The first verse of Kenya’s National Anthem asserts, “Justice be our shield and defender”. Justice, together with liberty and equality, summarise the spirit of political democratic systems. Justice is also a basic human value.
The Supreme Court of Kenya, established under Article 163 of the Constitution, is the highest tribunal in the land for all cases and controversies arising under the Constitution or Kenyan laws. As the final arbiter of the law, the Court is charged with ensuring the Kenyan people access the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
Professor Yash Pal Ghai once argued that, “Perhaps realising its own ambitious project, and hence its vulnerability and fragility, the Kenyan Constitution sets, through the Judiciary, its barricades against destruction of its values and weakening of its institutions by forces external to itself. Such is the responsibility of Kenya’s Judiciary.”
The unique position of the Supreme Court stems, in large part, from the deep commitment of the Kenyan people to the rule of law and to a constitutional government. The Judiciary has demonstrated an unprecedented determination to preserve and protect the Constitution, thereby providing the Kenyan “experiment in democracy” with a limping Constitution that recently came to birth.
In retrospect, it is evident that the Supreme Court’s interpretation of the Constitution and application were made necessary by the very nature of the Constitution. The drafters had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. Former Chief Justice Marshall of the United States noted in “McCulloch v Maryland (1819)”, that a constitution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind… Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”
At the helm of the Supreme Court is a liberal scholar, Chief Justice Willy Mutunga, a man who stands tall among many, notably from his work in the pro-democracy movements, namely the “Pro-democracy Twelfth of December Movement in Kenya”, which denounced undemocratic governance, to fighting the need to integrate liberation paradigms in the age of neo-liberalism.
However, under his watch there has recently been some discontent in the administration of justice whose competence is purely epitomised by the breach of Articles 27, 28, 47, 48 and 50(1) of the Constitution. The resultant effects of these breaches are evidenced by the lack of a competent reason to comprehend and explain the underlying and systemic causes of backlog of cases in Kenyan Courts. This, if not properly addressed, will be a valid reason to be used by those who rant against the administration in the Judiciary.
A rising paucity of administrative acumen, which the Judiciary to be at war with itself, is a fact that there is no cogent design or policy gauged towards securing the judges retirement benefits or pension scheme. The lack of a retirement plan is a major factor that is brewing a rising crisis in the Judiciary. It is high time that the Judiciary, in conjecture with the Judicial Service Commission, created an applicable policy for the retirement of judicial officers.
Sharad Rao, chair of the Kenya Judges and Magistrates Vetting Board, on the rising concern about delayed cases, has said that the damage done to public confidence in the Judiciary was indubitable, extensive and irremediable. Indeed, he asserts, it is hard to think of a more egregious example of judgments being delayed and justice denied. “The delays are unacceptable, carried like a hump on a camel’s back from one posting to the next. Literally hundreds of litigants from every walk of life feel robbed of their right to have their cases finally determined.”
Change needs to happen on the front of delayed justice.
At the Judges and Magistrates Colloquium in Mombasa, the Chief Justice was quoted as saying that corruption had crept back into the Judiciary. This in my view is impunity on the face of justice. Senior Counsel Ahmednasir Abdullahi, SC described the rising corruption trend as a grandstanding and bewildering stand. He noted: “Some judges of this court probably are in a hurry to retire and want to make as much money as possible in the shortest time possible. Others simply don’t care and can deliver the most ridiculous and senseless judgments depending on who pays them.” The Judiciary must to step up the fight on corruption related issues lest they want to be viewed as being rogue like Parliament.
Former Chief Justice Chunilal Madan, in High Court Criminal Application No 271 of 1985 “Stanley Githunguri vs The Republic”, once said “…Stanley Munga Githunguri. You have been beseeching the court for an order of prohibition. Take the order. This court gives it to you. When you leave here, raise your eyes up into the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya.” Indeed a ray of light in a dark tunnel.
Recently, the CJ gave directions namely, “Practice and Procedure Rules”, for the enforcement of the Bill of Rights under Article 22(3) as read with Article 23 and Article 165 (3) (b) of the Constitution. Jurisprudentially, the “Mutunga Rules” mark the beginning of a new era in the determination of constitutional questions by courts in Kenya. From as far back as the “Gibson Kamau Kuria vs Attorney-General” case of 1988, the courts relied on the absence of such rules to argue that they lacked jurisdiction to enforce rights and fundamental freedoms that were alleged to have been denied, violated, infringed or were threatened.
