JUDICIAL ACTIVISM THE IMPEDIMENT TO TANGIBLE CIVIC REFORM IN KENYA: THE TYRANNY OF THE BENCH

Sagacity is a very rare quality among members of the species Homo Sapiens Sapiens. Yes, for fear of conjecture, I must affirm that man is the most intelligent of God’s creation doubtlessly bequeathed with the freedom of choice. It is for this very reason that Biblical King Solomon is regarded as the wisest and most insightful king to ever have treaded terra firma. Consequently, most iterations of the Bible almost certainly have 3 books that pay homage to his wisest quotes, sayings, idioms and fables. Two others chronicle his regime, but I digress. In invoking the fabled King Solomon into this discussion, I seek to regale you all with one of the instances of his regime that paid homage to his rarefied IQ. A story is told of an arbitration quandary that involved two women that had recently been party to the issue of newborn sons. The two were certainly friends who lived together at the juncture of partum. One night they both slept with their babies most assuredly after satiating their bundles of joy with much-valuable breastmilk for the night. The proceedings during the ungodly hours are hazy but what is clear is that when one woman woke up in the morning, she was in bed with a dead child. Justifiably mortified, the woman was ill at ease with the occurrence but raised little by way of alarm. As she sat aghast mourning her dead progeny in muted melancholy a cynical idea crossed her mind. Thinking that newborns are almost indistinguishable a few hours after birth, the cynical woman crept stealthily to her mate’s bedside, gently prised her ‘prize’ from her lethargic grasp replacing the dead baby beside the unassuming mother. I have never claimed to be a scholar on incendiary matters, but can inform you reliably that that house woke up to the smell of fire & brimstone! Unbeknownst to the uninitiated, a mother has tacit communication with her baby. When the chemistry suddenly disappears adjunct to visages that all of a sudden do not match what was there the previous night, sparks are almost certainly going to fly. I will pick up the tale as the two former chums make a beeline for the King’s palace in undisguisable conflict. The conundrum was recounted before the King as he stood up pacing pensively as he sought the best remedy to the situation. He suddenly pirouetted and took his seat while ordering that the baby be put in front of him. The edict was complied with. He asked one of the praetorian guards to bring him his sword and it was brought. He uttered that in the interest of justice, he felt it judicious to split the baby into two so that each woman would get her pound of flesh and the crisis would be diffused. He raised the sword skywards amid gasps of exasperation from the royal court who had hitherto thought of Solomon as a mild-mannered character. The real mother of that infant prostrated before the King in travail and supplication for the sparing of her baby’s life. Meanwhile, the instigator of the infantile rapine was quite satisfied with the horror show that would have ensured both parents got equal spoils from that court. It was then that the truth came to the fore as the King re-sheathed his sword and gingerly picked up the infant handing him over to the tearful and distraught entity who had been proven beyond the shadow of a doubt as the authentic mother. The malicious wench was ordered thrown out of the precincts of the palace with the full score of ignominy as the real mother glorified the Lord for the restitution of her rights to her child. As was then with royal pronouncements, there was no room for appeal.

Today Kenya finds herself in the unenviable position where we as a citizenry can no longer call unto the judiciousness of the great King of halcyon times but instead are shackled to the dysfunctional devices of artless arbiters. Since the handshake between President Uhuru Kenyatta & his core adversary; the former Premier, Rt. Hon. Raila A. Odinga, Kenya has had a dousing of political tensions with a clear roadmap to repair laid out. This Roadmap that is set out to be a charter for constitutional review is a 3-yr-old process termed the Building Bridges Initiative (BBI). Before moving too deep into our subject matter, we can all agree unanimously that a National Constitution is a living document that is amenable to reform and tightening of lacunae albeit with loopholes for potential abuse. For those who are new to my writing on the BBI, I have in the past waxed lyrical about the original aims of the process that inter alia entail:

1. Putting an end to the menace of Corruption.
2. Formulating and living by a National Ethos.
3. Enhancing Devolution.
4. Kicking Divisive Elections to the kibosh. We needn’t bleed for politicos to lead.
5. Mainstreaming the delivery of Safety & Security by the national apparatus charged with the same.
6. Popular Understanding that the dish of Rights must be eaten with the garnish of Responsibility.
7. Promoting Inclusivity.
8. Shared Prosperity.
9. An end to primitive Ethnic antagonism & barbaric competitions.

