By Abdiqani Ismail
Although there is no precise definition for it, it’s generally agreed that judicial activism is a doctrine which proposes that judges can and should creatively interpret the text of the law in order to serve a judge’s own visions regarding the needs of contemporary society. More moderate definition can refer to the extent to which judicial review can be fairly considered an enforcement of the will of the constitution, without an infusion of the judges’ own political beliefs or preference.
This theory has been around for a long time, albeit with different conceptualisation. The debate of the early scholars revolved around the concept of judges making positive law – that of judicial legislation. Philosophers such as Jeremy Bentham saw judicial legislation as usurpation of the law-making function, while Blackstone regarded judicial legislation as the strongest feature of common law.
On the opposite end of the spectrum is the doctrine of judicial restraint. These competing approaches can be described in several perspectives. One group believes that the Supreme Court can play an affirmative role in promoting social welfare while the other advocates a policy of judicial restraint. The one is concerned with the employment of the judicial power for their own conception of the social good, the other with expanding the range of allowable judgment for legislators, even if it means upholding what they privately condemn. One group regards the court as an instrument to achieve desired social results, the second as an instrument that permits the other branches of government to achieve the results the people want for better or worse.
With these differing opinions, judicial activism is shaped by the dichotomy of unelected judges versus democratically enacted statutes; result-oriented judging versus principled decision making; strict versus creative use of precedents; democratic supremacy versus human rights; law versus politics.
In Kenya, judicial activism is anchored in Article 259 of the Constitution, which provides, “…the constitution shall be interpreted in a manner that promotes its purpose, values and principles.” What this means is that the current constitutional dispensation requires that the grounds for granting judicial review remedies be developed so as to meet the changing need of our society and achieving fair and secure justice. Nevertheless, post-2010, judicial activism has manifested itself in the Kenyan courts in quite different forms ranging from the courts.
Striking down constitutional actions of other branches of government
In recent times Kenyan courts have invalidated a number of statutes for being unconstitutional, unprocedural or going against public policy. However, the mere invalidation of law doesn’t necessarily amount to judicial activism. For instance, if the legislature passes a statute that extends the term limit of the president from the two prescribed in the constitution to three, the court would have the duty to invalidate this clearly unconstitutional law. In brief, judicial review is not synonymous with judicial activism.
Another form of activism is what is termed as judicial legislation. While strictly speaking the role of a judge is to interpret laws, judges have, for years, legislated from the bench. For instance, in the case of ‘Brown v Board of Education’, the US Supreme Court abolished the segregation of learning institutions, effectively putting in place a law that prohibits racial segregation. Kenyan courts have taken this route and shown a willingness to oversee Executive action and to reject behaviour that threatens either basic human rights or threatens rule of law.
Departure from accepted methodology
Although there is no consensus on what exactly constitutes appropriate interpretive method, the departure from the orthodox interpretive tools can be said to be activism. Proponents of originalism will focus on whether the issue in question was acceptable at the time of the ratification of the law in question while activists believe the law is a living thing – i.e., it seeks to fulfill the needs of living people whom it both governs and serves. Like cloth, law should be made to fit people. It must never be strangled by the dead hands of long discarded custom, belief or principle.
Impact of judicial activism in Kenya
In recent years, the courts have implemented this article by upholding its justifiability. Justice Mumbi Ngugi, emphasising the positive obligation of the government under Article 43, has stated that the argument that socio economic rights cannot be claimed at this point two years after the promulgation of the constitution ignores the fact that no provision of the Constitution is intended to wait till the state feels it’s ready to do its constitutional obligation.
Courts play oversight role by overturning bad laws and policies. The courts have also declared null and void a number of statutes for contravening the constitution. Some of the recently overturned laws include the sections of the Election Act, which was amended after nullification of the 2017 presidential election. Offensive clauses in the controversial Security Laws Act were also voided for violating fundamental human rights. When government issued a directive of its intention to close down the Kakuma and Dadaab refugee camps, the courts overruled that directive.
Future of activism
Currently, judicial activism faces the hurdle of an uncooperative Executive. In a system of democracy like ours, where arms of government are interdependent, the questioning of the actions of the other branches by the Judiciary may create an atmosphere where courts are seen as “competitors” rather than beholder of the law. In ‘Miguna vs Fred Matiang’i & 8 others’ [2018] eKLR, Justice George Odunga put it thus:
“The instant matter is a cause of anxiety because of the increasing trend by government ministers to behave as if they are in competition with the court as to who has more “muscle” in certain matters where their decision have been questioned in court!…Courts are guided and are behold to law and to law only. Where ministers therefore, by their action, step outside the boundaries of the law, courts have the constitutional mandate to bring them back to track and that is what the courts do.”
To conclude, despite challenges, judicial activism is well and alive in Kenya as recently demonstrated by the case of Miguna (supra) where the court directed the Cabinet Secretary for Interior, the Director of Immigration and the Inspector-General to personally bear and pay damages to Miguna. This was an important step in our jurisprudential development because it is seen as a step towards de-motivating public servants from assaulting our constitution, democracy and the rule of law. (
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