By Ndung’u Wainaina
On October 19, 2011, Chief Justice and President of the Supreme Court of Kenya Dr Willy Mutunga said thus, “we found an institution so frail in its structures, so thin on resources, so low on its confidence, so deficient in integrity, and so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a Judiciary that was designed to fail. The institutional structure was such that the Office of the Chief Justice operated as a judicial monarch supported by the Registrar of the High Court. Power and authority were highly centralised.”
Kenya has made positive strides in rebuilding its Judiciary. Although the institution remains frail, the Judiciary is on the path of reform, offering a mixed sense of hope. Modern-day courts are operating in a complex and ever-changing environment. The role of the courts must, therefore, evolve to bring their structures and functions into conformity, and the demands of a changing society.
The leadership at judiciary has kept the promise of judicial reforms. It has tried to reach outside the legal community for fresh ways of thinking and to get new ideas to keep the courts effective and efficient. Today, the Judiciary appears to be a willing participant in the state transformation process. However, there is a significant series of missteps and lost opportunities when the Judiciary’s leadership has seemed to prevaricate. Certain decisions have been made in what have been clear attempts to balance various competing interests when the public expected firm and unequivocal leadership.
Dr Mutunga was appointed after a gruesome open vetting process. This earned him high ratings. He remains a force to reckon with, despite losing significantly the level of public approval he once enjoyed. Judiciary is no longer a walking toddler. It has to assert itself and make a difference in the affairs of the country. This is what every Kenyan expects of truly reformed Judiciary.
The institution had, for decades, depended on the magnanimity of the Executive for survival. It had to literally beg for funds. But the Constitution of Kenya (2010) established financial autonomy for the Judiciary. It prohibits the Executive and Legislative arms of State from holding onto the funds meant for the Judiciary. The control and disbursement, by the other two arms, of funds meant for the Judiciary was unconstitutional and invalid. The judiciary budget is charged on the consolidated revenue of the state and paid directly to Judicial Fund managed by Judicial Service Commission.
The hiring of judicial officers has been converted into a fair, open and competitive process. Constitutionally, the Executive has only a ceremonial role in appointments, unlike in the past. The welfare and career growth of judicial officers is determined by set judicial rules, and not the fiat of a person. The Judiciary enjoys institutional independence whilst judges, as law officers, enjoy personal independence in the performance and discharge of their duties.
Judicial corruption is still a menace that portends danger for the constitution and administration of justice. When the Judiciary is corrupt, it facilitates corruption in other sectors of government. It transmits to the public that corruption is tolerable, even acceptable. So far, 32 judges – and a significant number of magistrates – have been sacked by the Judges and Magistrates Vetting Board on grounds of corruption, professional misconduct, lack of grasp of the law, and procedure and indiscretion, since the beginning of vetting process. This constitutionally sanctioned vetting of all judges and magistrates who were in office before August 2010 has the objective of restoring public confidence in the Judiciary by weeding out judges and magistrates found to be corrupt or inept. Indeed, stakeholders have argued that until the Judiciary is able to purge itself of bad eggs, it will contaminate the whole system. Corruption undermines the integrity and credibility of the entire legal system; it is a significant source of institutional or systemic malfunction. A corrupt judiciary is prone to political manipulation. It is weak in the protection of the fundamental human rights of ordinary citizens, especially the protection of rights that are of a civil and political character.
From a critical scrutiny of the Kenya Judiciary Transformation Framework, one can surmise the four planks that were elevated for major reforms in Judiciary. These are judicial systems and procedures, institutional development, human resource development, and reform support systems. The judiciary reform blueprint projects and activities were aimed at enhancing judicial conditions and performance for the improved delivery of judicial services. The reforms were expected to restore institutional integrity and ensure justice for all, especially for the vulnerable majority.
To realise the intentions of the judicial reform framework, policies were adopted. Principle among them were the improvement in the overall institutional capacity and integrity of the Judiciary for improved efficiency; reforms in judicial systems and procedures; improving public information; initiatives that encourage reforms in the justice system components outside of the Judiciary; legal and judicial education; and continuous assessment of the impact of judicial reform programme on access to justice.
There are factors identified as major hindrances to quality judicial services. These are basic lack of access to courts, delays in judicial proceedings, erroneous decisions rendered by lower courts, prohibitive costs of litigation and inadequacy and lack of information about the judicial system. The judicial reforms institutionalisation process is only possible if political and legal stability allows the courts to develop properly. This implies the absence of importing divisive political fragmentation and ethnic cleavages, as well as accelerating state building, which are necessary conditions for the success of judicial reforms.
There is still some significant distance to cover in transforming the judiciary. The major test of the judiciary transformation framework is how the reformed institution will play the pivotal role of agency of state reformation, facilitating Kenyans to adequately access court, and determining disputes equitably, fairly and expeditiously. The Judiciary must not shy from this project. So far, it has Kenya country. The Judiciary is still looking over its shoulders.
