BBI: High Court ruling rekindles judicial activism debate

As the political consequences of last week’s judgment of the High Court on the push to amend the 2010 Constitution continues to reverberate across the country, it has once again rekindled debate about judicial activism.

In the ongoing debate, lawyer Paul Mwangi who is an adviser of ODM leader Raila Odinga has accused retired Chief Justice Willy Mutunga of entrenching activism – in this case, euphemism for judicial overreach to influence public policy and governance — in the Judiciary when he was its head.

“Mutunga the activist became Mutunga the Chief Justice. Did he pursue those activist agenda when he was the Chief Justice and to what effect on the independence of the judiciary? My answer is yes, and he left a Judiciary captured by the civil society,” Mr Mwangi told the Sunday Nation.

The judgment by Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka was a big blow to the BBI constitutional amendment push when they invalidated the Constitution of Kenya (Amendment) Bill 2020 for failing to follow the procedure. The court also issued a permanent injunction against the Independent Electoral and Boundaries Commission (IEBC) from undertaking processes to prepare for a referendum in respect to the Bill.

Mr Mwangi was a lawyer who defended the push to amend the Constitution through the Constitution of Kenya (Amendment) Bill 2020. He was also a joint secretary alongside Martin Kimani to the Building Bridges Initiative (BBI) task force as well as the steering committee.

In various interviews he has given since the May 13 judgment, Mr Mwangi has consistently accused the judges of pursuing a political agenda, not the law, by allegedly usurping the powers of Parliament or the Executive.

“Judicial activism has taken root in the Kenyan legal system. Judicial activism came in with the tenure of Chief Justice Mutunga. Its adherents had worked together to ensure his ascendancy to the bench, and a lot is said today how they destroyed every competitor to Mutunga during the Judicial Service Commission interviews and secured him as the sole viable person to sit as Kenya’s first Chief Justice under the Constitution 2010. But that is the story of another day,” Mr Mwangi wrote in the Sunday Nation last week.

“It is believed that Chief Justice Mutunga and a few judges formed a kind of secret society within the Judiciary that was sworn to directing social and political change in Kenya through their decisions. This cabal of judges is also believed to work together with like-minded lawyers in achieving these objectives.”

The reported judicial overreach, it is said, is meant to influence political change and place civil society activists in political positions.

They cite Dr Mutunga’s past writings, including in The Elephant in March 2020 to call for judges to “use the Constitution and law in moving society towards fundamental transformation.”

“They will do that by developing progressive jurisprudence out of the Constitution and the law, accepting that judicial officers do politics, and that their institution, the judiciary, is an institutional political actor,” Dr Mutunga wrote.

On his part, the former Chief Justice says he has no problem being called an activist, because unlike what critics want the public to believe, the word ‘activist’ is not a dirty word.

“The Constitution itself is activist because it calls for fundamental change in society. We call the constitution transformative. If that is so then it has to be activist,” he said.

“Mwangi himself is an activist because he is pushing the course of BBI. The best he could have said is that we are both activists. The difference is on the cause we are pursuing.” 

NARC Kenya Party Leader and former Minister of Justice Martha Karua, however, says the criticism levelled at the five High Court judges for allegedly engaging in judicial activism is a misplaced debate based on a misunderstanding of the Constitution.

“Judicial activism is anticipated and sanctioned by our Constitution vide Article 259 which provides for interpretation of the Constitution in a manner that among other things promotes its purposes; values and principles; permits the development of the law, according to the doctrine that the law is always speaking. So unlike in other jurisdictions, our constitution expects our judges to develop the law to capture the intention of its framers. The BBI judgment does that most eloquently and ought to be celebrated,” said Ms Karua.

It is a position she shares with Ndung’u Wainaina, the Executive Director of International Center for Policy and Conflict (ICPC), who accuses those making claims of judicial activism as just being bitter at the outcome of the petitions against the BBI. 

According to the president of the Law Society of Kenya (LSK) Nelson Havi, there is no judicial activism in so far as invalidating the BBI is concerned.

“Do judges become activists only when they rule against our clients? What I see are people who have no response to what the judges said in the judgment but to claim extraneous things like judicial activism,” said Mr Havi.

Joseph Simekha however opines that there are things that are worrying and upsetting in the BBI judgement, including stretching judicial reach too far.

“For example, how do you explain the judges commenting on and even making decisions on political processes that preceded the Constitutional Amendment initiative? A constitutional amendment initiative starts at the point when promoters hand over their general suggestion or Draft Bill with the requisite number of supporting signatures to the IEBC. Anything before that falls under political processes and whether they are good or bad, progressive or retrogressive, they should be assessed as political processes,” he said.

As the debate about judicial activism persisted, a group of 16 civil society groups issued a joint statement on May 20 defending Dr Mutunga and the Defenders’ Coalition from the attacks.

According to the group, Mr Mwangi’s attacks follow a well-beaten path by the Jubilee administration to suppress and systematically attack civil society organizations and other voices of dissent “with a view to undermining their legitimacy and efficacy around their advocacy on key human rights and governance issues.”

“More recently, the Defenders Coalition and Rtd Chief Justice Willy Mutunga were openly attacked by lawyer Paul Mwangi, on a leading national television channel. All Kenyans have a right as individual citizens or as citizen groups to go to court to seek enforcement of rights, defend the Constitution and to uphold Judicial Independence,” the group said in the statement.

The group called on Mr Mwangi to retract his statement and apologize to the Defenders Coalition and Dr Mutunga. “We also call on political class to exercise restraint and cease personalized attacks on activists, civil society and Kenyans of good will for exercising their constitutional rights.”

But Mr Mwangi told Sunday Nation that he will not apologise for anything he has said since the High Court judgement.

“How do people who claim to defend freedom of expression and who demand accountability demand I retract and apologise for my opinion that a former State Officer failed in public office? The most dangerous people are self-righteous activists when they yield political power. We saw how they turned out when they joined the NARC government. Even Pol Pot was a human rights activist,” he said.

Mr Havi has also called on Mr Mwangi to table any evidence to support his claims that Dr Mutunga is the one coordinating civil society opposition to the BBI.