Limits of prescriptive change: Challenges to judicial reforms

AHMEDNASIR ABDULLAHI

“Perhaps realising its own ambitious project and hence its vulnerability and fragility, the Kenyan Constitution sets, through the Judiciary, its barricades against the destruction of its values and weakening of its institutions by forces external to itself.  Such is the responsibility of Kenya’s Judiciary.

Few countries in the world have shown the will, tenacity and single-mindedness, or even invested much time and resources to reform their Judiciary in the last decade as Kenya has. From the Executive-inspired Radical Surgery of 2003 to 2004 to the vetting of judges under the 2010 Constitution, Kenya has tried a potent mixture of political tools and constitutional principles to reform and recast its Judiciary.

Principally, because of the historic immoderations and mischief of the Judiciary in Kenya and its near-total collapse, coupled with the lack of confidence by the citizenry, this crucial institution, like a terminally ill patient, has been subjected to innovative concoctive prescriptions with a view to reforming it.

During the Radical Surgery, almost half of the judges in the country were given marching orders. In the vetting process, the Constitution mandated all judicial officers to be selected afresh to determine their suitability.

Five years after the vetting of judges, it is apt to take a snapshot of the state of the patient’s health with a view to judging whether the diagnostic prescriptions that were administered have had the desired effect on its status, or whether the patient has shown signs of immune resilience and is thus beyond therapeutic redemption.

The early prognosis is disheartening. Preliminary results show that the radical reforms carried out have neither cured the malignant cancers of corruption, inefficiency and impunity nor slowed down its spread. Thus, the distinct possibility exists that a much stronger, more potent prescription may be required, and very soon too, to settle the question of reforming the Judiciary once and for all.

‘Nuclear’ option

A process to appraise the Judiciary at this point in time will give us precious insight into the reach and limits of imposed or prescriptive, legislative and political interventions as remedies to judicial malaise as a case study. Ultimately, we get a to understand whether normative values in a justice system can be imposed through prescriptive reform or whether such values evolve incrementally as part of a country’s  political and societal evolution.

The process of appraising the Kenya’s Judiciary requires the classification of the Judiciary into three levels. The first is the Supreme Court, created and constituted according to the 2010 Constitution. The appraisal exercise here entails a simple process of evaluating the performance of the court. This is an objective exercise that is informed by an analysis of the court’s jurisprudence and how it performed within the constitutional setup of the Judiciary. This, however, must be done both in light of the present issues that define the judiciary and also in comparison with its predecessor as the apex court in Kenya.

Second is the Court of Appeal. Apart from few constitutional issues that are the preserve of the Supreme Court, the Court of Appeal is, indeed, the final court of the land. It was massively expanded in terms of personnel and decentralised geographically. About 70 per cent of the judges in the court are newly appointed. The appointment of many judges and injection of new blood had profound impact on the court in more than one way.

The High Court and courts of similar jurisdiction still provide the bedrock of the courts of record. It is the largest court both in terms of personnel, geographical reach and even jurisdictional diversity. This court was massively expanded under the 2010 Constitution. Its performance needs both praise and critique.

Supreme Court: Promise, peril and struggle for jurisprudential coherence
What features define the Supreme Court of Kenya? What does it stand for? In this appraisal, we highlight three pertinent and interrelated issues that face the court. First, is what I call a crisis of legitimacy or the “Nkurunziza factor”. A member of the court has refused to retire at the mandatory retirement age of 70 years, gone to court and obtained an order from the Court of Appeal barring his retirement, and continues to sit in the highest court of the land. A second member is set to retire in December. What is the impact of the refusal by members of the Supreme Court to retire? So saying, is the Supreme Court a legitimate court under the Constitution?

The second issue relates to the Court’s efforts and approach to constitutional interpretation. Third is what I call the chaotic expansion of the court’s jurisdiction and the illegitimate power grab by the Court. These three issues, singularly and collectively, define the mosaic features of the court and have a profound impact on both the Supreme Court and the judiciary.

The Nkurunziza Factor

Article 163(1) of the constitution establishes the Supreme Court. The Court consists of a chief justice, deputy chief justice and five other judges. Article 167(1) provides that “a judge shall retire from office on attaining the age of seventy years”.

