Not assertive enough

Executive continues to hold the sword and the Legislature the bread, but the CJ could be bolder and play less of ‘good cop’

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As the curtains come down on his reign, there is no arguing that Chief Justice Willy Mutunga has played a pivotal role in transforming Kenya’s Judiciary. Under his tenure, a raft of changes has been instituted to enhance efficiency in service delivery. As to whether these changes amount to the proverbial “washing the outside of the cup while the inside remains laced with debris” remains to be seen.

Under the blueprint of the Kenya Judiciary Transformation Framework, 2012-2016, the CJ has commendably succeeded in bringing justice closer to the people and bringing the “human” element back to the daily operations of the Judiciary. He has achieved this by doing away with the intimidating presence of colonial-style judges and creating the “oxygen” rules that have redefined cordial engagement between judicial officers and members of the public. The Chief Justice has also moved to address the question of backlog in our courts even if his move to dismiss pending cases has raised questions within some quarters, with many decrying the lack of sufficient notice and public participation in making the terminations.

The Judicial Service Commission, under the leadership of the CJ, has also gallantly led by example in realising gender parity as envisaged under the Constitution. Under his watch, over 100 judges – both men and women – have been hired. With these appointments, the gender ration between men and women has increased to within levels of 45-55 per cent. The employment of disabled persons has also risen even if only with a paltry 1.1 pc. The CJ has also made attempts at hastening the determination of traffic offences by introducing mobile courts along major highways. This particular venture however turned out to have been a significant miscalculation on his part as for, far from serving their intended purpose, they turned out to be dens of corruption.

Not one to give up, however, the CJ in June 2015 introduced new guidelines aimed at guiding courts across the country in handling traffic cases. As well, in what has wrongly been described by many as being tantamount to judicial activism, the Chief Justice has over and again sought to stand up against the Executive and the Legislature for what he considers to be unwarranted intrusion from those quarters.

While he is celebrated for these achievements, some have sought to castigate him for among other issues, his failure to reign in on runaway corruption in the Judiciary. The biggest proponents of this argument have so far been the Nicholas Gumbo-led Parliamentary Accounts Committee. Curiously, while pointing out his failures, the committee failed to find him directly responsible for any of the acts of corruption the Judiciary has been accused of. Meanwhile, the CJ’s popularity continues to soar, if opinion polls are anything to go by.

A group of practitioners from the coast has also come out to condemn his action of setting the Court of Appeal headquarters in Malindi instead of Mombasa where it “ideally ought to have been” when “legal traffic” is considered. This group has further pointed out isolated administrative failures such as the replacement of Justice Richard Mwongo which never came to fruition; the clamour for the immediate reversal of the temporary deployment of Justice Francis Tuiyot to the Busia High Court, which the CJ never took heed of, together with a host of transfers they considered unwarranted.

His failure to adequately inform and thus prepare the Government for the looming judicial crisis in which close to 60 judges are set for retirement in an election year has also been pointed put as a significant oversight on his part. It is, however, the argument that the CJ has directed so much of his attention to superficial details absent, especially when one considers the real ails of the Judiciary. Where does the CJ leave the Judiciary? What has been the substance of judicial decisions under his reign? Where has the Judiciary failed, and what is the way forward?

The position of the Judiciary
The general position of the Judiciary in a democracy was perhaps best summed up by Alexander Hamilton when he stated:

“…Whoever considers the different departments of power must perceive that…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution… the executive not only dispenses the honours but holds the sword of the community.  The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated.  The judiciary, on the contrary, has no influence over the sword or the purse; no direction either of the strength or the wealth of the society and can take no active resolution whatever.  It may truly be said to have neither Force nor Will but mere judgment…”

It is this malady, perhaps, that the Constitution of Kenya, 2010 sought to heal when it set in place an intricate system of checks and balances among the arms of government walled within and elaborate separation of powers in the workings of the aforementioned arms. The Constitution as it is, is supposed to reign supreme, with all the other arms of government being subject to it. The law further grants these arms the authority to apply the Constitution whilst reserving the duty of interpretation to the Judiciary. Any scepticism that Wanjiku had concerning the Judiciary was to be erased by setting in place a vetting mechanism that would kill corruption as well as restore confidence in the judicial processes. Five years into the new constitutional dispensation and the question begs, have the medicines prescribed the Constitution worked, or do Hamilton’s words remain true?

