By Kevin Motaroki
When he was making the case for the ratification of the Constitution of the United States, Alexander Hamilton wrote, “The Judiciary…will always be the least dangerous branch to the political rights of the Constitution.” Hamilton believed that the courts would stand above the political fray and act as a bulwark against tyranny from all directions. This is the test of the independence, impartiality and objectivity of judicial institutions everywhere.
It’s difficult to defend the Kenyan Supreme Court on these grounds today. As far as judicial and rank niceties go, its patently naïve, unreasonable, even outright dangerous, decisions in recent times are an assertion of a new kind of partisanship we hadn’t thought possible for a court with as lofty minds as it boasts.
It is hard to think of a more significant power – mostly because many of us have given up trying to bank on the Executive and Legislature in this regard – in the machinery of our democracy that is exercised more recklessly.
With the deep distrust that Kenyans have for their elected representatives, they have come to believe democracy is irreparably broken down. Too often they have hoped that the justices will be their saviours. With so much dysfunction in government, some judges see themselves in this light as well. Where citizens ought to demand more from political actors, now they must also bear the burden of demanding the same from their courts!
The Supreme Court occupies a hallowed role. As the highest court, it is not only tasked with guiding the Republic through process, it must also stand out as the fierce custodian of rights. It’s an important mandate it can never hope to discharge if they are timid and uninspiring. Nor can they it if, acting in concert with other organs and on account of political correctness, breaches the very principles it was sworn to protect.
To borrow the celebrated words of Justice Brandeis in ‘Olmstead et al v United States’, in a government of laws, the existence of government is imperilled if its organs fail to observe the law scrupulously. The Judiciary is the potent, omnipresent teacher. For good or for ill, it teaches the people by its example. Courts themselves cannot break the law without breeding contempt of law and giving birth to anarchy.
The Constitution sets out the mandate and functions of the Supreme Court, and one would expect that an organ with such specific functions, in a nascent democracy such as ours – and in the context of the ‘rebirth’ alluded to during promulgation – would exercise fidelity to its roles, to establish and entrench its jurisdiction, as well as distinguish the position given it at the apex of the Judiciary.
But there is mandate greater than the one laid out under Article 163. As the former Judge of the Constitutional Court of South Africa Albie Sachs writes in “The Strange Alchemy of Life and Law”, while the main task of mature Supreme Courts is to expand the frontiers of the Court’s own precedence, the primary challenge for fresh courts as ours (as the Constitutional Court of South Africa then was) is to lay secure foundations for a transformative constitutional jurisprudence.
Simply, at this early stage, the success of the Supreme Court of Kenya must not be measured in the volume of matters it handles, controversy and its fidelity to judicial precedent but rather in offering unique perspectives to our unique constitution, all with a view of laying down a secure foundation upon which the rule of law will be erected and defined.
Decisions must be inspiring. A good judgement is one delivered with outstanding poise and courage and is strong enough to withstand legal and scholarly critique, and appease even those it does not favour. Professor Herbert Wechsler captured it best in his disciplined critique of the Supreme Court’s decision-making mandate. According to him, rather than seeking to right and individual wrong, what matters most is the standard to be followed in the interpretation of the constitution. A correctly decided case is one that rests on reason with respect to all the issues in the case, reasons that, in their generality and in their neutrality, transcend any immediate result that is involved. A good Supreme Court decision is one made for the future.
Controversies are many when we are talking about the Supreme Court of Kenya, but it’s difficult to come across novelties
It’s on this background that we assess the performance of the Supreme Court thus far. Yet, even before we delve into this weighty matter, we can all agree that our judges are shallow. You can see it in the judgments they write. An advocate or student who reads a judgment today must long for the days of glory past. Compared to what is currently in the market Justices Nyarangi, Bosire and Madan CJ applied themselves with poise, elegance, systematically and with detail.
A Nyarangi judgement was a story. Proceeding from a detailed background of the facts, to the issues, each paragraph built the next, every conclusion offering an introduction. The logic of justification itself was a marvel. They may have been guilty of delays but you certainly can’t question the manner and detail with which they applied the law to the facts. The oft-cited case of ‘Owners of the motor vessel “Lillian S” v Caltex Oil (Kenya) Limited’, where Nyarangi J (as he then was) laid down the law on jurisdiction is a prime example. Every practitioner must be familiar with this paragraph:
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending any other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
Today’s decisions are not only hurriedly written, they are also predictable – a tiny and disjointed summary of the facts; a similarly stunted reasoning on the issues and finally a ruling. The most disturbing thing is how judges seem to have lost every ability to think independently and personalise their decisions. A judicial edict today is simply a regurgitation of past principles – good but certainly not great for courts tasked with developing the law. Controversies are many when we are talking about the Supreme Court of Kenya, but it’s difficult to come across novelties.
On errors in principle, the Court seems to have embarked on a mission to usurp specific powers set apart for the other courts by arbitrarily giving pronouncements on different issues referred to and before it, as well as covertly declaring itself the highest court in the land. In ‘Republic v Ahmad Abolfathi Mohammed & another’  eKLR, where the Court upheld the jailing of two Iranians accused of plotting terrorist activities, while the court exercised its discretion in ruling as it did, Justice Jackton Ojwang, in an earlier ruling, surrendering the Court’s independent judgment, had ordered their extended detention after a Court of Appeal ruling that set them free. This is not a power – discretionary or vested – that the Supreme Court enjoys. Only the High Court can give such orders.
