The Judiciary should actualise the vision of the Constitution. It is developing jurisprudence, as decreed by the Constitution, which makes it hated by foreign and national interests that seek to make profits at the expense of the people’s interests. The Judiciary has already started this journey. It has developed pro-people jurisprudence on devolution, and must now do the same for other areas: integrity and leadership, for the political elites; values and principles of democratic governance; human rights, to create robust jurisprudence based on the social, economic, cultural, political, and civil rights of the people; strengthening institutions; accountability and transparency, particularly in the finance and security state institutions; national debt, on the basis of both national and international law; and citizen participation in all societal matters (the institution has done a remarkable job in this direction). The political totality of such a judicial approach is to become a temple of the refuge for Kenyans who are hated by their elites, to cultivate the political love of Kenyans for the Judiciary. The effects of a success in such an approach are clearly that the Judiciary will gain its independence and freedom; obtain such reforms as the Judiciary Fund and the Judges Retirement Benefits Act; achieve the integration of formal and informal strategies for access to justice for all; and get the confidence of the people in its decisions on political disputes. The institution, in its politics, will consequently become an institutional political actor that joins other Kenyans in thinking freedom and emancipation. I am not as naive as to believe that the judicial elite will not resist such approaches, but that will be a choice of a few who have cast their political lot with the thieving Kenyan economic and political elite. The politics of the Judiciary is contained in its blueprints, the recent ones being the Judiciary Transformation Framework 2012-2016 and Sustaining Judiciary Transformation 2017-2020. The implementation of the reforms envisaged in the blueprints would create administrative and jurisprudential reforms to secure Judiciary as an institutional political actor in Kenya. It would be a great political beacon that would birth alternative political leadership, to liberate Kenya from the dominance, exploitation, and oppression of foreign interests and its agents, the Kenyan elite. It is time we discarded the unthinking comforting illusion of the arms of the state and their separation, an enslaving narrative that has been with us for the last 123 years of our colonial and post-colonial history. It is time to build institutions that are pro-people, which articulate, in their mandates, the will and interests of the people.
Judiciary can either continue deluding itself that it does not do politics, or it can deliberately do politics to robustly build people’s confidence in itself”
–Writer was Chief Justice and President of the Supreme Court of Kenya 2011-2016. These are his personal views and not those of the Office of the Former Chief Justice