It is not in dispute that Justice Phillip Tunoi has attained the retirement age of 70 years. So let us explore the juridical grandstanding and rationalisation of his bewildering stand and refusal to retire. His case at the Court of Appeal is premised on the retirement of age of judges. Under that old constitution, retirement age of judges was 74 years. The Sixth Schedule of the Constitution 2010 provides for the preservation and transition to the Constitution. However, if a judge was employed under the provisions of the 2010 Constitution in a new court then the retirement age is 70. Since Tunoi was employed as a judge of the Supreme Court, obviously he can’t retain the retirement age of 74 of his previous tenure as a judge of the Court of Appeal. The argument that informs his claim is obviously a no-brainer!

Justice Tunoi filed his suit in the High court. The Chief justice appointed a bench of five judges to hear the case on a priority basis. The Court then consolidated the suit with a similar case. Aggrieved by that consolidation, Justice Tunoi moved to the Court of Appeal to stay the proceedings pending an appeal that seeks to quash the consolidation.

Just from a procedural viewpoint and a mere retracing of the various footprints of the case shows glaring fundamental abuse of the court process. First, it is quite obvious that Justice Tunoi is clearly determined not to ventilate his case on the merits in the High court. He probably wants to move from one court to another till he reaches 74 years. In the meantime, Justice Tunoi comfortably sits pretty as a Justice of the Supreme Court courtesy of the order he was granted staying the decision of the Judicial Service Commission to retire him.
Second, the stay application to the Court of Appeal was obviously without jurisdiction. Justice Tunoi has no right of appeal to the Court of Appeal from a suit premised on the Constitution. Third, the grievance and complaint look spurious and trivial from this vantage point. It is only in Kenya courts that such an issue can preoccupy the courts.

East Africans and the rest of the world were rightly outraged and scandalised when the President of Burundi extended his term despite the two-term limit in the Burundi constitution. It was bewildering to see the political greed for power and the disregard for the constitution on his part. Despite the protest and outrage, Nkurunziza went for a third term and easily got re-elected in an illegitimate and unconstitutional election. Equally important to note is that he organised for a favourable judgment from the Burundi Supreme Court that sort of validated his election. He combined a roguish disregard of the constitution, raw political power and the judgment of a court that shows a court acting as the servant of the master to extend his rein.

What is the difference between Nkurunziza’s and justice Tunoi’s cases?

The following pertinent issues must be noted. First, the Court of Appeal was obviously wrong in granting Justice Tunoi orders that allowed him to sit in the Supreme Court. The clause on retirement in Article 167(1) of the Constitution is clear on this. Whereas it is undeniable that the High Court has power and jurisdiction to hear Tunoi’s claim under Article 165(3) (d), it was obviously wrong to allow him to continue sitting as a judge. Here, it must be appreciated that High Court simply usurped the power of the Judicial Service Commission (JSC) Under Article 166 of the Constitution.

Second, it must be appreciated that a decision of the High Court on a constitutional issue is final and no right of appeal exists. Unless a specific statute underlines a given dispute before the court i.e. the Elections Act, etc., litigations based on the Bill of Rights or other constitutional provisions unsupported by an enabling statute that specifically provides for a right of appeal is final. Our courts right up to the Supreme Court have failed to appreciate and internalise this, and rendered many decisions based on constitutional heresy and usurping of power.

Third, Article 165(3) creates a constitutional court in the mould of constitutional courts in other parts of the world. Indeed, the High Court of Kenya is the constitutional court of Kenya. It has jurisdictional monopoly on most constitutional issues, especially the Bill of Rights, and no court, including the Supreme Court, has powers to review its decisions on matters touching on interpretation of the Constitution.

Illegally and illegitimate

Four, the Supreme Court as presently constituted is both illegal and illegitimate. It is contrary to and is in flagrant breach of the Constitution. Any decision it renders as long as Justice Tunoi participates in any proceedings before the court is not a decision of the Supreme Court of Kenya as per law established. This is a scandal the judiciary is hell-bent in covering up but will soon explode on its face and will have wide national political ramifications.

Five, because the leadership of the Judiciary under the Chief Justice and the JSC has failed to resolve the matter, political actors will soon get an opportunity to interfere in the courts. More profoundly, with elections scheduled for 2017, a political crisis of unimaginable proportion is likely to engulf the country if a presidential candidate aggrieved by the results of the election approaches the Supreme Court, which has a “stranger” sitting as a member of the Court.

Six, we are not party to internal debate between members of the Supreme Court on this issue. But it is priceless to eavesdrop or be privy to the internal and personal thinking or anguish of how judges of the court feel about sitting with a former member, whose term has expired.

Judges of the Supreme Court must be alive to the fact that the stature and standing of the Court has been crushed and almost obliterated. It is indeed the laughing stock in both the region and amongst legal scholars, the general public and members of the legal profession. The question on the lips of everyone is, how did the Supreme Court fall this low and so rapidly?