It is on account of its flagrantly ‘unreasoned’, dangerous, decisions in recent times that questions have been raised about the relevance of the Court. In a paper titled “The Limits of Prescriptive Reforms: The Struggle and Challenges of Judicial Reforms In Kenya, 2002 to 2010”, presented by Senior Counsel Ahmednasir Abdullahi during a judges’ colloquium in Mombasa in 2016, the lawyer raised the questions: Has the Supreme Court added any jurisprudential value since its establishment? Has it upheld its mandate?
While it would be unfair to claim that each and every decision passed by the Court is wrong or misguided, it is important to point out that a number of decisions made by the Court can be said to be unprecedented or contradictory.
The Court has often failed to interpret the Constitution appropriately, and decisions reached by its judges are mainly characterised by vague and ambiguous interpretations of the law. Despite significant investment on resources to establish guiding principles in constitutional interpretation, the court still lacks efficient and method-proven skills to robustly interpret the law in a manner that assures and persuades the general public.
In ‘The Speaker of the Senate & Another v Attorney General & 4 others’ eKLR Chief Justice Willy Mutunga stated, “The Supreme Court of Kenya, in the exercise of powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognisable reference-points that the lower courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the court must be seized upon as an opportunity to provide high yielding interpretive guidance on the Constitution, and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its content.”
But many of the decisions by the Court, it is argued, can hardly be said to be illuminating.
In his paper, Abdullahi further submits that the interpretative tool used by the Kenyan Supreme Court is different from the usual methods of constitutional interpretation. This according to him is called “interpretative strategies”.
Citing David Feldman, in “Factors Affecting the Choice of Techniques of Constitutional Interpretation”, the lawyer reckons, “…interpretive strategies operate at a higher normative level than methods of interpretation; an interpretive strategy is goal-directed, allowing the interpreter to decide the kinds of outcome that are generally most favoured in the constitutional structure.”
In light of the Court’s significant role in shaping so much of our national policy, it does not seem too much to ask to know how valuable the jurisprudence the court churns is, both in dispensing justice, as well as propelling legal knowledge and developing law.
The judges have distinguished themselves as players – subjective and partial – not umpires – objective and neutral
Surrogate of the State
Far from pursuing this core mandate, the Court has become just another political prize to be won by the party in power, not the neutral arbiter the Constitution envisions. While we pride ourselves that we have self-government and one of the world’s most progressive constitutions, it is difficult to take pride in a court which seems to have little sight of the important role it ought to play in our country’s governance.
Because its judges have failed to convince Kenyans they exercise impartiality, Kenyans, at different times, laud the justices for ruling the way they like – “interpreting” the Constitution “correctly” – and when they don’t, complain they’re “making the law” based on their own predilections. Supreme Court judges have distinguished themselves as players – subjective and partial – not umpires – objective and neutral. This is why it seems to matter little whether many of the assessments made of the court are based on proper principle; the standard is the outcome of particular cases.
The Court’s numbing aloofness to the juridical needs of Kenyans has weakened it while at the same time emboldening a marauding Executive and Legislature. Kenyan legislators have come to understand there is little (if any at all) need to put meaningful thought into the laws they enact because, in the end, the courts will resolve the hard questions anyway. This is the reason many scholars and reformists focus on the apex court – to chart the way for sound, well-reasoned arguments that do not leave room for aspersions.
The judges of the Court seem to be trapped in a time warp, falling over themselves to act, on the bench, the way the commissioners who voted for them – and the President who appointed them – expect. Today, the Court has become “partisan politics” by another name, much like the Court of Appeal before 2010. With little scientific method, anyone can guess how each judge is going to vote on a given matter – based on either past rulings or prevailing circumstances. If this be the case, what is the point of having a court which operates above politics only in theory?
A court in perpetual crisis
The integrity, impartiality and independence of the Supreme Court of Kenya have been questioned severally by lay citizens and scholars alike. It has been dubbed “a court in crisis”. The integrity of its key actors has regularly been the subject of discussion, leaving little room for the court to execute its core mandate.
From former Chief Registrar Gladys Shollei, dismissed over gross misconduct and misappropriation of public funds, Justice (retired) Philip Tunoi, who received a Sh200 million bribe to sway a case; former DCJ Justice Kalpana Rawal, who was linked to the Panama Papers dossier, to DCJ Philomena Mwilu, who is being probed for alleged financial impropriety, and Justices Njoki Ndung’u and Jackton Ojwang, who are being probed on allegations of misconduct, it has been a case of jumping from the frying pan into the fire, and back again.
Once upon a time, Kenyans looked to the Supreme Court to secure social justice, while jurists themselves abhorred what they called its “judicial activism”. In essence, their rulings would be based “neither on force nor will, but merely judgment”. By Hamilton’s reckoning, while the Executive “holds the sword” and Parliament controls “the purse”, the court would be “the least dangerous branch.” This is hardly the case. The Court’s determination for self-aggrandisement puts the judiciary on an insidious and destructive path of trampling the values of justice and well-being. Our – tragically – only saving grace is that because many of its decisions are so out of touch with reality, they have failed to be
binding to the lower courts. And that is just a