MACHEL WAIKENDA: Judicial activism crippling government

A dog used to run up quietly to the heels of everyone he met and to bite them without notice and so the owner put a bell on its neck. Thinking it a mark of distinction, the dog grew proud of his bell and went tinkling it all over the marketplace.

One day an old hound said to him: Why do you make such an exhibition of yourself? That bell that you carry is not any order of merit but a mark of disgrace, a public notice to all men to avoid you as an ill-mannered dog.”

Last week, the High Court gave President Uhuru Kenyatta 14 days to appoint the six judges who he left out from the list of 41 that he had received from the Judicial Service Commission.

The conversation has been clear that the President failed to appoint the six because there were integrity issues that the Judicial Service Commission had failed to address during the vetting.

And even up to now, the Judiciary has failed to address these concerns and is instead engaged in activism that keeps derailing the country’s progress.

The Judiciary is the only institution that can effectively fight for justice, and therefore any rot in must be cleaned to maintain its integrity.

It is critical to note that this ruling comes hot in heels of the judgment that declared Huduma Namba unconstitutional. The Judiciary didn’t even think of the benefits of having one source of truth on Kenyans before making that ruling.

The same thing happened with the Building Bridges Initiative. Instead of weighing the benefits of BBI, the courts decided to become populist and threw out what would have made the Kenyan Constitution better.

There are numerous other examples such as declaring the Nairobi Metropolitan Services an illegal entity yet it is the body that is transforming Nairobi in a way that the last two county governments couldn’t.

The courts also halted a mandatory levy the government was banking on to fundraise for the 500,000 houses plan, which is part of Big Four agenda.

The State law office is headed by a very capable team, led by Attorney General Kariuki Kihara who is former president of the Court of Appeal, and Solicitor General Kennedy Ogeto. Therefore competency is not a factor

I am a staunch supporter of Article 160 of the Constitution, detailing the independence of the Judiciary. The Chief Justice is one of my personal heroines, and I admire the steps she is taking to transform this very integral arm of government

That said, judicial activism must be vehemently condemned. Courts have a key role in safeguarding the rule of law but they must not overreach when making decisions that anchor public good.

Some judges are keen to cripple government operations and depict the President and his government as clueless, and one that does not respect rule of law. Yes, the Executive must follow the law in the execution of its mandate.

Yes, the right procedures must be followed. But those bestowed the honour of doing what’s right must not let their own personal views about politics and public policy guide their legal decisions and by extension, the future of our nation.

As the Head of State, the President has a huge role even in Parliament and this is why he can refuse to assent to Bills passed by MPs if they do not meet the threshold.

It is not by choice that the President has the last say in the appointment of judges, otherwise the Constitution would not give him that role. The courts should be asking the President about his reservations in order to ensure that the matter is dealt with.

Courts cannot force the President to appoint people whose integrity does not meet the threshold laid down by the Constitution.

The Judiciary has over the years sought to deflect the country from its failures, shifting the blame to the Executive and Legislature. Every other year, the Judiciary blames the two other arms for failures that it should deal with internally.