitution, we find lists of state powers as well as numerous restrictions on these powers, but also obligations of these institutions. Constantly, they are reminded of their obligations to respect and observe the constitution (for example, Article 129 says that “Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution”, and goes on to add, “Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their for their well-being and benefit”). The president is additionally given the responsibility to “respect, uphold and safeguard this Constitution” [Article 131(2) (a). In most cases sanctions are provided for breach of their duties (including impeachment of president and vice-president and dismissal through courts or special tribunals]. There is reference to separation of powers in respect of county governments. However, there is no basis for reading into it that each institution is free to do what it wishes. Their functions and responsibilities are set out clearly, some of which involve various forms of engagement with other institutions. Nor is there any general global understanding of the separation of powers in terms of complete independence of institutions, as the Executive and the Legislature have claimed. Montesquieu drew his inspiration from the English experience—but the English parliament was emerging as the supreme institution, responsible to none, and able to regulate others. Not so under the Kenya constitution.

Political role
If separation of powers is not a value of the Constitution, or at least not such a major value as to qualify for entry in Article 10, the rule of law is. And here may be the clue to the reach of the authority of the Judiciary. There is no doubt that the judiciary is the ultimate custodian of the Constitution: Article 258 (1) says: “Every person has the right to institute court proceedings, claiming that this constitution has been contravened, or is threatened with contravention. Access to courts is easy (see Arts. 22 and 258). It has the final powers of the interpretation of the Constitution (various Articles testify to it, the most prominent being Article 258, which give the courts the power to interpret the entire Constitution and to give appropriate remedy for its breach). Moreover the courts are required to take a broad rather than a narrow view of the reach of the Constitution. They must interpret the Constitution “in a manner that promotes its purposes, values and principles; advance the rule of law, and the human and fundamental rights and freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance” (Art. 259). Its jurisdiction in respect of human rights and freedoms is even broader. Article 20 (3) gives the courts the responsibility to “develop the law to the extent that it does not give effect to a right or fundamental freedom”. It is perhaps these provisions which motivated the Chief Justice to speak of the “political” role of the Judiciary. And the anxiety of Professor Harbeson that the courts might turn “political” would no doubt intensify on reading these Articles. But this is the decision made by the people in the exercise of their sovereignty.

There are a number of good reasons for conferring this wide and broad jurisdiction on the Judiciary (especially after vetting judges for competence and integrity on promulgation of the Constitution). One is the centrality of the rule of law (due the lawlessness of the Kenyatta and Moi regimes). Another is the open and transparent judicial process. Judges do not seek business or make policy on their own. They respond when disputes or complaints are brought to them. They give all parties opportunities to present their case and arguments. Judges must justify their decisions by reference to the law and where relevant, the Constitution—not by their own preferences. They must follow rules of procedure scrupulously as must the parties appearing before them. And if a party thinks that the judge has made a mistake of law or fact, that party can take the case to a higher level court and, in most cases, ultimately to the Supreme Court. Justification of decision by reason in law is their highest duty.

Unfortunately, other major institutions of state in Kenya are not well known for their openness, transparency, patience, understanding of the law and Constitution, impartiality, fairness, and consistency—or the imperatives of Kenya’s democracy. Judges may have protected tenure of office, but the Constitution provides mechanism for their removal for good cause through a clearly defined and transparent process (Article 168)—unlike the impossible process for the recall of members of the legislatures that members of Parliament have established for themselves.

Last word
There is, however, little room for complacency. Since independence (and even earlier), judges, for the most part, have not distinguished themselves, either for their learning or integrity. The vetting process required by the Constitution has had mixed record. In recent months, Chief Justice Mutunga has several times stated that corruption has crept back in the Judiciary (perhaps it was never eradicated).

Just as we must be vigilant about the behaviour of the president, ministers, parliamentarians, and civil servants, so must we be about the behaviour of the judges. Judges must constantly remind themselves of the heavy responsibilities placed on them by the people through the Constitution. Many judges do, indeed, perform their tasks with exemplary diligence, impartiality and learning, and we must acknowledge them as we must condemn those who break their compact with the people.



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