By Ndung’u Wainaina
The judiciary is the guardian of the Constitution. It behoves it to act proactively and decisively to defend and protect the Constitution and the core values it espouses. Today, the people of Kenya are increasingly confronted with a Presidency and Executive that are not only unconstitutionally hogging power but exercising excessive undemocratic overreach.
The Constitution declares that it is the supreme law, that all law inconsistent with it is invalid and the obligations imposed by it must be obeyed. For this reason, courts are duty-bound to declare invalid all law or conduct inconsistent with the Constitution, and to make a just and equitable order appropriate to the declaration.
Our Constitutional order places a considerable limit on the powers of Parliament and the Executive. Parliament cannot pass laws at will. All laws must comply with the Constitution and so must all conduct of the Executive. And it is the courts that decide whether Parliament, the cabinet or the president are in compliance with the Constitution. Courts now do more than just interpret the law.
Members and supporters of the ExecutiveIt often assert that policymaking is the domain of that branch of government, and that courts have no role in that process – and that court decisions that impact on policy made by the Executive violate the separation of powers. This effort at defending the cabinet overlooks the fact that as soon as executive policy translates into law or conduct, that law or conduct must be consistent with the Constitution, at which point courts have no choice but to do their duty and declare such laws invalid.
This is what our courts have been doing to the best of their ability in the controversial cases that have drawn the ire of certain sectors of society. According to our Constitution, it is not for the Executive, the Legislature, or sectors of public opinion to decide whether the Constitution is being obeyed or whether law or conduct is in conflict with the Constitution. Only the courts have this power and duty.
It would be strange indeed if the Legislature or the Executive were to be the judges of their own Constitutional compliance. The Kenyan Judiciary must aggressively and courageously deter and punitively sanction any breach of the Constitution of Kenya 2010.
The 2010 repeal of the 1969 amended Constitution was not only an abolition of deep misrule, injustices and inequalities, but also the establishment of the rule of law in the new governance paradigm. The 2010 Constitution declares that among the founding values of the nation is supremacy of the Constitution and the rule of law. But it turns out that the battle to establish the rule of law is not over. The danger remains that the people will not own power because the political system meant to empower them has been sapped by corruption and arbitrariness. The result has been that today courts find themselves increasingly called upon to preserve the rule of law without the support of the government as a whole.
The Constitution is emphatic about the role of courts. It tells us that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. To underline this point, the Constitution instructs that no person or organ of state may interfere with the functioning of the courts. On the contrary, organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
Currently, the race to replace David Maraga as Chief Justice is on. It only stands to reason that the next Chief Justice must be irreproachable, and a person of firm resolve and integrity. They must stand firm to reaffirm and reassert the authority of the judiciary as derived from the people. A Chief Justice must not knee-tow or hobnob but publicly set clear rules of engagement with the other arms of government in a manner that supports manifest justice.
CJ David Maraga has gone into retirement when the institution of the judiciary is in dire straits following a sustained onslaught from the other arms of government. Public confidence has been consistently slipping. It behoves the next Chief Justice to capture the imagination and aspirations of Kenyans on a judiciary that is the guardian of the Constitution and the rule of law.
The Chief Justice must convince the country of his or her passion, will and commitment to transform a struggling judicial institution. There has to be more reinvigorated cleaning up of the judiciary and significant deepening of judicial reforms.
Kenya’s judiciary is still populated with conservative and pro-establishment gatekeepers who have been straight jacketing rather than interpreting the Constitution as it is required to. This is unhealthy for a nascent democracy and a struggling, fragile country weighed down by high-level official corruption and state sanctioned impunity. The judiciary must deliberately make it very costly for the Executive and Legislature to disregard courts orders. It must no longer be business as usual.
Kenya deserves a forward-looking person who fully appreciates the historical context of the judiciary — a judicial head who returns the Judiciary to Executive compliance is dangerous for the country’s well being. The Judicial Service Commission (JSC), an institution with a Constitutional mandate to recruit the chief justice and other judges, faces a definitive acid test.
Judicial authority is derived from the people of Kenya. The JSC is an agency established by the people of Kenya to offer service to Judiciary; it is subject to the rule of law and to the Constitutional principles of accountability and transparency. As it is, some serious questions have already been raised on the process leading to the appointment of some commissioners, with most seen as politically compromised and weak. This scenario has devastating effects on the rule of law and the strengthening of constitutionalism. The recruitments of Supreme Court justices will be subject to a high degree of public scrutiny.
Transparency in the exercise of public functions by JSC goes hand in hand with the Constitutional right of access to information. Consequently, JSC must publish and publicize information on how each interviewer (Commissioner) will rank each candidate as per the set marking scheme. As well, every candidate for Chief Justice position must be served with a copy of the ‘marking scheme’ and ranking. Finally, the JSC needs to publish and publicize the summary ‘marking scheme’ in local media in order to ensure credibility of the recruitment process and integrity of the nominee.
An objective and transparent process for the appointment of judges seeks to ensure that the best-qualified candidates are selected and that such candidates are not indebted to any entity or person in connection to their appointment. An independent appointment process that has clear definition and identification of an objective criterion to select judges is key. The selection process must ensure the implementation of a genuinely transparent public evaluation process is a central element of judicial independence.
The person recruited as the Chief Justice should be unapologetically fearless, independent and impartial. The importance of the position of Chief Justice cannot be gainsaid. Consequently, the person selected should not be a spineless political apologist, but have full understanding of the needs of our nascent constitution, and show outstanding unwavering commitment to the values and principles of the Constitution of Kenya and its judicial philosophy. The person should have an unequivocal record of defending the independence and institutional integrity of the Judiciary. He/she would command respect and garner support across the members of the judicial family and capture the aspirations of the people of Kenya.
The appointment of the Chief Justice should not be taken lightly. It should be devoid of partisan politics. There should be no perception of political affiliation. The political embodiment in the judicial recruitment system, particularly at the Chief Justice and Supreme Court, contributes significantly to the emergence and persistence of corrupt practices.
The person would be someone who has demonstrated through their practice in law and through service, that they have the veracity in dealing with complex judicial matters, unwavering defending of the Constitution, and strongly support the deepening and consolidating of the judicial reforms.
As the chief custodian of the Constitution, the Chief Justice must be a person who has shown unambiguity or ambivalence in giving life to the letter and spirit of the Constitution.
The person appointed Chief justice should bear credentials of reaffirming an independent judiciary that can be trusted by the people to justly and expeditiously arbitrate and enforce the rule of law without ‘tapping on the shoulder’ of ‘higher powers’. The person should show the ability to guide the judiciary in developing progressive jurisprudence, accentuate judicial reforms, and ensure access to justice for all across the country.
The writer is the Executive Director, Africa Council on Human Security, @NdunguWainaina