By Ahmednasir Abdullahi, SC
critiquing the decision of the Supreme Court of the United States in Brown vs Board of Education, the celebrated legal scholar, Herbert Wechsler, theorised the role of the Courts in the following terms:
“While the Supreme Court cannot escape the duty of deciding whether actions of the other branches of Government are consistent with the Constitution, when a case is properly before them, what mattered most was the standard to be followed in interpretation of the Constitution. Rather than seeking to right the individual wrong, a correctly decided case is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and neutrality transcend any immediate result that is involved.”
The Court is not only a custodian of rights but also an educator of process. In exercising its mandate, it ought to venture beyond the specific rights of the litigants to interrogate and settle all the issues surrounding the facts in issue- all this while accepting the guidance of settled principles of the Constitution. Simply, it is not for the Courts to exercise restraint, rather it is for the individual judges to demonstrate judicial self-restraint.
Per the distinguished South African Jurist Albie Sachs, in rendering judgment, it is enjoined to offer an argument that convinces and connects up the specific issues of the case with the wider realms of human experience. In particular, a proper court is one that taps into the powerful mystique of the law over the ages when applying itself to issues. And in doing so, it proceeds not by reason alone – the black letter law – but by legal imagination and innovation.
A court without these characteristics cannot render acclaimed decisions such as that of the Constitutional Court of South Africa in Prince vs Law Society or in State vs Samuel Manamela & Jabulani Mdlalose, where it applied and elevated the hitherto obscure concept of Reading-in with admirable effect.
Unfortunately, to a large extent, courts on these shores remain far from such imagination. How many times have they gone out of their way to conclusively settle matters around the question – not for an egoistic purpose but in pursuit of solutions and the development of law? Judges continue to display the symptoms of acute rigidity, intellectual dullness, laziness and a near permanent disposition to corruption and extra-judicial influence. Worse, they fail to marry the law into social realities.
As a case in point, is the initial decision to deny Migori Governor Okoth Obado bail. Obado’s was an obvious case of outside influence and judicial activism – not the one advocated by Sachs but the bad, bad one that where judges argue cases on behalf of litigants and allow outside and personal biases to cloud their judgment. It was surprising coming from a judge who has over the years, commanded respect amongst her peers and cultivated a reputation of intellectual resoluteness.
At the expense of the law
Sadly, Justice Lessit isn’t an isolated case. And lovers of the law must be terrified. The renewed war against corruption has seen the immensely pressured Office of the Director of Public Prosecutions scramble cases to court for determination. In the absence of proper evidence, judges, also under pressure to “help the process”, have been forced to deny bail or issue bail terms on absurd grounds. Furthermore, the line between right and wrong and that underlining the pristine principles of constitutionalism, the rule of law and separation of powers has been blurred.
In a few months we have seen more suspects denied their constitutional rights than at any other time in recent history. We have also seen a Judge of the Supreme Court cuffed and arraigned to answer the most absurd of charges. Meanwhile, because of money and the need to protect their own, where it has felt unfairly accused, the Judiciary is locked in an egoistic war with the Executive at the expense of litigants. The whole fight risks being lost at the altar of “bigness”.
Lest it be forgotten, I remain a fierce advocate of this process. Messrs.’ Noordin Haji and Eric Kinoti have returned prestige and functionality to their various offices, which had been lost under their lame-duck predecessors. In this regard the President must also be commended. My only worry would be if emotion is allowed to anchor the process. At the very least, every process, however noble, must proceed within the Constitution. Every officer of the Court, including members of the Bar have a God-given mandate to ensure that.