Pursuant to the initiative that was to ensure the aforementioned objectives become the tapestry of Kenyan political organization & governance, the day Thursday 13^th May 2021 may live in eternal infamy in the Kenyan sociopolitical psyche. This is the day when a hurriedly convened bench at the High Court division dealing with Constitution & Human Rights with the nefarious intention of not only indulging in what from the onset should have been deemed as frivolous litigation and a nihilistic fishing expedition merely to assuage the dastardly egos of some overenthusiastic legalistic junkies & busybodies but also the subjugation of the will of the majority of the people of Kenya. Ostensibly reading verbatim and robotically from a premeditated script, that bench went on to deliver a ruling that rendered the entire rigmarole of constitutional review as has currently been perambulated to be null and void! This was a 4-hour televised event that served more to cast a pall of darkness over the current situation more than remedy it. Among other things, the rendering of the full judgement as is currently within my purview stipulates:

1. The President has no Constitutional authority to initiate a process for the amendment of the constitution. Mr. Uhuru Kenyatta acted in contravention of Chapter 6, Article 73(1)(a)(i). Civil Court proceedings could potentially be undertaken against him in a personal capacity if he tries to execute this.
2. Though gazetted, the Steering Committee to a United Kenya Taskforce for the implementation of the Building Bridges Initiative is an illegal entity without the power to execute constitutional review in any form and shape.
3. The entire process of Constitutional review as performed by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce is rendered Unconstitutional, Null and Void.
4. The Constitution of Kenya Amendment Bill (CKAB), 2020 cannot be subjected to a National Plebiscite before a voter registration exercise by the Independent Electoral & Boundaries Commission (IEBC). Supplementary stipulates but equally valuable include Civic Education, Public participation, Collation of the views acquiesced, County Assembly debate & deliberations culminating in a referendum process.
5. IEBC hasn’t the requisite quorum under Chapter 5 as read with Chapter 8 of the 2^nd Schedule of the IEBC Act to engage in the activities that constitute its day-to-day tasks inclusive of verifying collected signatures in the CKAB, 2020 recommended under Article 257(4) of our Constitution in the process of review.
6. In the entire period of the CKAB, 2020 process, collection of endorsement signatures, there wasn’t legislation that supported the collection, presentation and verification of the same adjunct to a non-existent legal framework to govern the conduct of referenda.
7. County assemblies and Parliament cannot amend in any way or as part of their Constitutional entitlement consider the CKAB, 2020 launched through a popular initiative under Article 257 of the Constitution to change the contents of the Bill.
8. Predetermination of allotment and delimitation of the 70 proposed constituencies is declared unconstitutional for lack of public participation and a well-explained rationale.
9. Dereliction of setting distinct referendum questions for each article under review renders the process illegitimate.
10. A permanent injunction against the IEBC as currently constituted from initiating the use of Article 257, Subsection (4) & (5) in the bringing to fruition CKAB, 2020.

Prima facie, all these may sound and look logical as merely well-meaning words and phrases in run-of-the-mill legal parlance; however, the motive is nothing but sinister. My lack of jurisprudence notwithstanding, I term this ruling to be a bare-knuckled and unabashed grinding of the axe of political vendetta in an ongoing tempest between the two arms of Government, i.e. the Judiciary and Executive. The enlightened do not need binoculars to be privy to this scenario as tantamount to judicial abracadabra sprinkled with some gas-lighting of facts with half-truths, gossip, backbiting, slander, hearsay, innuendo unfortunately indulged by the Courts of Law. A clear conduit for the promotion of prejudice is clear for all to see today painted as judicial independence. Indeed in the Sunday Nation newspaper of the 16^th May 2021, The Governor of the County of Laikipia and a level-headed contributor to national discourse, H.E. Ndiritu Muriithi labeled whatever farce that found viewership on our national media on the evening of 13^th May as “A Season of High-Octane Politics draped in legal garb!” I do not fault him whatsoever in his assessment. There was plenty of song, dance and pageantry among the population demographic that were hitherto bitterly opposed to this initiative. Here legal practitioners, pseudo-intellectuals, conspiracy theorists, faux-hustlers, rabble-rousers, louts and touts found concord in dancing over the grave of an initiative that was meant to foment national unity and the improvement of the relations between our people in this heritage of splendour. Many members of the conscientious, level-headed and patriotic side of the divide, indeed even the author of this piece found themselves bemused by the shenanigans at play. I will admit that this report had one or two blemishes injurious to our sensibilities as a people. Nevertheless, I would be remiss in failing to admit to ignorance on why anybody would want to throw to the wood chipper an initiative that promises Shared Prosperity that has nary been a topic of discussion in our 58 years of nationhood. It sounds absolutely absurd to throw both the baby with the bathwater!

