Is judicial activism a dirty word? The media must tell it like it is

Is ‘judicial activism’ a dirty word? Is describing a judge as an activist intended to disparage, disrespect, abuse and belittle? The outburst following the High Court judgment on BBI leaves no doubt that the term was used pejoratively. But is it pejorative?

The ruling in David Ndii & others v Attorney-General & others on May 13 gave supporters of BBI an excuse to hurl insults at the judges. The Saturday Nation of May 15 and Sunday Nation of May 16 laid bare the anger and vitriol. Junet Mohamed, Denis Waweru, Abdikarim Osman Mohamed, Raphael Tuju and a host of other leaders accused the judges of practising judicial activism, which, in their mind, is a lawless and shameful act. 

Lawyer Paul Mwangi and columnist Peter Kagwanja, writing in the Sunday Nation, added weight to the denigration of the judges.

While it was right for the Nation to open its pages to opinions on the judgment — in search for the truth — it gave a preponderance of coverage to those who sprayed vitriol on the faces of the judges.

This was a form of bias, though unintended. Unfortunately, readers often absorb media content uncritically and such skewed coverage could shut out the truth.

What is the truth? We shall come to that later. For now, let us say it’s the duty of the Nation to be more discerning in what it publishes. The newspaper must not become, knowingly or unknowingly, the passive amplifier of someone else’s agenda. It must also distinguish between what contributes to the public discourse and mudslinging.

The NMG editorial policy advises its journalists to practise “issue-based journalism” as opposed to “excessive personality-based journalism” that tends to create the impression that the issues are driven by personal agenda and vendetta.

Truth about judicial activism

Judicial activism was not coined as a term of abuse. The person who introduced it didn’t use it pejoratively. Arthur Schlesinger, a historian and social critic, in an article in the January 1947 issue of Fortune, didn’t even define the term. Today, it’s recognised that judicial activism is the power of judicial review to strike down actions by the Executive that are not constitutional.

Neal Tate, a professor of political science and co-editor of The Global Expansion of Judicial Power, says judicial review is the power of the courts to examine the actions of the Legislative, Executive and administrative arms of the government and to determine whether such actions are consistent with the constitution. “Actions judged inconsistent are declared unconstitutional and, therefore, null and void,” he writes.

Those who used judicial activism as a dirty word did so because the judicial outcome is not in line with their interests. Judicial activism is a good thing in our political dispensation. Our Constitution allows it; in fact, it requires it. Article 259 states that the Constitution shall be interpreted in a manner that, among other things, promotes its purposes, values and principles, advances the rule of law, permits the development of the law and contributes to good governance. 

“Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking….” the article declares, making it plain that judicial activism is expected of judges.

In view of the importance of judicial activism in our circumstances, the Nation should have arrested the name-calling by providing context, in particular by pointing out that our Constitution sanctions and glorifies judicial activism. It was unbalanced reporting to allow BBI supporters, pundits and politicians to claim, without countering the claim, that there is a secret society of black-robed judges who ignore the Constitution to peddle their own personal and political views.

The Nation ought to have counter-balanced the claims with the truth about what judicial activism means in the context of our Constitution. It should have made it clear that judicial activism, in our circumstances, is not a dirty word. It should have told it like it is.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected]. Call or text 0721989264.