Occasionally, Judiciary seems under siege from Executive and the Legislature for issuing decisions deemed to ‘interfere with the mandates of other arms of government’. However, the constitution, which guarantees the fundamental rights of citizens, has assigned the task of interpreting and enforcing the laws of the land to the Judiciary. This key institution enjoys the very unique role of being the guardian and custodian of the constitution; a watchdog and, to borrow the words of one of the founding fathers of the American Constitution, James Madison, “truly the only defensive armour of the country and its constitution and laws”. Liberty and rule of law can only prevail in the country if judiciary is aggressive and pro-active in executing its mandate.
The entrenchment of the rule of law in Kenya is still pathetic. While the normative framework of constitutional governance is established through the Constitution of Kenya 2010 and the various institutions established under it, deeply embedded values of constitutionalism are far from gaining recognition and momentum. Yet, social and economic progress is dependent on deepening constitutional democracy, and successfully application of the rule of law. Failure to enforce rule of law effectively undermines maturing of constitutional democracies and pose grave threats to good governance – this demands effective accountability and participation in public policy-making, the prevalence of the rule of law and an independent Judiciary. It is also reflected in a well-established system of institutional checks and balances through horizontal and vertical separation of powers, and impartial, capable resourceful oversight agencies. The Judiciary is central in promoting and supporting growth of a good governance system.
More than textual provisions
The courts that robustly interpret and enforce the constitutional principles are the fulcrum of good governance practices and ethical leadership. Citizens exercise their rights by going to court to force government to live up to a higher vision of public policy and democratic values. The judicial dictate is only to compel the Executive and Legislative arms to perform these legitimate functions without taking over the task itself. Judiciary cannot therefore be faulted because the power to issue a mandamus is vested in it.
Constitutional democracy is not tantamount to the mere textual provisions for various organs and institution of government. It is the actual internalisation of the constitutionally prescribed rules as enduring ethos in the conduct of affairs of the State to guarantee equal enjoyment of stability, peace and development of a modern nation. If the Parliament and the Executive were responsive to the democratic citizenry, their active involvement in judicial reviews of their actions would not be necessary. The same would be true if the government understood the constitution in the same broad rights-protective way that the courts do. The role of courts in a system that strives for good governance is to gain importance today, particularly with regard to the reformation of society taking place.
A judicial system, from a governance perspective, is important not just for adjudicating but also for socialising and enforcing rules. The role of the Judiciary in governance is not only critical but underscores the centrality of law in a polity. The Judiciary serves as a counter poise to malfeasances by the Executive and Parliament. The Judiciary is responsible for vigorously restoring and enforcing integrity, ethics and morality in politics and governance as those holding public positions make policy and legislative decisions with adverse effects on lives and rights of people. The legal culture developed by the judicial system in the course of its work is important for how people perceive not only the judiciary but also the political and governance system at large.
While the system of governance in Kenya is claimed to be based on law, this does not necessarily translate into the behaviour of those who govern and the governed to have respect for the law. This disregard of law translates into serious threats to constitutional democracy, as the legal system may not be able to respond to the growing sense of lack of trust and faith in the institutions. Enforcement of the rule of law and efforts to protect the rule of law ought to be shaped from historical perspective and new global dynamics with a view of improving the capacity of the legal system to respond to transgressions. Passing more laws and establishing more institutions credited with responding to injustices may not be the right approach. There needs to be a fundamental re-examination of the approaches that the country has adopted to enforce the rule of law.
In developing authoritative well-researched jurisprudence, the Judiciary would critically examine and offer crucial tools to test the effectiveness of emerging nascent constitutional democracy, given the fact that pervasive corruption is still institutionalised in all institutions of governance. The paradox of Kenya governance system is that in spite of a vigilant press and an assertive public, the level of endemic corruption is exceptionally high. And the Judiciary is not spared. This may be attributed to the utter insensitivity, lack of shame and the absence of any sense of public morality among those bestowed with responsibility and positions of public office. Indeed, they wear their badges of corruption and shamelessness with equal zeal and brazenness. This has accentuated the twin problems of “criminalisation of governance’ and ‘politicisation of crime.’ Therefore, the decisive role of the Judiciary in sanitising governance becomes vital.
The standard democracy story presupposes that democratic policies are whatever democratically certified political bodies create. Kenyans have had quite enough of nominally elected politicians doing whatever they want with no concern either for the electorate, or for basic rights. Kenyans want to ensure their rights are protected, both affirmatively without falling between socio-political cracks and guarantee that they would not fall back into the bad old days, where basic civil liberties were blatantly abrogated.
Whenever government starts to look like old era fiat in the way it treats the citizenry, the courts have an obligation to spring into action. The Judiciary’s job is to protect constitutional values and democracy. Robust court action forces the Executive and Parliament to stop and reconsider policy decisions objectively in conformity with constitution. The CJ is on record observing the role of the Judiciary in building sustainable democracies: “This state of affairs (in the Judiciary) imperil our democracy as the imperative of checks and balances effectively becomes inoperative when the balance of power is heavily tilted in disfavour of the judicial arm, as it is now.”
Redeeming actions
Democracy is a set of substantive commitments directed to policy and not just as a set of procedures for getting there. It is associated with a substantive set of rights to be treated decently and with respect. It is not associated with republicanism or elections only. Democracy demands that there be some interest-aggregating mechanism outside of political system, organising and bringing public input to bear on policy-making. This is the conception of democracy that courts should defend vigorously.