This Judgement’s most egregious foundational weakness of all is in its failure to respect Chapter 1, Article 1 of the same Constitution these judicial officers purport to defend that bequeaths Sovereignty upon the People of the Republic of Kenya. Worse of all is their want in comprehension over the basic requirements for Contesting the Presidency within our Jurisdiction as well articulated in Chapter 9, Article 137 of our pristine Civil Governance Charter. A man/woman eligible for the Presidency of Kenya should be a Citizen by Birth, not less a holder of a Kenyan National Identification Card also deemed apt for election as a Member of the National Assembly. It is this very stricture that predisposed and indeed qualified him for election as Head of our State in the first place. He is to all intents and purposes a national symbol of unity and an entity to whom sovereignty is sometimes delegated with regards to making important decisions on behalf of the rest of the nation. That is clearly why he’s our Head of State, Government and Commander-In-Chief of the armed forces. If the President were to be sued and he also decides to indulge in the claptrap of judicial dodgems currently at play, invoking Presidential immunity from prosecution, would we fault him? Moreover, back to my point of the President being an autochthonous son of this soil. Why shouldn’t he also be allowed to initiate the process of Constitutional review as an ordinary Kenyan in similar token to all Citizens of Kenya by birth? External to the garment of the Presidency, isn’t the man that the court haughtily referred to as one Mr. Uhuru Kenyatta, a Kenyan Citizen? He also has vested interests as a Kenyan of goodwill who will continue to live, work and do business here long after retirement from public office. Methinks that if he’s acting in good faith which is in not fiddling with term limits or creating a political position for himself after he dispenses with his mandate as President, then there is no problem in him too playing a pivotal role in leading the renaissance of our progressive 2010 Constitution which is indeed a living document. In the same vein, this ruling expects that somebody else other than the President should take the wheel with regards to Constitutional review. My question is: How many people have the academic development, intellectual wherewithal and enlightenment of a President for them to be allowed to initiate this Initiative? What capacity does the man on the street have to initiate Constitutional review? Needless to say, the last thing on any apolitical ordinary Joe’s itinerary is to go around the country collecting people’s views, organize the views into a report and ably hold public rallies with the aim of validating the same. Our highly educated and enlightened populace notwithstanding, ‘Wanjiku’ has no financial muscle to initiate and run the aforementioned processes. Secondly, people have other jobs to undertake with Kenya being an economy primarily driven by a labour force that lives from hand to mouth and hence cannot afford to trifle with the prospect of their families sleeping hungry while playing around during working hours! Kenyans are subsumed with basic survival. Thirdly, how many ordinary members of the citizenry have actually read and indeed do understand the strictures of this current constitution? I have met many people, some very good friends and ostensibly enlightened individuals who have never read a single chapter of our current constitution. Matter of factly, in 2010 they only voted for the referendum to consecrate the new constitution because their trusted political leaders and tribal kingpins convinced them that it is a meaningful document. So today more than a decade later how would you expect these same people to be the ones initiating a constitutional review process of a document they haven’t as much as perused through? It would be unrealistic. To all intents and purposes, those most consumed with the Constitution are mostly judicial appointees, state officers, political operators & legal scholars who directly earn a living in enforcing, interpreting and vociferating on the same and not the hoi-polloi.

