Hon. Martha K. Koome, EGH, Chief Justice and the President of the Supreme Court of Kenya; Honourable Judges Present; Distinguished Guests; Ladies and Gentlemen;
It is a great pleasure for me to join you for the 2024 Annual High Court Human Rights Summit which seeks to reflect the advances that the Court has made in enforcing human rights.
Seeking to address the theme of “Upholding Human Rights in a Changing Kenya” greatly reflects the Judiciary’s commitment to advancing human rights in an evolving environment. I commend you for organizing this critical Summit, which brings together key stakeholders from the legal profession, the civil society, and development partners.
Hon. Chief Justice, Ladies and Gentlemen; Human rights occupy a central place not just in our Republic. Indeed, the drafters of the Constitution entrenched a robust Bill of Rights and mandated every state organ to observe and enforce it.
Specifically, Article 21 of the Constitution provides that it is the fundamental duty of the State and every State Organ to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms in the Bill of Rights.
The national values and principles of governance contained in Article 10 of the Constitution guide all state officers and organs in making public policy decisions and interpreting or applying the Constitution.
Our transformative Constitution identifies the judiciary as the chief protector and guardian of human rights. The Courts that are headed by the Hon. Chief Justice are conferred with the solemn duty of redressing any denial, violation, infringement, or threat to a fundamental freedom contained in the Bill of Rights.
I have had occasion to consider the symbolism of the various statues and monuments that have been used to depict the Judiciary within and outside our country. Any frequent user of our courts must have, by now, noticed the statue of the naked boy that has stood outside the Supreme Court Building ever since it was the High Court Building.
Hon. Chief Justice, Ladies and Gentlemen; From my reading, the Hamilton Statue, represents the innocence of justice. Conversely, justice is represented as a blindfolded woman holding a weighing scale and a sword in other jurisdictions worldwide.
This different statue derived from ancient Greek and Egyptian times where Themis, the Greek goddess, represented law, order, and justice, while the Egyptian goddess Ma’at stood for order and carried both a sword and the Feather of Truth.
The weighing scale and the blindfold represent the obligation of the court to be impartial and subjectively consider the evidence presented in the court, while the sword represents the need for the enforcement and respect of the decisions of the Court. Notably, the representation of Justice as a woman is said to allude to clear-sightedness. I much prefer this statue as a representation of Justice in Kenya, especially during the tenure of our first Lady Chief Justice.
Honourable Chief Justice, Ladies and Gentlemen; I commend the Judiciary for the admirable work that it has done in discharging its onerous mandate of enforcing the Bill of Rights. Time and again, as expected by the framers, the elastic limits of our Constitution have been tested. Invariably, the Judiciary has risen to the occasion over the last fourteen (14) years and guided the nation on the constitutional way forward without fail.
The Judiciary has stood as a bulwark against any threats to the rights enshrined in the Constitution. During the three changes in its leadership, it has guided us on key jurisprudential questions, including those touching on legislation by Parliament.
In particular, the Supreme Court has recently guided on the parameters that a court should consider before declaring a statute to be unconstitutional.
On a lighter note, in the same way that King Lemuel advises his son in Proverbs 31:31, I wish to give the judiciary credit, for she has become a radiant woman, and all her loving works of righteousness with respect to that particular decision deserve to be admired at the gateways of every city.
Honourable Chief Justice, Ladies and Gentlemen; In our work as Parliament, we have been keen to ensure the discharge of our legislative, representation and oversight roles upholds fundamental rights and freedoms to the fullest extent. Through tools such as questions, petitions and statements, legislators have raised issues in the House on cases of violation of human rights for action and sought responses from the relevant bodies.
Additionally, Parliament has enacted laws that implement human rights. Notably, the National Assembly is presently considering the Persons with Disabilities Bill, 2023, which seeks to implement the rights of persons with disabilities as enshrined in Article 54 of the Constitution.
With respect to oversight, Parliamentary Committees have conducted various inquiries and investigations on violations of human rights and recommended the appropriate action to remedy grievances. Presently, Committees of the National Assembly are engaged in inquiries relating to alleged human rights violations by the British Army Training Unit in Kenya and the alleged historical and systemic dumping of toxic waste in the northern parts of Kenya.