Revolutionary interpretation or loose political talk?

The Supreme Court was romanticised, conceived and constructed as the panacea to all that ails the Judiciary in particular and the country in general. It was heralded as the shining light that would illuminate the dark parts of our laws and land. It was to erect luminous signposts to guide both the courts and Kenyan people. Five years after its inauguration, the jury is still out on the Court.

The defining feature of the Supreme Court in the eyes of many must be its effortless metamorphosis into the “old Court of Appeal” – the corrupt, illiberal politically correct and connected from the late 1980s to 2002. Within a short period, the Supreme Court has inherited many of the vices of the “old” Court without acquiring any of its virtues. These vices include, but are not limited to a “chest-thumping, finger wagging interpretation of the law” – in a number of its decisions, the Supreme Court has referred to its role in both mythical and even religious terms, as ‘the final protector and custodian of the constitution’.

This is a unilateral decision, unsupported by any law – a condescending aura of invincibility and infallibility as the “apex court”, a torturous reading of the law and a brazen power grab in usurping jurisdiction where no law confers jurisdiction on the court.

It is because of these self-inflicted wounds that lower courts, the legal fraternity and even the Kenyan general public have not warmly embraced the court’s jurisprudence. It is not an exaggeration to state that the court so far has not captured the imagination of anyone, probably with the exception of the six sitting judges.

The Court, to its credit, has made good law and settled it in one very important aspect, and that is the area of electoral laws and election petitions. Starting with the presidential election petition and a number of cases touching on the elections of governors and even members of parliament, the Court has done a remarkable job in setting the law on very sound and admirable principles. In the process, the Court established clear ground rules based on widely accepted legal principles in many commonwealth countries.

It has also delivered a number of strong advisory opinions. But it is the one that touches on devolution that the court strongly comes up with serious issues of both law and policy. In fact, the advisory opinion of the court on devolution drew a line on the sand and for a time loudly pronounced the rebirth of the Judiciary as a bulwark against the intrusion of the executive and the legislature.

But the Court suffers from a number of self-inflicted wounds. The first is in the area of interpretation of the Constitution. Here, the Court has invested a lot of time and intellectual resources in establishing guiding principles in constitutional interpretation. Chief Justice Dr Willy Mutunga, in both his dissents and concurring judgments, always makes a deliberate effort to expand the contours of such interpretation while at the same time solidifying the foundation of the same.

But it is in relation to “interpreting” the Constitution that one sees a court “whistling in the wilderness” and gasping for jurisprudential coherence. To be fair to the court, the court makes an excellent pronouncement of its goal, which is to interpret the Constitution in a manner that progressively develops the law and makes the country a better place. But the elephant in the courtroom is either the deliberate refusal by the court to illuminate the techniques used for such interpretation or the unforgivable assumption that techniques of constitutional interpretation are equal to the result/aim/purpose of constitutional interpretation.

Even before one goes far in exploring the width and breadth of this important issue of constitutional law, one needs to ask the important question: what is meant by constitutional interpretation? And when does it arise? Can the Supreme Court, without being engaged in a practical factual controversy, pontificate on general principles/policy on constitutional interpretation and provide general guidelines or even judicial guidelines to lower courts? The Supreme Court fails to answer these two questions. A third related issue is: when does the need to interpret the text of a constitution arise? Or does the Supreme Court use the term “constitutional interpretation” as a mere tool to grab judicial powers? Or does it use the term as a simplistic answer to a difficult question it deliberately avoids to tackle? How can a court that has no known preference on the techniques and tools of constitutional interpretation attempt to interpret it and even provide guidelines? Isn’t it obvious that a court that has not developed such techniques has no soul to search for the meaning and values of the constitution?

A wholesale audit of the cases where the Supreme Court attempts to interpret the constitution reveals a very unsatisfactory state of affairs that is rich in popular rhetoric but poor in analytical tools of interpretation. The Court in the process as an exit strategy engages in what Justice Scalia of the American Supreme Court describes as “interpretative jiggery-pokery” to achieve a desired and preconceived policy decision.

In fact, Chief Justice Dr Willy Mutunga rightly and very boldly has commented on the urgent need to interpret the Constitution in a certain direction. His views are very correct and need urgent action. What one notices from his writings both in his judgments and outside the court is a sense of the clock ticking for the Court, and a palpable urgency and even panic to create sound foundation for constitutional interpretation.

