The era of Kenya judicial activism is finally here with us


Kenyan courts have been in the news lately, but not for all the right reasons.  In a series of recent pronouncements, the courts have confirmed that the Judiciary is poised to be the single most powerful force in the shaping of our culture.  Consider this. The court overturned Governor Martin Wambora’s impeachment.

The court also nullified new transport regulations introduced by the Ministry of Transport to help curb our spiralling road carnage.  The courts further stopped the graduation of new police officers at a time when the country is facing runaway crime and terrorism.  In all these, the court has come out as if it was more concerned with demonstrating its independence and observing technicalities than protecting the public.

What else can be said when the courts stop ministries from making decisions aimed at saving lives?  It seems there is no day that passes without a startling judgment from the courts. As a result, the country looks chaotic, unruly and unstable, although not the kind of instability we have in certified failed states.  Our situation is that we no longer know who is in charge.

All we see is a free for all where everyone is pulling in different directions and working at cross purposes. The argument is that all the three branches of government are equal, but it does appear like this business of co-equal, collegiate institutions has gone overboard.  What is happening now is something that is unprecedented in the history of this country.

One is tempted to ask: What is going on? According to Elgeyo-Marakwet Senator Kipchumba Murkomen, the courts are engaged in what is called “judicial activism,” which, according to him, is happening at the expense of the rule of law. He told the Senate this week that “there is a trend of judicial activism crawling in the country in which there is abuse of matters of accountability and public interest.”

He argued further that the judiciary has resorted to intimidating other independent institutions instead of promoting good governance.  Of course there are many who are jubilant about the new-fangled freedom of the courts. There are those who will argue, like Justice Anthony Kennedy of the US Supreme court, that an activist judge is one who delivers a decision that you don’t like.

The fact of the matter is that our courts are changing.  For the better part of the Postcolony, the Judiciary was subservient to the executive branch. It was at the beck and call of dictatorship. What this meant is that justice belonged to the rich and powerful and the corrupt.  In 2010, we introduced a new Constitution, which  was, for all intents and purposes, a polemic against the past.

We insisted on governance structures that were autonomous in both theory and practice.    For the judiciary, we wanted a radically different institution from what we were used to. To make sure, we populated it with civil society types. For instance, at the Supreme Court, a final appellate court created by the new Constitution, we installed justices with heavy civil society connections, and only two of them, Justice PK Tonui and  Justice Mohamed Ibrahim, had prior experience as judges.

We wanted a clean slate, and we got it. What is happening now is the logical outcome of our collective decision to take the country down the path of liberal democracy.  The new energy we are witnessing from the courts can also be explained partly by the imperatives of geopolitics. All branches of government now want to showcase independence to satisfy our foreign masters who have already enthusiastically taken over local cases ostensibly because our courts were too beholden to the Executive.

Now, if they want to verify that our courts are independent from Parliament, we have the Wambora case to show them.  If they want demonstration that our courts can stand up against the Presidency and the powerful Internal Security Ministry, we can always show them the court order against police graduation. And if they want to see a working appellate process, you have several options here, including the digital migration case.

There is no aspect of independence that our courts can’t demonstrate. May be we can even produce one or two authentically gay people, and a few pretenders, for the gratification of Western homosexual buffs.  The independence of our courts is particularly good for the ICC process.

Although it is obviously too late for the repatriation of the ongoing ICC cases, seeing that western nations now have the leverage on our leaders that they have always craved, it is equally unlikely that the mass trials of the minnows who actually killed and maimed will be transferred to The Hague now that we can show that our Judiciary fears no one and is full of eccentric types beholden to nobody.

The rogue courts appear like our surest guarantee against the hostile takeover of whatever remains of our justice system by foreigners. Or perhaps they are the confirmation of the ultimate takeover of our independence if our judges have to subconsciously act out the will of the global powers in order to save us from being walloped by powerful global cops.

That is where judicial activism comes in. Justices will want to indulge in it to show their independent, liberal streak. Starting now, we are likely to see years of sustained, near unanimous pressure against authority and conservatism which tends to be largely associated with dictatorship in this country, not with law and order.  The issue of law and order is one that we take for granted in this country, having had a fairly trouble-free post-colonial history.

Only now, with crime and terrorism, is it becoming a national issue.   Chaos-free existence has meant that order and stability have come to be seen by some as the embodiments of totalitarianism. These manifestations of authoritarianism have to be assailed from all corners and driven out of town.  What the courts are doing should be seen in this context.

Call it throwing the baby out with the bathwater.  CJ Willy Mutunga probably sees his role as that of former US Chief Justice Earl Warren who transformed American courts by injecting an overdose of liberalism into the system.  It was during his tenure as Chief Justice between 1953 and 1969 that some of the most profound precedents in America were set and subsequently globalised to become the universal jurisprudence that they now are.

These included Brown vs Board of Education, which outlawed segregation in American schools, and New York Times vs Sullivan, which we in journalism are familiar with for how it expanded media freedom by requiring public officials to prove that adverse journalism affecting them was driven by actual malice – the so-called “New York malice.”

An important decision to also come out of the Warren court was Miranda vs Arizona, which established new rules for interrogating criminal suspects.  These rules have been popularised by TV crime series and movies where suspects are told that they have a right to remain silent.  Justice Warren was succeeded by, Warren E. Burger, whose court became even more liberal, handing down liberal decisions such as Roe vs Wade, which legalised abortion, and from which much inspiration is drawn by population control and pro-choice activists.

If the court continues on its current path, and if politics in this country become more issue-based, there is a high chance that the conduct of the courts could become an electoral issue in future – which would be an improvement over the issue of tribalism.  And the next Parliament might have to pay more attention to the ideology and philosophy of judges nominated at various levels of the court system.

There is likely to be more scrutiny for judges exercising more judicial restraint by not reading their own personal philosophies into the law, as well as those practising judicial activism by interpreting the laws to serve their personal view of what society needs.  Liberalism gone amok is sure to have one more unintended consequence: It will likely engender a fierce conservative critique of liberal interpretation of the law.

Unintended consequences  Some judges, scholars and lawyers with a more conservative outlook might invent an ideological countervail to the crusading and gallivanting liberalism. At least this was the course taken by some judges and scholars in the US after the liberalism of the Warren and Burger courts.

They came up with the concept of “Originalism” – the argument that interpretation of the law ought to be based on the original intention of the framers of the constitution.  Edwin Meese III, Ronald Reagan’s attorney-general, called for “jurisprudence of original intention.”   Since then, US Supreme Court has fallen firmly into the hands of conservative justices, as not enough justices have exited during Obama’s two-term presidency.

Our new Constitution, passed in a hurry by a nation exasperated by a 20-year campaign for a new constitution, was not keenly scrutinised for ambiguities and contradictions.  Indeed we were urged to ratify it, despite its shortcomings, as amendments, we were told, would surely follow.

It is obviously better than the constitution it replaced, but it is a goldmine for activist judges, not to mention that it effectively turns this country into Mary Ann Glendon’s  Nation Under Lawyers, a book that depicts the trigger-happy litigiousness of the law-dependent American society.

The writer is Associate Director, School  of Journalism and Mass Communication, University of Nairobi.

The People



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