Recently, the Speaker of the National Assembly revived an intergovernmental forum dubbed “The Big Six” to act as a platform to address accounting and policy queries with the Judiciary. The Big Six will be chaired by either chairperson of the PIC or PAC with the CJ attending in his capacity as head of the Judiciary, while the Speaker will appear in his capacity as the Chairman of the Parliamentary Service Commission. In a curvy rejoinder, the speaker ruled that in future, the Chief Justice will be required to honour House Committee Invitations and Summons.
This broad move is a brazen attempt by the Legislature to chip away from the principle of separation of powers. They ought to understand that the Kenyan system of governance is undoubtedly based on the constitutional principle of separation of powers. In insulating the judicial functions from the legislative and executive functions, separation of powers in turn rests on the constitutional principles of judicial independence and the rule of law.
The separation and independence of judicial powers would lose its point, as an essential safeguard against arbitrary power, if the current acts by the Legislature to interfere with its independence are taken into consideration. The integrity of appropriate standards of judicial procedure must therefore be regarded as constitutionally fundamental, and substantially immune to legislative abrogation or abridgement. It is only the CJ who can, in my view, ensure that any move geared towards limiting the independence of the Judiciary does not see the light of day.
In increasing transparency in the administration of justice in all sector agencies, the Chief Justice, in cooperation with Judicial Service Commission Inspectorate Unit, interdicted a total of 65 administrative staff, among them 17 accountants, over graft claims. This, he said, is a proper move in providing leadership for taking disciplinary action against judges, magistrates and senior and junior administrative staff, and strengthening the anti-corruption court. In a further move, the Chief Justice also stated that thirteen magistrates risk losing their jobs over corruption allegations, failure to deliver judgments and gross misconduct. If the Judiciary is the modern Robin Hood, then Chief Justice Willy Mutunga is the guy rolling the wheels.
In a constitutional republic, the proper role of a judge is a modest one. Ours is guided by a government of laws; not of men but current trends of interfering with justice depict a view that our government is made of men and not laws. The basic truth requires that disputes be adjudicated based on what the law actually says and according to its original public meaning rather than the whims and personal wishes of an individual or a conglomerate of elders from whatever region of the country. Judges must apply the law, interpret and measure it against the Constitution when necessary, to decide cases. That is their limited function. In determining whether or not a contested law is consistent with the Constitution, judges must act within their proper judicial power when they give effect to the original public meaning of the words of the law and the Constitution. Judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.
In sync with social change
In regard to the rising need to create new jurisprudence in the Kenyan courts, judges, though upholding and interpreting the law as it is, must engage themselves in judicial activism, deciding cases according to policy preferences rather than by applying the law impartially according to its original public meaning. They need to be enamoured of ideas like “living constitutionalism,” – the theory that the Constitution evolves and changes not through the amendment process set out in the Constitution itself, but as a result of the decisions of Judges reflecting social change with their decisions.
Thus, in applying laws made by the legislature, Judges interpret them, typically transforming the rules from generalities to specifics and sometimes filling gaps to cover situations never addressed by lawmakers when the legislation was first drafted. As courts decide disputes in individual cases, they create an important by-product beyond peaceful settlements, that is, they develop rules for deciding future cases. The judicial decisions embodying these interpretations then become a controlling factor for future cases, sometimes to the extent that they virtually supplant the legislative enactments themselves.
As a general rule, the rules of law made by courts when interpreting other laws and court decisions when deciding a particular case are just as powerful and binding as written laws. Thus, law is made not only by the legislature but also by the Judiciary at large. Therefore, the Office of the Chief Justice and the Chief Justice himself ought to encourage Judges of the need for stare decisis.
The nation lives, grows, and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. The organ of the national life which in preserving the sanity in the arms of government by being able from time to time to transfuse into it the fresh blood of the living present, is the judiciary, It is as one of the organs of Government which enables the Constitution to grow and to be adapted to the changeful necessities and circumstances of generation after generation. Amendments achieve direct and sweeping changes, but the Judiciary moves by gradual, often indirect, cautious, well considered steps that enable the past to join the future, without undue collision and strife in the present.
My word to the Chief Justice, and directed to those who whisper and grumble about the need to limit the Judiciary, is this: either put your cards on the table so that we can debate the issue or stop your self-serving campaign to discredit the Judiciary. In the absence of concrete understanding of the principle of separation of powers, one will have to assume that those who talk about these changes are not interested in the well-being of Kenyans, but rather in retaining power and access to tenders by scapegoating the Constitution through watering down the Judiciary.