The loud plea and silent lamentation in his judgments and writings are that the Court is not getting fast enough good opportunities to interpret constitutional text in context. This explains the high calibre and rapid-fire interpretative bullets and cannons he discharges every time he gets real and imaginary opportunities.

So when an issue of constitutional interpretation arises in a given context, three interrelated processes of interpretation are triggered. First, one must undertake such a process with all judicial honesty and fidelity to the law. It is a process that either builds or destroys the legitimacy of the court. Second, the Constitution must be interpreted to “present what seems to him or her to be the best, or most legitimate, form of allocation of functions, power and duties between institutions, and the proper restrictions on them. Thirdly, the Constitution ought to be interpreted within a given context in concrete cases. Rarely should a court interpret a constitutional text in the abstract.

The interpretative results of the Constitution as variously propounded by the Supreme Court and spearheaded by the Chief Justice have both strengths and weaknesses. One strength is that the Court has laid solid grounds on the “result oriented constitutional interpretation”. This result covers a holistic and encapsulating technique in the sense that it extends to the entire Constitution. It is a one-stop constitutional interpretation method.

The other strength is that this result oriented technique allows the courts to speak with one voice. By virtue of Article 163(7) the decisions of the Supreme Court are binding on all lower courts. Through this method, the Supreme Court ties the hands of all courts and forces them to adhere to the method it has decreed and propounded on. A uniform rule for all is thus created for the courts and the country.

Third, it is progressive, people-centred and acts as both a liberating force and the protective force against what the Supreme Court may conceive as forces that could derail the Constitution.

Two weaknesses need quick highlighting. First, the Court needs to persuade and carry with it other courts and the country instead of simply prescribing for all a one-stop method of constitutional interpretation. This, it must do by resorting to the traditional tools of constitutional interpretation and explain further why its preferred choice is correct and the right one for the country. The court obviously uses tactics and strategic techniques in settling on a result inspired interpretation but it needs to go further.

Second, the Court has not persuaded many on its interpretive techniques or strategy because the opportunities it used to propound on the same were mostly accorded to the court in “political advisory opinion cases” and not “context factual based” cases. The court needs a constitutional text in a given factual context to apply one or more methods of interpretation to the text in light of the defining features and characteristics of the case.

When the Court strongly propounds on these goal-oriented techniques of constitutional interpretation in Advisory Opinions, it comes out as dictatorial, suffocating, finger wagging and legislative.

The Supreme Court fared very well when it had opportunities to address specific statutes and constitutional text as in election petition cases. It did exemplarily well in both interpreting specific texts and the general law on elections. It set the law, even though in this area and as a classic example of the Court overreaching itself, it slightly muddled the water when it ruled that the courts’ jurisdiction is not just limited to interpreting and applying the Constitution, but extends to anything that is a normative derivative of the Constitution.

Gluttony for jurisdiction?

This is another problematic area where the court has made a false start. Whereas the Courts’ jurisdiction is very narrow and limited under Article 163 of the Constitution, it in a very short time expanded its jurisdiction through craft and innovation.

Contrary to the widely held view by the Judges of the Supreme Court and so eloquently pronounced in a number of their decisions that define the court’s jurisdiction in near messianic and sacred terms, the Constitution sets a very narrow and “part time jurisdiction” for the court.

Under Article 163(3), the Supreme Court has the following mandate: (a) hearing and determination of presidential election disputes [part time jurisdiction for just 14 days that arise once in every 5 years, if a dispute arises]; (b) the jurisdiction to hear appeals from the Court of Appeal or Tribunals in cases involving interpretation and application of the constitution [this only arises where a constitutional law issue either arises before the Court of Appeal or originates from the High Court like in election petitions] and (c) deliberate and rule where either the Supreme Court or the Court of Appeal certifies that a matter from the Court of Appeal raises “a matter of general public importance” (ideally these are very rare matters that arise once in a lifetime).

Considering the narrow and sparse jurisdiction of the Supreme Court, the apt question one must ask, is how come the Supreme Court has been very busy hearing many cases in the last five years? The simple answer is that the court has been hearing many cases on the simple premise that it is the “apex court”!

Whereas the Court has done extremely well in handling the first presidential election petition, its innovative interpretation of Article 163(4) (a) and (b) has triggered alarm bells. Is the Court accountable to anybody?

This problem is self-inflicted and caused by poor management structures. In the Supreme Court, a single judge can certify a matter urgent and issue interim orders. There are many cases where such an order is granted and the President of the court and even other members of the court are not aware! In fact, parties get interim exparte orders more easily in the Supreme Court than in a typical magistrate court in rural Kenya. In many supreme courts in other parts of the world, a conference call of all the judges is made mandatorily and a consensual agreement is a prerequisite before any interim orders are granted.