I must also add that this current miscarriage of judicial discretion & impunity smirks of a similarly unconstitutional power grab, a bloodless putsch if I may against the duly-elected leader of our Republic. We all know the casus belli of all this was President Uhuru Kenyatta’s utterances over ‘revisitation’ of the judiciary after the ruling that nullified his electoral triumph in September 2017. Those sentiments have most certainly been overtaken by events like the Handshake and retirement of Chief Justice Maraga so I am flummoxed as to why these thin-skinned judicial functionaries still want to engage in monkey business over those diffused threats. Instructive to note is that this current quagmire is orchestrated by men/women who have never been and who perhaps will never be elected by anybody to any public seat hiding behind the shroud of judicial independence to give legal backing to the disenfranchisement of the views of the majority of Kenyan by terming the BBI report an unpopular initiative. This is impunity of the highest order that will indubitably put Kenya in trouble. A sensible society is one where human beings learn from the mistakes of the past and are indeed guided by the most enlightened never to repeat the same faux pas again. Allow me to indulge y’all with a short anecdote. In the year of our Lord 1857, a landmark ruling was made by the US Supreme Court that nearly jolted the fledgling independent nation to the core of its being. This was in the Dred Scott vs. Sandford case. For some context 4 years prior, litigation had been instituted where an enslaved man of negroid extraction, Mr. Dred Scott sued his then owner Mr. John Sandford for continuance to hold him in servitude despite the fact that he had been sold from the holdings of one Dr. John Emerson, A U.S Military surgeon whose estate was domiciled in the State of Missouri – a slaveholding domain to Mr. John Sanford residing formerly in the State of Illinois before moving to Wisconsin where slavery was outlawed and everyone lived free. When his owners got so fed up with his insubordination & freedom of conscience that they tried to sell him back to Missouri, Mr. Scott sought legal recourse to affirm his independence from servitude. His premise was that when taken into the “Free” U.S territory, he automatically stood liberated with the yoke of slavery eternally dispelled and was legally no longer in bondage. He first tried the Missouri state court which ruled he was still a slave under her jurisdiction. He doubtlessly appealed this farcical ruling to the US Federal Court which also ruled against him taking precedence from the Missouri State Law in the case. As a man that drew resilience in buckets, the onerous Mr. Dred Scott appealed to the US Supreme Court. After grueling arguments from the “learned friends”, indeed good men on both sides, the Supreme Court pronounced themselves on the matter. A decision was rendered on a 7 vs. 2 basis against Dred Scott. In an opinion written by then Chief Justice; Roger Taney, “Black folk are not included & were not intended to be included under the term ‘Citizen’ in the Constitution and can henceforth claim none of the Rights, Reliefs & Privileges the instrument ideally provides for and secures to the citizens of the United States of America.” An extended survey of the American state was given, anchored in local laws and ordinances that intended to erect a perpetually insurmountable barrier between the white race and those that sailed across the oceans into involuntary servitude. Whether Free or Enslaved, the court additionally argued that Mr. Scott, by the very colour of his skin, was neither considered a citizen of the United States nor any state accordingly, argue as much he may he could not establish the ‘diversity of citizenship’ under Article 3 of the U.S Constitution! The CJ additionally overruled the Missouri Compromise and even the Constitutionally-enshrined Power of the U.S Congress as limitations to slavery. The judgement was utterly outrageous and dehumanizing but no recourse was left for remedy. Today, historians have uncovered the murky truth about this entire fiasco which among other things involved a letter by newly-elected President James Buchanan; a white supremacist no less, who antecedent to the ruling wrote to his ‘good friend’ the US Supreme Court Associate Justice John Catron to speed up the ruling on the case. He was looking forward to a favourable verdict issued before his March 1857 inauguration date that would put the future of slavery beyond the realm of political debate. The Justice system’s willingness to dabble in the political whims of the day orchestrated by partisan forces is the spark that kindled the powder keg of the American Civil war. Even here in Kenya we have witnessed politically incensed conflict, most recently in 2008 that killed more than 1300 Kenyans in addition to displacing more than half-a-million people, some permanently disenfranchised from previously owned land. This was in part a consequence of apprehension that the incumbent-appointed Chief Justice of the day would have been an impartial adjudicator in the event of an election petition. Why is there judicial quiescence nay selective amnesia among members of the judiciary that seek to extinguish efforts to forestall Kenya’s regression back to its unsightly past? This verdict is in bad faith.

