Between Activism and Restraint, The Supreme Court of Kenya Must Balance the Exercise of Judicial Power

SCOK

“We also speak knowing that it is our duty to ask ourselves what is the use of having a Constitution if it is not honoured and respected by the people. The people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights. The people know and believe that destroy the rule of law and you destroy justice, thereby also destroying the society. Justice of any other kind would be as shocking as the crime itself. The ideals of justice keep people buoyant. The courts of justice must reflect the opinion of the people.” – Chief Justice Madan in the case of Stanley Munga Githunguri vs Attorney-General (1985).

A functioning constitutional democracy requires a judiciary that is both impartial and independent. A judiciary that accepts it as its duty to give full effect not only to the letter of the Constitution guaranteeing fundamental rights and freedoms, but also its spirit.

For the letter killeth but the spirit giveth life.

In reality, judicial power is potentially no more susceptible to abuse or misuse than legislative or executive power but the difference is this: the abuse or misuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse or misuse of judicial power. Where there is no constitutional referee to review judicial wrongs, the judiciary’s responsibility becomes all the more onerous upon of its officers. It is therefore crucial for judges to remain conscientiously alive to the truth that with this potentially awesome breath of judicial power comes great judicial responsibility.

Most of us have read the recent judgment of the Supreme Court of Kenya (available here) in the matter of several Presidential Election Petitions challenging the Independent Electoral and Boundaries Commission (IEBC)’s declaration of Mr. Uhuru Kenyatta as the duly elected President of the Republic of Kenya. In this judgment, the highest court in the land purports to give reasons in detail why it unanimously dismissed the presidential petitions before it, effectively paving the way for the assumption into office of Mr. Kenyatta as the fourth Commander-in-Chief of Kenya.

At the heart of this 113-paged judgment on the “political-cum-constitutional” electoral process is a clear dichotomy between matters the Supreme Court Justices considered to be “constitutional-legal” and those they considered to be “political”, the latter being perceived as non-justiciable and beyond the competence of the court. For many, paragraph 203 of the judgment is crucial as it problematises the Judiciary’s role to give full effect to both the letter and spirit of the Constitution:

“…we express the opinion that, in the special circumstances of this case, an insightful judicial approach is essential. There may be an unlimited number of ways in which such an approach is guide the Court. But the fundamental one, in our opinion, is fidelity to the terms of the Constitution, and of such other law as objectively reflects the intent and purpose of the Constitution.” (Emphasis mine)

It is indeed tragic that the Supreme Court does not elaborate in any measure of detail as to what this insightful approach entails or whether their understanding of fidelity relates only to the black letter of the law or whether it extends in due measure to the spirit of the law.

Implicit in the court’s judgment is the acceptance that in the case of a Presidential election, the court should be guided by an approach of judicial restraint as the question before it is more political than constitutional-legal. Therefore the court was persuaded, with questionable arguments supported by equally questionable Commonwealth precedents, that the standard of proof in Presidential Election Petitions should be artificially higher than it ought to be so as to curb judicial intervention in matters where the electorate are deemed to have exercised their political choice by casting their vote.

It is ironic that in arriving at this troubling decision in favour of judicial minimalism, the Court was guided by the celebrated South African case of Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC). However the Court failed to distinguish this case from the case before it and crucially point out that the TAC case clearly illustrates that judicial activism in constitutional adjudication is viable and part of modern day constitutional jurisprudence. The passage lifted from the TAC case and referred to by the Court at paragraph 223 of the judgment was not the holding of the South African Constitutional Court in that case! The passage cited at paragraph 223 was the contention of the South African government’s counsel in an attempt to avoid being held accountable for its HIV/AIDS policies at the time. The South African apex court, however, held that no system of separation of powers is absolute, since “there are certain matters that are pre-eminently within the domain of one or other of the arms of government”. The South African court therefore found that it has powers to evaluate the reasonableness of measures taken by government, where they are challenged for being unconstitutional. Thus where appropriate, the theory of separation of powers would not preclude that Court from making orders that have policy implications, and such a ruling does not result in a breach of the theory of separation of powers.

The extent of judicial restraint exercised by the Supreme Court in its judgment is at the core of the collective disappointment shared by many Kenyans. In a well reasoned and must-read dissection of the judgment by seasoned constitutional lawyer Wachira Maina (available here), he opines:

“The unhappy feeling one comes away from this judgment with is just how stringent the standard that the Court imposes on petitioners is. And, conversely, save for the rather tame recommendation that IEBC be investigated and maybe prosecuted, just how so very lenient the standard by which IEBC’s performance has been judged is.”

In this vein, we should all take heed of the wise words of former South African Judge Albie Sachs who is currently a member of Kenya’s Vetting of Judges and Magistrates Board. In his eloquent judgment in the case of Prince vs President of the Cape Law Society and Others, Sachs reflected that: “Undue judicial adventurism can be as damaging as excessive judicial timidity.”

What Kenyans needed to see come out clearly in this judgment of Supreme Court was a balance between these two approaches of activism and restraint. In a country of vast inequalities and historical injustices such as ours, judges cannot afford to be textual, formalistic and mechanical in their interpretation of the Constitution. A purposive, contextual and liberal approach to constitutional adjudication is crucial as it provides for protection of fundamental rights and freedoms as against claims of state security and national stability.