It’s not in contest that there has been a measure of improvement. To the extent, however, that essential pillars necessary for a successful Judiciary (being judicial independence, transparency and goodwill) remain either unerected or worryingly shaky, Hamilton’s words remain true. As he rightly observes, the existence of the Judiciary is largely dependent on the Legislature. Its success on the other hand depends in large part on the goodwill of the Executive. Where the Judiciary has been bold enough to reject the Executive’s bidding, the Executive often vetoes judicial directives on the account of either public security or diplomatic interests. Persistent judiciaries do exist, but even these are stifled by a flat refusal to implement judicial orders.

There can be no better evidence of the application of Hamilton’s claims to our own system than a dissection of the Court of Appeal’s ruling in “Teachers Service Commission (TSC) v Kenya Union of Teachers(KNUT) and 3 others eKLR Civil Appeal Case no 196 of 2015”. In affirming the ruling in “Richard Nchari Leiyagu v Independent Electoral and Boundaries Commission and 2 others C.A No. 18 of 2013”, the Court of Appeal held that the right to hearing was well protected within our laws and therefore not one to be easily taken away, even on appeal. The Court, in this matter, prevented itself from finding TSC in contempt of court for failing to implement a 50–60 pc pay raise for the teachers pending hearing and determination of any appeal. It was the position of the Court in Richard Nchari (supra) that even in grave instances warranting dismissal of suits, such dismissal ought to be done in a manner that would protect the integrity of the courts and not occasion an injustice.

The Court of Appeal, relying on this ruling, reasoned that TSC could not be held in contempt since the Labour Relations and Employment Court’s directive on the 50–60 pc pay increase pending hearing and determination of appeal stood void immediately the TSC demonstrated that it had no capacity to effect the ruling. The Court also observed that implementation of the Labour Court’s ruling depended on complex proceedings under the Government Proceedings Act. These proceeding could not possibly have been carried out between the time of issuance of the decree and the time of filing of the appeal.

When the nitty gritties of execution under the Government Proceedings Act are considered, that the Government could not have possibly implemented the Labour Court’s decree by the time of filing the appeal is not under contention. However, for the court to absolve the TSC of contempt immediately the TSC demonstrated that it had no capacity to effect the ruling in forums other than the court of law raises eyebrows. Indeed, “Randu Nzai Ruwa and 2 others v Internal Security Minister and another” Mombasa HC Misc. No.  468 of 2010 [2012] sets the criteria for validating Government’s inaction. In Randu Nzai, it was held that:

“Although the State is not required to give a detailed account of its action, it must do more than merely assert that the action has met the threshold set by the Constitution. It must place some evidence before court that will enable the court make a judicial assessment. If that evidence is classified or sensitive then it can be received behind closed doors.”

Demonstration is therefore only demonstration, per Randu Nzai (supra). Accordingly, such a demonstration must be more than a mere allegation. Secondly, such a demonstration ought to be made in court. TSC and, indeed, Government ought to have foreseen their incapacity to pay and raised that before the Labour Court. This is the only way the criteria set in Randu Nzai would have been met. A denial of their prayers at the Labour Court would have meant a failure to properly demonstrate any incapability on their part. This would automatically mean that they (TSC) were capable of payment and therefore ought to pay or otherwise be held liable for contempt.

Even after acknowledging that the respondents had failed to file a proper application for contempt, the Court of Appeal went ahead to argue the question of contempt. In the process, the court not only tasked itself with a matter that was not properly before it but also went ahead to argue out the applicants’ case on the applicants behalf!
In “Christine Wangari Chege v. Elizabeth Wanjiru Evans & 11 others, Civil Application No. 233 of 2007”, the court relied on the Civil Procedure Rules of England, 1999 to define contempt of court as:

“A committal for breach of a judgment, order or undertaking to do or to abstain from doing an act; a committal for interference with the due administration of justice (applicable only in criminal proceedings); committal for contempt in the face of the court and a committal for making false statements of truth or disclosure statements.”

