Judicial Activism: An Unbearable Evil Or A Godsend?

Earlier this week, a group of lawyers including my good friend Christopher Kibe Mungai, were up in arms against what they termed— albeit in a thinly veiled way— excessive judicial activism. The lawyers—who also included Dr John Khaminwa, Jeniffer Shamallah and Charles Kanjama—came short of declaring that they had no confidence in the judiciary as presently composed and as presently predisposed to act.

But what exactly is Judicial Activism? Black’s Law Dictionary defined judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions…” The flipside of judicial activism is Judicial Restraint, which is defined as “the philosophy of judicial decision-making whereby judges base their decisions on the doctrine of ‘stare decisis’ (relying on precedents) to maintain the status quo...”

For many years, Kenyan Judiciary has operated under the principle of Judicial Restraint and that may explain why over time, Kenyans came to lose confidence in the ability of the judiciary to deliver justice more so in situations where the proverbial Wanjiku found herself pitted against the State.

With the appointment of Willy Mutunga as Chief Justice, a great deal has changed in the Judiciary. And more so with the judges being made to go through baptism by fire before being confirmed to their positions, the least you can expect from a judiciary that has undergone through such stringent cleansing is a judiciary whose raison d’être is no longer the preservation of status quo, but rather upholding the rule of law as it sees fit.

Of course when a judiciary that used to operate as a toothless bulldog suddenly bares its legal fangs and dares to bite, many who had become comfortable with the status quo become thoroughly uncomfortable. Never mind that some of the lawyers complaining that the judiciary has become “too activist” were the same lawyers who led a campaign for judicial reforms in years gone by.

I am talking about Kibe Mungai and Dr John Khaminwa, two lawyers who often bore the brunt of a judiciary that never rose above mediocrity during the Moi years. But of course times, people and interests change. The interests of these and other lawyers complaining about ‘judicial activism’ are not necessarily being best served by the judiciary as is; hence the conflict.

Their beef with the judiciary may appear to be a raft of apparently controversial judgments that some judges have handed down in recent times, but I have a feeling this issue runs much deeper than that. First there was the case of Mombasa Republican Council (MRC) and three High Court Judges—John Mwera, Mary Kasango and Francis Tuiyott—ruling that unbanned the hitherto outlawed group.

The ruling elicited howls of protest from national security officials and some politicians. But human rights activists saw the ruling as a well-deserved victory for marginalised people of the Coast Province. Personally I share the sentiments, fears and concerns of national security agencies regarding the ruling but with some reservations.

When the matter came up for hearing in Mombasa, the Government appeared to take matters lightly and operated on the assumption that the court will rule in favour of the State when it comes to matters touching on national security; after all, haven’t courts always ruled so?

Big mistake. The courts have changed and so should the Government. Instead of sending some ill-prepared State Counsels to represent the Government in the matter, the Government should have taken the matter seriously and invested in serious lawyers who were well prepared to prove that indeed MRC was a threat to national security.

Then came the ruling, which fixed General Election date to March next year. Again, the Government—or most specifically the political establishment— appears to have been caught flat-footed. Instead of the two principles—President Mwai Kibaki and Prime Minister Raila Odinga—leading from the front and providing some kind of guidance on the issue of General Elections date, they just laid back at best and at worst, took divergent positions.

What were courts supposed to do in a case where political leaders appear to abdicate their responsibilities? There was a vacuum and someone had to step in to fill it. But as earlier said, there is more than meets the eye in the crusade against ‘judicial activism’. Kibe Mungai may inadvertently have let the cat out of the bag when he told a forum at Panafric Hotel that he blames Justice Philip Waki for having opened the door that led to the suspected perpetrators of post election violence being tried at the Hague.

“The reason why we have the ICC cases in Kenya is because Waki, on the steps of Harambee House, handed the envelope with the names of suspects to Kofi Annan. If I was President Kibaki, I would have ordered the GSU to immediately arrest Waki for committing treason,” said Mungai. On that basis, it is clear what the real issues are here. They have nothing to do with delivery of justice (or lack thereof), but everything to with ICC and fear that the Judiciary—with its newfound freedom— is likely to be immune to political manipulations. That is the real issue.

Mwenda Njoka works for Zuku TV and is the founder of Africa Centre for Investigative Journalism.