The Kenyan Judiciary Should Not Be Apologetic – Justice Odunga

I first want to thank the International Commission of Jurists, Kenya Chapter, for conferring this honour upon me. It is an honour I do not take as a personal contribution, but as a collective contribution of the Judiciary of Kenya to the advancement of the Rule of Law.

Since the promulgation of the Constitution of Kenya, 2010, several judicial officers have borne the brunt of other arms of Government due to judicial pronouncements arising from the decisions regarding the interpretation and the application of the Constitution.

In my respectful view, a great deal of these criticisms arise from the fact that not all the three arms of Government have internalised the letter and the spirit of the current Constitution, and in particular Articles 1(1), 2(1) and (2) of the Constitution. Article 1(1) provides: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”.

According to Article 1(3), this power is delegated to Parliament, the Executive and the Judiciary. Article 2(1) and (2) provide, “This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government” and “No person may claim or exercise State authority except as authorised under this Constitution.”

What these three provisions mean is that power belongs to the people and all the three arms of the Government only exercise delegated authority. It would follow that any one of those arms that purports to exercise its powers in a manner inimical to the interests of the people of the Republic of Kenya is actually doing so against the letter and the spirit of the Constitution, and ought to be stripped of those powers – Article 1(4) provides, “…act or omission in contravention of this Constitution is invalid”.

Whereas, under Article 3(1) of the Constitution, every person has an obligation to respect, uphold and defend the Constitution, pursuant to Article 165(3) (d) of the Constitution, the arm that is constitutionally mandated with the task of deciding whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution is the High Court. To my mind, courts are the best suited institutions to deal with such matters since they do not owe their allegiance to partisan political interests but to the Constitution – since we are a constitutional democracy. Professor Sir William Wade, in his authoritative work, ‘Administrative Law’, 8th Edition, at page 708, properly captures the justification of the Judiciary

to arbitrate in such matters as opposed to elected representatives:
“Parliament is mostly concerned with short term considerations and is strangely indifferent to the paradox of enacting law and then preventing courts from enforcing it. The Judges, with their eye on the long term and the rule of law, have made it their business to preserve a deeper constitutional logic, based on their repugnance to allowing any subordinate authority to obtain uncontrollable power.”

However, the constitutional check on government actions is not the exclusive judicial domain of the High Court. It behoves all of us to ensure that no organ accumulates unto itself absolute power and authority over the people.

In my understanding, the current constitutional dispensation decrees that all actions of any state organ or any person must have a constitutional foundation. In other words, the supremacy of any other organ or person is antithesis to the aspirations of Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law as the preamble to our Constitution provides. This was the position in ‘Speaker of National Assembly vs. De Lille MP & Another 297/98 (1999) (ZASCA 50)’, where the Court rendered itself as follows in regard to the constitution:

“It is Supreme – not Parliament. It is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship and no official, however efficient or well-meaning, can make any law or perform any act which is not sanctioned by the Constitution. Section 2 of the Constitution expressly provides that law or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled. It follows that any citizen adversely affected by any decree, order or action of any official or body, which is not properly authorised by the Constitution is entitled to the protection of the Courts. No parliament, no official and no institution is immune from judicial scrutiny in such circumstances.”

To therefore purport to exercise a power outside the constitutional boundaries ought to be condemned by the Courts in the strongest terms possible and the failure to do so would be an indictment on the judiciary. Such judicial system shall have committed a dereliction of its mandate, which is to uphold the aspirations of the people of Kenya, as they gave this unto ourselves and to their future generations when they enacted the Constitution. It is in this spirit that I understand the holding in ‘Masalu and Others vs. Attorney General [2005] 2 EA 165’ that:

“A Judge has to pass between the Government and the man whom the Government is prosecuting; between the most powerful individual in the community and the poorest and the most unpopular…The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent Judiciary.”

To the foregoing, I would add a ‘timid and spineless judiciary’. As Lord Atkin stated in ‘Liverside vs. Anderson [1942] AC 206’ at 244:

“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified in law.”

In my view, it is the performance by the Courts of their constitutional duties and mandate that brings them into conflict with the other arms of government, which still believes in either the supremacy of the Legislature or the Executive under the guise of the doctrine of separation of powers. This doctrine is clearly a noble one, but is not a panacea for operating outside the Constitution and the Rule of Law by any State organ or State officer. As was appreciated by Theodore Roosevelt, the 26th President of the United States of America, “No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’.

Lord Denning’s statement in ‘Gouriet vs. Union of Post Office Workers and Others (1977) CA’ summarises it when he affirmed, “Be you ever so high, the law is above you.”

As long as we adhere to these principles the so called encroachment by the Judiciary onto the stratosphere of the other two arms of the government will be a mirage. In other words it will only exist on the minds of persons who see evil wherever they go.

In summary, the culprit is not the Judiciary. The “culprit”, if one deems that there is one, is the Constitution and, by extension, the people of Kenya. As I have said above, if one feels that the people of the Republic of Kenya are the culprits, the only option one has is to vacate public office – held in trust of the people.

It is, however, appreciated that between the three State organs, the judiciary is the weakest in terms of what I would call “muscle power”. On that note, I find it appropriate to quote the following words by Kriegler, J in ‘S vs. Mamobolo’ [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (para16):

“In our constitutional order the Judiciary is an independent pillar of State, constitutionally mandated to exercise the judicial authority of the State fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of State; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the Judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of State and, ultimately, as the watchdog over the Constitution and its Bill of Rights – even against the State.”

Similarly, Mahomed CJ in ‘The Role of the Judiciary in a Constitutional State – address at the First Orientation Course for New Judges’ (1998) 115 SALJ 111 at 112, said:

“…Unlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship. Its ultimate power must, therefore, rest on the esteem with which the Judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity.”

In my view, the judiciary ought not to be apologetic for undertaking its constitutional mandate. This does not mean that Judges are infallible. In fact, it is out of the recognition of the fallibility of the Judges that we have provisions for appeal. Instead of terming Judges “cartels”, “opposition judges” and “activist”, the other arms of the government ought to carry out an audit of the legislation and policies in place in order to determine their constitutionality and validity, because if these laws and policies are contrary to the provisions of the Bill of Rights or other parts of the Constitution, the courts are obliged to declare them and their implementation as invalid, null and void. While reasoned criticisms of the decisions of the Courts are welcome and are indeed integral to our functioning as a constitutional democracy, they must be well-informed, rational and grounded on the law.
What then is our role in this dispensation?

Our role is clearly captured in Article 3(1) of the Constitution and that is to ‘respect, uphold and defend the Constitution’. The generation before us has bequeathed to us a beautiful Constitution. That bequest did not come on a silver platter. It was achieved at the altar of great sacrifice, including loss of lives, limbs and liberties. It is our duty to consolidate the gains made so far for ourselves and for the future generations. If we don’t, we shall go into the annals of the history of this nation as a generation that betrayed the cause of its forebears.

As I rest my case, I revisit the question I posed at the beginning: “Are the Courts the Culprit?” 

– Justice Odunga is the Presiding Judge, Machakos. This speech was delivered after receiving the ICJ Jurist of the Year Award at Serena Hotel 2018.