In regard to the Civil Procedure Rules of England, 1999, a person shall only be liable for contempt of court if preliminary proceedings before a magistrate show that there is enough evidence to warrant a case in which any of the actions or inactions in Wangari Chege (supra) are alleged to have been committed. While claiming the guidance of the Civil Procedure Rules of England, 1999, the Court of Appeal concentrated on the TSC’s “demonstration” of their inability to pay while overlooking the Executive’s arrogant denials of any intentions to pay the 50–60 pc increase!

Judicial activism
Commendably, however, the courts under Dr Mutunga have on many an occasion stood up to the Executive. Depending on the gravity of the matter at stake, the Government has either comes out to vehemently condemn the Judiciary or altogether ignore judicial directives. I shall proceed to cite a few examples.

Sensing an onslaught against it, the Judiciary has under Dr Mutunga has sought to assert its authority through sometimes contentious decisions which do nothing other than justify its cause. The emergence of this trend has led to the phrase judicial activism as a description of the courts’ actions. What judicial activism is, however, is a matter that should be subjected to very careful consideration.

Black’s Law Dictionary has defined judicial activism as a philosophy of decision-making whereby judges allow their personal views about public policy, among others, to guide their decisions. This is in contrast to the principle of judicial restraint in which the judges subscribe to the strict adherence to the principle of stare decisis (the reliance on precedents).

For the purpose of highlighting classic judicial activism, I shall revisit the jurisprudence of the Court in the Presidential Election Petition of 2013. Curiously, the Supreme Court purported to distinguish causes of action into constitutional cum legal issues and purely political issues. Even more curiously, they decided that they did not have power over political matters as they were “non-justicable.”

Under paragraph 203 of the ruling, the court correctly identified fidelity to the Constitution as a primary guiding factor in judicial interpretation. Absurdly, however, the Court opined that such fidelity shall be considered against any other law “…as objectively reflects the intent and purpose of the Constitution.” The Court failed to give insight as to what this “other law” consisted of. This would lay a proper platform for the court to be informed by questionable arguments from questionable precedents – all in a bid to justify its seemingly already decided position that the elections were free and fair. The result of the courts reliance on this questionable jurisprudence was the conclusion that the standard of proof in Presidential Petitions was to be technically higher than in ought to be so as to stop the Judiciary from stepping into matters where the populace had seemingly made their intentions clear.

In doing this, the court was guided by the celebrated South African case of “Minister of Health v. Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC)” where the South African court found that it had powers to evaluate the reasonableness of the measures taken by government where they were challenged for being unconstitutional. The jurisprudence of the South African case was that separation of powers would not stop the court from making orders having policy implications. Per the South African court, such orders were not to be construed as breaching the eternal dictate of separation of powers.

The court however failed to distinguish between the two cases. The tiny yet importantly important difference between the two rulings is that, Minister of Health (supra) intended infringement that would have an effect on policy implications, not an election determination, and worse a presidential petition. To rely on Minister of Health (supra) and to reject evidence on technical grounds under the guise of judicial activism amounted to a grave error in law!

Guardian of the law
The judicial realm under Dr Mutunga has not been short of landmark rulings that have elevated the status of the Judiciary as a guardian of the law. Among these are the Supreme Court’s advisory opinions on revenue allocation, the two-thirds gender rule and the status of the Salaries and Remuneration Commission (all of which the courts have held to be binding). The High Court’s decision issuing a warrant for the arrest of President El Bashir and allowing the lesbian, gay, bisexual, and transgender group to form associations (regardless of public mood) are laudable.

As a general observation, however, though punctuated by good rulings, the jurisprudence of the Courts under Dr Mutunga has been shaky at best. The relationship between the different courts has also left a lot to be desired. While there have been considerable improvements in the Judiciary, the failure of the vetting process to root out corruption followed by the power struggles between the Judiciary and the other arms of government remain a significant stumbling block to the quest of realising a polished judiciary.

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