Failure to get a consensual agreement means the case is then listed for emergency hearing by the court.

It is no longer the rule of law that reigns supreme in the Supreme Court of Kenya. It is fiat and the rule of man that applies.

Court of Appeal: Out of the woods

From a historic point of view, this Court bore the brunt of reforms both during the radical surgery and the vetting of judges and magistrates. On both occasions members of the court were victims of the vicious curling that obliterated high-ranking members of the court. The reason is simple: as the then court of last resort, the Court of Appeal stood as the final barrier against judicial reforms. Equally, the court gleefully exhibited all that ailed the Judiciary and exemplified the bad and the ugly in the institution. The rebirth of this court justifies the pain and reforms members of the court were subjected to.

The Court of Appeal is actually the court of last resort in over 90 per cent of the cases that end up before courts. It is thus a very critical court in the broader structures of the justice system. It is now fully staffed, decentralised and firing on all cylinders. Finally, this Court has addressed the backlogs of cases that painted it in a very bad light. If the Kenyan Judiciary is desirous in delivering its promise of a fair and efficient justice system to the Kenyan public, the Court of Appeal holds both the potential and promise to deliver.

The court’s stature and standing has been improved by a number of factors. One, due the recruitments of new judges both from the bar and the Judiciary, the court now has some of the best jurists in the country. Its judgments stand out in term of both depth and solidity.

The court has also found consistency and adheres well to precedent.

Second, the Court has greatly improved its efficiency and delivery of justice to the people of Kenya. All the courts outside Nairobi hear appeals and applications in real time; backlogs are a thing of the past.

Third, it is gratifying to see the president of the Court of Appeal listed in the daily cause list of the Court. The “big chair, big office” syndrome that is traditionally the hallmark of judicial officers has thankfully not been embraced.

Overall, a great satisfaction with this court is noticed. It should not sit on its laurel but must innovate and improve.

High Court: Good, Bad, Ugly

More than 100 judges sit in the High Court and the other courts of similar status, compared to about 45 four years ago. This court has also some of the longest serving members of the Judiciary. This court has also some of the most outstanding jurists of the Kenyan judiciary. Justices Isaac Lenaola, Mumbi Ngugi and George Odunga take huge credit for the positive image this court in particular and the Judiciary in general enjoys, and must be commended for the very Kenyan jurisprudence they have developed in the areas of constitutional and administrative law.

Justice William Musyoka, a new face, has already left his mark in the Family Division. They are many other judges who are doing an honest day job in the High Court, and they need encouragement and acknowledgment.

One, corruption is back in a big way. Some judges of this court probably are in a hurry to retire and want to make as much money as possible in the shortest time possible. Others simply don’t care and can deliver the most ridiculous and senseless of judgments, depending on who pays them. Corruption is rampant in some strategic divisions throughout the country, especially the Coast region. The Chief Justice obviously knows who these judges are, and he needs to explain to Kenyans why no action is being taken against them. Under whose protection are they?

Two, the idea of creating specialised divisions of the High Court is a great idea. But this will only make sense if intellectual powerhouses are embedded in these divisions. The Constitutional and Human Rights Division and the Judicial Review Division in Nairobi stand out because of the integrity and intellectual scholarship of the judges that sit in these divisions.

The Commercial Division, due to a combination of crippling factors, is in terminal decline. Despite Nairobi being the regional hub and a very strategic commercial centre, commercial disputes are piling up. The division has not been noted for any profound achievements either in scholarship or in industry.

Three, the Chief Justice must appoint heads of stations and divisions on criteria that rewards industry, scholarship and integrity. He must punish mediocrity, laziness and corruption and should never tolerate or make excuses.

Four, judicial impunity is a big problem. Certain judges, depending on their mood and personal likes or dislikes, can do as they simply desire or want. When a judge writes a ruling or judgment that is deliberately dishonest or outrightly fraudulent –due to corruption or incompetence – the JSC must step in and address this unacceptable conduct. The long time it takes to appeal such decisions only serves to entrench judicial impunity.

Five, the laziness of certain judges is legendary. We have many hard working judges, and I think the Civil Division stands out as one that has done an excellent job in the last six months by clearing and concluding many cases. Again, both the Constitutional and Judicial Review divisions exemplify hard work and honesty.

Paper presented during the Judges’ Colloquium in Mombasa last month