Honourable Chief Justice, Ladies and Gentlemen; In support of key actors that promote and enforce the Bill of Rights, the National Assembly has consistently sought to provide adequate budgetary allocation to the justice sector, within the available fiscal envelope. This has seen the gradual increase of allocations to the Judiciary and other key actors over the years.
I am keenly aware of the critical role of the civil society and our development partners in supporting the Judiciary in its enforcement of the Bill of Rights.
Indeed, the convening of this Summit has been made possible through such support. However, it is my enduring belief that we must respect and discharge the responsibilities that accompany our wholehearted effort to enforce human rights.
Honourable Chief Justice, Ladies and Gentlemen;
Observance and enforcement of human rights is a responsibility that attaches to all of us. In addition to highlighting any real or perceived violation of human rights, I wholly encourage the civil society and our development partners to lend their voice in condemning injustices committed against state actors and private individuals whose rights are negatively affected by the actions of other citizens.
For some reason, a demonstration to enforce particular rights is not deemed as successful or impactful in this country unless there is destruction of property or loss of lives. The recent attack on Parliament saw the endangerment of legislators and the wanton destruction of state and private property. Where was the condemnation?
Honourable Chief Justice, Ladies and Gentlemen;
The other day, I saw a Member of a certain County Assembly being frogmarched into a pothole filled with rainwater and mud for having not repaired a road. Is this behaviour that we can idly observe? Is this civil in any way? Where was the civil society to educate the public that the role of repairing roads is not assigned to legislators?
I believe that the thinking that legislators are “fair game” is an indictment on those assembled here who have prioritized certain human rights above the rights of others.
It would almost seem, in the words of Shylock in Shakespeare’s Merchant of Venice, that if you prick, tickle or poison legislators and other private citizens, they neither bleed, laugh, or die. I know we can do better. We need to be fair.
Honourable Chief Justice, Ladies and Gentlemen; In our interaction with the Court, and just like any individual or organization that takes us to court, we crave consistent arguments and decisions. Litigation on the modalities of considering a Finance Bill offers a relevant example. Since 2018, various civil society actors have litigated on issues surrounding the Finance Bill.
Initially, in 2018, the High Court ruled that a legislative proposal containing proposed revenue-raising measures to be included in a Finance Bill should be submitted to the National Assembly by 30th of April each year and passed by the 30th of June.
The National Assembly acquiesced with this decision and amended both its Standing Orders and the Public Finance Management Act. Oddly, the same civil society actors proceeded to sue the National Assembly in 2023, challenging its compliance with the same timelines they had procured from the Courts.
Secondly, the civil society recently lobbied for the rejection of the Finance Bill, 2024 both in Court and to H.E. the President. Their argument in June of this year was that there is no requirement for the enactment Finance Bill annually. Oddly again, after the rejection of the Finance Bill, 2024, the same actors have instituted court proceedings to declare the Appropriation Act of 2024 unconstitutional for want of the passage of the Finance Bill. Where is the consistency?
Honourable Chief Justice, Ladies and Gentlemen;
The Late Mwalimu Julius Nyerere, in 1969 address at the University of Toronto titled Stability and Change in Africa quipped as follows in reference to the liberation of South Africa— We believe that if a door is shut, attempts should be made to open it; if it is ajar, it should be pushed until it is open wide. In neither case should the door be blown up at the expense of those inside. But if the door to freedom is locked and bolted, and the present guardians of the door have refused to turn the key or pull the bolts, the choice is very straightforward.
It is clear in my mind that we have at our disposal a robust Constitution and constitutional practice that represent a door that is wide enough to accommodate any shade of opinion within the confines of the law. Let us use it, abide by it, defend and protect it.
Honourable Chief Justice, Ladies and Gentlemen;
Parliament is committed to and shall always adhere to the rule of law. We are guided by and shall abide with court decisions. All we request is fairness and consistency in how we are treated by this arm of government, civil society, and our development partners.
Honourable Chief Justice, Ladies and Gentlemen;
Parliament remains open and willing to collaborate with the Judiciary and the actors here assembled within the confines of the Constitution and its prescriptions. We are further open to the views of all stakeholders in advancing and promoting human rights.
In conclusion, I wish to once again commend you for organizing this timely Summit. With those few remarks, I take this opportunity to wish you fruitful deliberations for the rest of the Summit.
I thank you all!
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