In light of this judgment one wonders whether this judiciary will survive the potential onslaught led by rogue parliamentarians, kleptocratic cabinet ministers, and others who may have little regard for the Judiciary. After all, the Judiciary has no army or police force and neither does it have the power of the Purse. Judges are not elected and therefore do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

Therefore, the Judiciary relies heavily on the confidence bestowed upon it by the public for its independence and impartiality. In an earlier post, this blogger condemned the Executive Branch of Government in strong terms for interfering with the Judiciary through harassment and intimidation of its members including the Chief Justice. Indeed a functional constitutional democracy is one where the public is vigilantly alive to the important role played by the judiciary in protecting the rights and interests of ordinary citizens – including those that form the electorate.

However, the people of Kenya must always hold the Judiciary accountable and responsible for any and all exercise of judicial power. In the present case, it is our solemn duty and responsibility to criticise and lay blame squarely on each of the Supreme Court Justices that have individually and collectively misused the sovereign power donated to them by people of Kenya as enshrined in the Constitution.

If the loud silence that currently reverberates from many quarters of our country is anything to go by, the courts of this land must double their efforts to (re)build public confidence in the Judiciary.

#KenyaAtWar: “The Question of Unity”

I was watching my Twitter timeline intently on Monday evening.

Reports that a bomb had gone off in the CBD at the OCL bus stage and that there may have been deaths, definitely ‘tens of injuries’.

It wasn’t shock or fear that immediately overwhelmed me; moreso confusion and malaise. My first question was obviously “Does this have anything to do with the ongoing efforts in Somalia?” If so, this was a clear escalation and warranting of some concern. If not, it meant yet another problem – threat, perhaps – had befallen our country.

The second question was “Are we as Kenyans ready yet?” Continue reading

Who Am I Voting For in 2012?

Vote For Nobody Graffiti

Someone asked me the above question and I told them ‘Nobody’.

They laughed.

I didn’t.

I don’t expect much of the government. I expect even less from the president as an individual. As far as I’m concerned, the majority of politicians seeking office aren’t competent enough to operate a smartphone, so why trust them with a country in the 22nd century? Continue reading

What a Horrible, Horrible, Horrible Time to be a President

by tripppleO

“When thousands of peoples is riled up to see you
That can arouse ya ego, we got mouths to feed so
Gotta stay true to who you are and where you came from
Coz at the top will be the same place you hang from
No matter how big you can ever be
For whatever fee or publicity, never lose your integrity”

- Nasir bin Olu Dara Jones (aka ‘Nas’)

Long hours on the campaign trail, packed and charged rallies, meetings with campaign donors, countless election strategies and counter strategies all culminating in the announcement of the win and the swearing in ceremony. It’s all usually glamorous and inspiring to most people looking in from the outside. Although the campaign period is extremely stressful and draining on the candidate the really hard work begins once that candidate is sworn into office.

Just ask Barack Obama. After his ‘landslide’ win he embarked on achieving some of his campaign promises and he was successful in some most notably healthcare and Wall street reform. However, there is the big issue that has dominated news in the States these last 6 months (not Osama) have been the budget deficit. Make no mistake, the U.S debt is a serious global issue. While the risk of the U.S defaulting on its debt may be a bit farfetched, given the close linked global economy, it is crucial that they sort out their debt issue. As most economists will confirm the two ways to cut a deficit are either reduce spending or increase taxes. However, both options are politically risky for any American president. (There’s also the increased tax receipts/collections option as a result of economic growth but this is more long term in most cases and highly dependent on economic growth).

Continue reading

Daily Dozen: 07/12

- Imagine your job was to phone people to tell them they won the lottery [EAS]
Hey Côte d’Ivoire, look at Guinea! [BBC]
Can OCampo Be Stopped? [KenyanJurist]
Calestous Juma: From Village Boy to Harvard Don [HKS]
Michelle Obama Teaches Americans About Black Women [NewsWeek]
Move Over Barack Obama, China’s President is the Most Powerful Man in the World [Economist]
This WikiLeaks Julian Assange guy is literally a James Bond Villain [DailyMail]
2011 (Next) Year In Review [NYT]
2010 Kenya Bank Rankings [Bankelele]
Kenyans Want Raila to Apologise Over Gay-Bashing Remarks…and I want a Ducatti 1100 for Xmas [DN]
New ‘Sweet’ Service for Kenyans in the Diaspora [TechMtaa]
Your favourite campus blogger went to Coast [SavvyKenya]
A Regular Dose of the Funnies [DBPB]

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Daily Dozen: 2/04

The Passion of Kenya's Katiba Mpya..

- One Step Closer to A New Constitution [Daily Nation]
-President Kibaki to resign and call for fresh elections [Opalo]
-Zimbabwe Switches to Linden Dollars [APP]
-FIFA anthem move hits sour note [News24]
Knock, Knock! Who’s there? O’Campo! [AlJazeera]
-Africa’s Forever Wars [FP]
No law will stop people wanting to get high [TO]
-The 7 Most Motivational Quotes Ever Spoken [DLM]
-German Firm Wins Right to Make Beer Called ‘Fucking Hell’ [Spiegel]
-Chris Rock’s Controversial ‘Crackers’ Video [BVX]
-Lusty scientists create the perfect robotic woman [Youtube]
-10 words you need to stop misspelling [Oatmeal]

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