This writer, in the May 2014 edition, said this about role of Judiciary in governance transformation: “The adoption of the Constitution entailed a country’s pre-commitment to its contents and the same become binding on future generations. Clearly, the understanding and application of constitutional principles cannot remain static. India’s judiciary was historically heavily criticized for siding with wealthy and powerful people in society while subjugating the masses. However, it redeemed itself by robustly and courageously the interpretation of the constitution and transforming the corrupt Indian governance system. Therefore, the Kenyan judiciary has a unique opportunity to change the course of this country. They should expect resistance and fierce fighting by a corrupt political system during this period but fortunately, there are competent, courageous and transformative judges ready and willing to withstand the heat in a bid to steer the ship triumphantly. These judges should be called to duty.”
An independent judiciary is a defining and definitive feature of a functional democracy. It is an essential bulwark against abuse of power, authoritarianism and arbitrariness by the state. How it functions as well as how the various stakeholders in a democratic environment appropriate its interventions and role in the polity are critical indicators of the health or otherwise of a democracy. The judiciary plays a critical redemptive role in nurturing an open pluralistic democratic state through declaration of landmark judgments that defang the undemocratic actions of executive and legislature. This offers reassurance to the citizens on the prospects and sustainability of constitutional democracy in the country. Apart from occasionally scattered bombshell judgments, the Kenyan judiciary is yet to make a significant mark in its redemptive role of cleaning governance.
The Judiciary still has a critical number of judges, vetted and fairly recruited, who are immersed in past thinking and mindset. They act as gatekeepers of the privileged in the society and the state. These judges are custodians of preserving the status quo. They are ultra conservative and pro-establishment. This group of judges operates as though the constitution changed nothing. They merely espouse the constitutional text without deeply interrogating the intent and philosophy of the Constitution. Conservative constitution interpretation remains a matter of grave concern to the Kenyan public. It holds back the transformative character of the constitution. People of Kenya gave Judges constitutional security of tenure. As such, their mandate and obligation is to the people of Kenya and the constitution. There should be no looking over shoulders.
What Judicial activism?
In the same article referred to above, this columnist dismissed accusations levelled against the Judiciary as follows: “There is nothing like judicial activism within the Kenyan judiciary for three main reasons. Firstly, the courts’ work is to ensure fairness in administrative action. Secondly, to protect the constitutionally guaranteed fundamental rights of citizen; and thirdly, to rule on questions of legislative competence between the centre and the periphery. Courts have powers to enforce these rights unconditionally. To the best of my knowledge, the courts are delivering the Constitution’s vision. They have with certainty helped in binding the polity to its core constitutional principles and purpose. Courts must therefore remain frontiers of guarding against re-introduction of centralised dictatorial system of governance and affront on civil liberties.”
The Judiciary, which is striving to uphold the supremacy of the Constitution, is far from reaching the ultimate custodian of the rule of law and the highest institution of accountability status. The Judiciary has a certain enviable constitutional mandate of promoting, defending and upholding the purpose and principles of the Constitution of Kenya. The Constitution is not static. Its transformative character will only have effect if the Judiciary becomes bolder and more courageous. The people of Kenya, through the constitution, extinguished days of a submissive, pliant Judiciary. Constitution-making did not stop at the referendum. The Judiciary has the responsibility to breathe life into the constitution through developing deep progressive legal jurisprudence.
There is need for the highest court in the land to minimise grey areas that exist in the constitution by giving clear interpretations on contested constitutional issues to avoid causing unnecessary public confusion. The Supreme Court is yet to come out clearly to shepherd the nation on matters requiring constitutional interpretation. Other jurisdictions – such as in Pakistan, India, South Africa, Colombia and the United States, among others – have seen similar courts take up this task with gusto, laying to rest matters of huge public interest with finality and certainty.
The Kenyan Judiciary is facing one such crucial situation at the moment. It is watershed time in history that, if lost, will deal a huge blow to the very independence of the Judiciary and constitutional values and principles, from which it might be difficult to recover.
Glaring gaps
The tide of unwarranted political affront directed at the Judiciary shows an institution starting to tame an increasingly rogue Executive and Legislature. The Judiciary has to deploy its inherent powers to swiftly stem out disregard for rule of law, including disobedience to court orders. The people of Kenya and the Judiciary must never succumb to political intimidation or threats. Politicians must be thoroughly subjected to the rigors of law, transparency and accountability while executing their constitutional duty of representing, legislating and oversight. It is perhaps important, at this juncture, to continue to task the Judiciary on the need to curb extra-judicial killings and the use of force by security officers. This is because the impunity of security agents for abuses of constitutional rights of the citizenry is alarming.
Our Judiciary has glaring gaps to assume its position as the bastion of democracy, the absence of which would have created room for the continued reign of tyranny of the strong, rich and mighty. It would be great moment to see judiciary seize the opportunity to, among others; courageously tackle the arbitrariness of politicians, the highhandedness of those in power and the illegalities and brazenness of a few privileged individuals.
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