A powerful Judiciary is the logical consequence of a supreme Constitution

The point of contention between the two arms of government - the president’s role in appointment of these judges - is not one to be dismissed lightly.

Last week, we explained that the reforms brought about by the new Constitution whittled down the Executive’s power in the selection, appointment, and the security of tenure of judges. The Constitution also demarcated stringent rules on the Judiciary’s funding and operations for the purpose of protecting and preserving judicial independence.

We concluded that we would be compromising the Judiciary’s institutional integrity by merely assuming that the president can hold sway over the Judiciary Service Commission’s (JSC) recommendations. Even though the Executive’s claims that some of the judges are not morally incorruptible as demanded by article 166(2) (c), the Constitution does not allow the process to be influenced in such a manner.

Constitutionalism and institutions

The legitimacy of government action is determined by evaluating whether the fundamental law (both the spirit and the letter) allows the government to exercise a specific power, for a definite purpose and within precise limits. Anything outside this is a legal ‘sin’, arbitrariness or, better put, a step closer to anarchy.

This means that it is in the nature of the Constitution to limit both government action and inaction. This is why, we could say that governments commit ‘sins’ by omission or commission.

One of the greatest challenges to the African state according to the late Prof Okoth Ogendo, was that Africans had constitutions but they lacked constitutionalism, an appreciation and adherence to the doctrine of limitation of government power.

In Kenya, for instance, there were 10 amendments to the Constitution between 1964 and 1968. This gave rise to a situation where those in government had no qualms quickly amending the Constitution to expand their powers by removing all obstructing limitations.

Governments notoriously abridged human rights and consolidated authoritarian power. In doing so, they egregiously weakened democratic institutions like the independent judiciary as discussed in the previous article.

To repair this historical aberration, the framers of the new Constitution saw it fit to subjugate all power, including parliamentary power, to the requirements of the Constitution. This is the explanation behind article 2, which states that the Constitution is the supreme law binding all persons and all State organs; no person may claim or exercise State authority except as authorised under the Constitution. To protect such principles, the Constitutions goes further to prevent any frivolous amendments on key constitutional rights, procedures and structures.

Within the structure of the 2010 Constitution were encoded the principles that define constitutionalism: Separation of powers, sovereignty of the people, independence of the judiciary, a bill of rights, etc.

An elevated Judiciary is the logical consequence of a supreme Constitution. Anyone who wields power, does so subject to the Judiciary’s constitutional mandate to define the contours of that power and the legitimacy of any action in relation to its exercise.  The Judiciary’s role in other words is to draw the lines in relation to the exercise of power and to call out when those lines are crossed.

Before 2010, the Executive had learnt to control Parliament and in so doing, wielded immeasurable power and influence. The new Constitution constrained this and empowered an almost impotent Judiciary to oversee the principles of constitutionalism in a rowdy Executive. It would be naive to pretend that the Executive would not be tempted to challenge this new order.

The Executive and the Constitution

Figure 1

To illustrate the tension between the Constitution and the Executive, the graph above from V-Dem v2exrescon demonstrates Kenyan Executive’s respect for its constitution throughout history. The scale ranges from -2 to 4.

Kenya’s performance is dismal, averaging below zero for most of its history. The Executive has had free reign for most part. The graph below narrows down on the changes in the Executive’s respect, which was highest between 2014 and 2016, and then started deteriorating since 2017.

Figure 2

Kenya’s Constitution was lauded as one of the most progressive in the world. Regrettably, it has failed to constrain a historically errant Executive, in a country with high levels of impunity and low desires for compliance.

Figures 3 and 4 below plots the government’s compliance with important decisions that it disagrees with. 

Figure 3 

 Figure 4 

The appointment of judges is more important than it seems. It is not just a matter of disagreement; it touches the legal chord that will define tomorrow’s judicial music. If the Chief Justice yields to pressure, there will be a rapid regression. 

The trend is worrying. It is not just the 41 judges. It is also the execution of judicial decisions, national and international ones such as the Ogiek’s ruling by the African Court, as well as the 18-months delay in appointing the Auditor General, which created a paralysis at the Kenya National Audit Office as none of Edward Ouko’s six deputies had a constitutional mandate to sign off audit reports for tabling in Parliament. This delay led to the failure of State institutions in publishing their audited financial results for 2018/2019, including Central Bank and KenGen, which did not declare dividends. 

The Executive is sending the wrong signals to the country. This will be emulated by county governments, local authorities and then people. Unfortunately, our wonderful Constitution remains a hollow document, which as history has taught us, can easily be rendered useless in our long journey to freedom.  

The Judiciary is not perfect. Far from it. But like it or not, it holds the key to constitutionalism. If we throw away this key, anarchy will consume us like a cancer, and today’s political gain will be tomorrow’s social pain. The gains we have had since 2010 will turn to pains. This will not be noticeable now, but may God help us in 2022.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:

• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London