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December 14, 2018

It's down with the judiciary in Kenya!

Supreme Court Judge Smokin Wanjala with Chief Justice Willy Mutunga.
Supreme Court Judge Smokin Wanjala with Chief Justice Willy Mutunga.

Elegyo Marakwet Senator Kipchuma Murkomen, formerly a law lecturer, says, “The judiciary is practising judicial activism and if we are not careful, this country can slide into anarchy”. Speaker of the National Assembly Muturi declares defiantly, “Nobody tells Parliament how to conduct its business and when to do it. This is exclusively the mandate of the Legislature”. Charles Nyachae, the normally sober chair of the Commission on the Implementation of the Constitution, lashes out at the Bench for activism. Even the President has weighed in, accusing the judiciary, in the presence of senior judges from the region, of frustrating the operations of the executive and legislature, against the constitution.

It may seem as if they were criticising the judiciary. Did they but know it, they were lauding the judiciary for strict adherence to the constitution. For the mandate of the judiciary under the constitution is precisely to be “activist”. Consider for example Article 22. It tells the people to flood the judiciary with complaints against state organs for breach of the constitution or indeed even the threat of breach (as also does Article 259). As if this were not enough, judges are instructed to adopt the interpretation that “most favours the enforcement of a right or fundamental freedom” (Art. 20) or “promotes its purposes, values and principles”, “advances the rule of law” and “contributes to good governance” (Art. 259) (for the handful of Kenyans who have not read the constitution, see Article 10 for those values and principles). And wait for this audacity of the constitution: it vests the courts recklessly with a number of remedies against state organs, including the dreaded injunction and conservatory order—which they are just not mature enough to handle.

Worse is to come. The constitution limits the powers of state organs. Parliament must protect the constitution and promote democratic governance (Art. 94(4)). The Senate must protect the interests of the county governments, not fight with their governors or MCAs (Art. 96). The President—as if he did not have enough to worry about—must obey and uphold the constitution, promote the unity of the country, ensure fair representation of all communities in public services, and protect human rights and freedoms, even if exercised by the wretched civil society (Art. 131(2)). State officers must demonstrate respect for the people, avoid corruption or other abuse of office, account to the people for their decisions and actions—rather, unkindly, prescribes that their responsibility is to serve the people and not rule them.

You may well wonder what next. Well, people can dismiss their MPs and MCAs. Even the President can be impeached. I ask, is there nothing sacred (but don’t worry, the power of impeachment is given to his friends). Even the independent commissions, of which there are many, must protect the sovereignty of the people, promote constitutionalism and promote democratic values (by which it does not mean that majority, often with an ethnic base must always prevail). Can you imagine how a state can govern uneducated and usually querulous people under these restrictions? Has the constitution no respect for colonial ways of governance (supposed to be our lasting legacy?).

Nor, to be fair, is the judiciary spared. The judiciary must ensure justice regardless of status, and protect and promote the purpose and principles of the constitution (Art. 159). Difficult tasks, given Kenya’s constitutional history. But let us face it. The judiciary gets off lightly—clearly the constitution has a soft corner for judges. The judges are appointed through an independent process and it is damn hard to get rid of them (not like the good old days, when Moi just had to ring the AG). They even devise their own budget—no wonder they can afford these big cars, and first class travel and first class allowance. And look at their arrogance—and deviousness, claiming to be the high priests of the constitution. With casuistry of which only lawyers are capable, they say they are the custodians of the constitution. And how? They say that the constitution is supreme law and no law, policy or act may violate it; that it “binds all persons and all state organs” and that “no person may claim or exercise state authority except as authorised under this constitution”.

Be it so, but that does not make judges the judge of other people’s conduct. We never criticise judges; why are they always criticising us—nay, declaring our conduct unconstitutional. The Supreme Court claims to have the last word on the interpretation of the constitution. Have they not heard of the separation of powers? And trotting out subversive ideas like the sovereignty of the people, when everyone knows that Parliament is the sovereign and every one must obey it. QED.

Let all the other state organs unite; you have nothing to lose but your sovereignty. We will show the hollowness of their claims that their intervention is necessary to keep other state institutions within their stipulated power, and thus preserve peace and tranquillity. They claim that without the judiciary, there would be chaos, as each institution challenges the authority of the others, the National Assembly against the Senate, senators against the governors, Parliament against the executive, governors and MCAs in constant battle against the governors (except when they are fighting among themselves). Who, they claim, will hold the peace between the centre and counties—as if we are children. And to crown it all, they claim to be protecting the people against us—us whom they elected only a few months ago! What audacity! I say, down with the judges—especially the so-called constitution division and the Supreme Court. After all, we nourish and control the loyal police and the brave soldiers. We have the guns and they have not (sorry, Hilaire Belloc). 


Yash Pal Ghai is a humble, former academic.

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