Prof. John Harbeson
Kenya made history last month when the Kenya’s Supreme Court ordered a re-run of the country’s national elections. The ruling was the first of its kind in the post-Cold War democratic era, at least in sub-Saharan Africa, and very likely much further. On its face, the ruling represents a triumph of the rule of law for any number of reasons. The Court’s decision upholds the principle that the conduct of democratic elections must conform to the requirements of the Constitution and statutory law. The acceptance of the decision by the Kenyatta government as well as its welcome by Nasa confirms the independence of the Judiciary, a bedrock requirement of the rule of law, notwithstanding that the Court was divided on the issue.
More generally, the decision confirms not only the principle that the Constitution is the law of the land but, more fundamentally, the legitimacy of Kenya’s hard-won, still relatively new 2010 Constitution. That the Court could make such a bold decision and have it apparently be so widely accepted, in the context of a hotly contested election, is a tribute to the judiciary, seven years into the new constitutional era, especially to its first chief justice as well its current members. As any serious student of judiciaries as well as thoughtful judges themselves would attest, the work of improving the work of courts always is in progress and must be continually so. But notwithstanding inescapable contestation over the merits of the Supreme Court’s decision, the fact the Court could reach and gain acceptance of such a decision is a win for the rule of law.
All that said, I would note that observance of the rule of law in Kenya, as well as elsewhere, of course, still remains elusive. One question that comes to mind, for example, is whether the Supreme Court decided more than it needed to. If so, it would not be the first time in the history of judiciaries. In the United States, its great fourth chief justice, John Marshall, boldly asserted the Supreme Court’s authority, in Marbury vs. Madison in 1803, to overturn laws made by Congress when they transgress the Constitution when I believe legal scholars have generally recognized the Court could have decided the specific matter at hand without doing so.
But Marshall’s fame deservedly rests on his having made the larger claim, to the lasting benefit of the country. Where would we be if the Court had not made that claim, notwithstanding sharp controversy at the time? To my knowledge as of this writing, Kenya’s Supreme Court found serious administrative flaws in the conduct of the August election but did not confirm any evidence or motive of fraud. Might the Court then have simply ordered a polling place by polling forensic recount to see if the tallies on the 34A and 34 B forms were accurate? Or, as in the case of the United States, will the claim of the Kenya Supreme Court to be able to take the bold step it be sustained, for when and as it may be needed, be more important over the long term in securing the rule of law in country? Time will tell.
In focusing on a strengthened Kenya judiciary or, at least, the Supreme Court, too little attention has been paid to the fundamental ways in which an independent Judiciary empowered to hold the political branches to constitutional and statutory account are necessary means but – in themselves – not sufficient to the end of establishing the rule of law. Macharia Gaitho, a former Nation Media Group editor, asked the key question in a September 12 essay when he called the Supreme Court’s decision “a triumph of constitutionalism,” but then asked “how much really has changed?”
The answer, as his essay makes clear, is that real rather than elusive, secure rule of law of law requires a constitutional culture in which everyone internalises in their psyches that transparent, genuine adherence to established norms and procedures across all societal organizations as well as in political bodies is a cornerstone of democracy. Conflict is inescapable, even healthy, in identifying injustice. The rule of law will become real in Kenya and all countries when and to the extent conflicts are managed according to established practices and norms throughout society and politics, even when it is about the viability and appropriateness of those norms and practices themselves.
One of the more important books of this still young century, in my view, Constitutional Culture and Democratic Rule (John Ferejohn et al, editors, Cambridge University Press, 2001), makes the point well. As consensus building, as well as competition and conflict are inextricably joined together like three peas in a pod, so also are the rule of law, understood as constitutional culture, and democracy. ^
Writer is professor of Political Science Emeritus, and a professorial lecturer for the African Studies Program at Johns Hopkins University, School of Advanced International Studies