Dr Willy mutunga
Five years ago, the promulgation of the Constitution of Kenya 2010 fundamentally restructured the Kenyan state and ushered in a new devolved system of government. Devolution was born of the real challenges that Kenyans had grappled with since independence, including the need for accountable exercise of power, effective self-governance, equitable social and economic development, entrenchment of public participation, and the implementation of the subsidiary principle in governance. Simultaneously, devolution was entrenched in the Constitution as a means of recognising and accommodating Kenya’s rich diversity and ensuring robust protection for minorities and marginalised communities, including women.
But we know that Constitutional transitions are complex social phenomena, and Judiciaries play a significant role in making them fail or succeed. Judicial conduct can undermine or facilitate the transition from old to new order in ways far more consequential than direct political action. The complexities and fragility that attend transitions are borne out of the fact that a new constitutional order creates new institutions; disrupts and reorganises interest formations; re-orders power relations; engenders new elite and popular expectations; and necessitates difficult elite and popular mental shifts, some of them contradictory in nature. It is terra incognito for many individuals and institutions, which requires considerable sobriety and calmness to navigate. Kenya’s judiciary has been alive to this reality and clearly understands its constitutional cause and historical mission in this regard. I am happy to report that since 2010, the Judiciary had provided leadership and stability in overseeing Kenya’s constitutional transition.
Given its location in Kenya’s constitution architecture, the Judiciary is at the core of the transition to devolved governance. Specifically, the courts have a mandate to ensure that devolution is implemented in a way that translates into the stated constitutional objectives – breathing life into our ambitious and progressive Constitution.
The Constitution of Kenya has assigned functions between two levels: the National and County Governments. The Constitution also introduced a bicameral legislature with the National Assembly and the Senate constituting Parliament. County Governments were inaugurated in March 2013, ushering a new era of devolution from the previous centralist regime. Since this paradigm shift occurred, and noting that financial, administrative and political power devolved all at the same time, the transition has experienced controversy and conflict on certain aspects where there is legislative lacunae, hence the need for judicial interpretation. In such cases, the courts have been the final arbiters on these issues.
The objectives and structures of devolution are born of real challenges that Kenyans wish to address. Underdevelopment, ethnic conflict, and lack of accountability in the use of state power and resources informed the struggle for constitutional change. Kenya’s transformation and transition will depend on whether the stated objectives of devolution and other constitutional values will underpin implementation of the Constitution. This means that there is emerging jurisprudence on devolution and related matters, and that the courts are setting standards and principles on many aspects on devolution. These standards and principles will be relied upon now and in future.
As the rolling-out of devolution continues, Kenyan courts have had to adjudicate on conflicts/disputes relating to the devolved system of Government, including on the role of Senate vis-à-vis the National Assembly in devolution-related legislative processes, the constitutionality of legislation passed by county assemblies, devolution of key functions and resource allocation to counties. It is expected that more such cases are likely to end up in court as various parties seek the courts’ intervention on grey areas related to interpretation and implementation of devolution.
My message to county governments, as well as other institutions of government, is that whenever issues arise, the Judiciary makes decisions and decide matters on the basis of the Constitution, the law and the evidence as presented before the courts. We interpret the Constitution as we understand it, and whereas this will not always please everybody, we must understand that that is how the rule of law operates, and there are mechanisms that exist to check any excesses or errors. An independent and competent judiciary serves everybody well; one that panders to individual whims or to popular and political pressure hurts our constitutional democracy and even public interest in the long run. But even as we have maintained our independence in making judicial determinations, we have been open to dialogue; availing a non-adversarial forum where concerns on aspects on the administration of justice can be responsibly discussed.
Because of the superficial and ephemeral debating character in the country, and “flash in the pan” approach to Kenya’s public discourse, not much systematic attention has been paid to the totality of jurisprudence and case law that is emerging from our courts – from the Bill of Rights, to Land, to Public Finance, to Devolution. It is about time we began to pay thoughtful and penetrating attention, and the Case Law Digest on Devolution we have launched is a good beginning.
The launch of these two publications is testimony of Kenya making milestones in Devolution at the County Level and in the Judiciary. The first is a book project on Animating Devolution: the Role of the Judiciary, a joint project by JTI/IDLO and Katiba Institute. The second is the Council of Governors’ Case Digest on Devolution, the first comprehensive law report on devolution jurisprudence.
In conclusion, judicial power, unlike executive and legislative powers, is not devolved or shared between the national and county levels under the Constitution of Kenya 2010. Yet, the few years of implementing devolution have proved that the Judiciary is a necessary, if not critical, institution to the effective implementation of the devolved system of government. While it is not part of county government institutions, the role that the Judiciary plays in the Constitution makes it a critical part of the implementation of the devolved system of government.
The Judiciary supports devolution, and it is for this reason that I have waived the court filing fees for County Governments. National Government rightly enjoys this benefit and there is no reason County Governments should continue bearing this financial burden.