As members of a fraternity & sorority who take great pride in being referred to as ‘learned friends’, I would a priori expect them to be conversant with the fact that the pristine and progressive 2010 constitution was the product of a horse-trading process that was most assuredly not perfect. It is in the public domain that even those who had sentiments antithetic to the 2010-promulgated constitution only disagreed with less than 1/5 of the document. 80% was deemed a massive improvement on what we had inherited from the independence 1963 Constitution and the kerfuffle that introduced Section 2A of the Constitution that curtailed political freedom making Kenya a de jure one-party state in 1982 and a repeal of the same in 1991. The esteemed members of that 5-person bench, in paying homage to the similes of days bygone about being ‘Sober as a Judge’ must surely have within their purview insight that for items of the basic structure of the supreme law of our land inter alia Sovereignty of the People, Functions of the bicameral Parliament, Structure of devolution, Presidential term limits, independence of the Judiciary are facets that can only be amended via referendum. Not rocket science, I would presume! This brings us to a thoroughly distasteful attribute of the public umpire today termed as judicial activism. This is a situation where as in the anecdote above, some judges believe in making decisions external to the confines of law to satisfy their own whims and fancy, sometimes usurping functions that are the obligation of the Legislature and Executive, thereby enforcing whatever they want. In the words of Mr. Paul Mwangi who is a Joint Secretary of the BBI taskforce to a United Kenya, judicial activism is a word of courtesy for activities that amount to judges pursuing a political agenda in contravention to the provisions of their tenure, the solemn affirmation of impartiality, professional ethics and adherence to the rule of law. These judges are helped in no small part by congenial lawyers who help in achieving objectives tailored in partisanship to their impulses albeit caprice. The verdict of the 13^th May is a clear indication that the bench is hell-bent on creating the sort of jurisprudence that curtails the powers of all other stakeholders in the Constitutional review process to the point that judicial interpretation has to be sort for any minuscule changes to be made. Talk about a tin-pot dictatorship by a junta consisting members of the bench! It is anaemic of the court to additionally argue that the Steering Committee established on January 10^th 2020 and whose mandate was to run until 30^th June became unconstitutional in its working after its expiry date. This is the kind of inflexibility that exposes the mechanisms of the bench to scrutiny while showing them out as persons who pander to technicalities even in pivotal scenarios like the much-needed review of the supreme law of our republic. Where is the much-vaunted conceptual thinking? Reminiscent of the debate that the Lord Jesus Christ, the son of man had with the Pharisees about the day of the Sabbath. If on that day you took your flock of livestock out to pasture and drink in appreciation of the fact that they need food and water to survive, will you be acting in contravention to the rules of the Sabbath?

Similarly, who can ever lay claim to functional intellectual faculties and fail to appreciate the vagaries and complexities that were wrought by the Covid-19 global viral pandemic that ravaged our nation in the year 2020 and continues to date?

Do these judicial officers exist in some ivory tower outside Kenya where they are immune to the ignominious consequences that are a direct result of loopholes in our current constitutional dispensation? We cannot have a judiciary that plays the role of prefect in the Constitutional reevaluation in antipathy to the document’s entitlement to the sovereignty of the people of Kenya.

Unbeknownst to gatekeepers of impunity, the BBI is a popular initiative that did well to garner more than 3.4 million signatures against the high watermark of 1 million necessary for ascent that were delivered to the Anniversary Towers – which houses the IEBC by BBI Secretariat co-chair Hon. Dennis Waweru & Hon. Junet Mohamed. This is contrary to the honourable bench’s jaundiced supposition that President Kenyatta was the main initiator and catalyst of the current spate of Constitutional review. In fact, most of the validation rallies were shepherded by Rt. Hon. Raila Odinga flanked by local leaders of goodwill in a bipartisan caucus. This brings me to pry why the High Court bench that rendered this ruling refuses to accept an initiative that is well within the requisite number of signatures for its validation. Let’s not forget the symposiums for public participation. Conceptual thinking albeit creativity is definitely lacking among those Judges! Most iniquitous, they lack patriotism because while dabbling in this sort of activism, they forget a very important facet which is the best interest of the ‘mwananchi.’ They act as if they are aliens that are not part and parcel of the Kenyan society that have just landed here from Mars! I am at great pains to explain why these venerated Lord and Lady Justices seldom get involved when Kenya requires of them to push for people-centric initiatives like Civic Education or quite poignantly the feasibility study to show that it was a good idea to build the SGR Railway using Commercial loans from China. Local litigant-in-chief, Okiya Omtatah cannot always do it all by himself!

It is indeed in the public purview that some of these judges are not above reproach. The Benches at the High Court, Supreme Court and Court of Appeal have in the past had to defend their ranks against many accusations of impropriety most commonly corruption. Some had eaten their client’s payment settlements while working as advocates. Yet some more are accused of plagiarism while writing academic dissertations for their advanced University Degrees. Another was paid handsomely by a defendant to rule favourably in an election petition. A stone’s throw away is another accused of being a deadbeat dad with many more having a special retinue of bribe charges to get the culpable off the hook over criminal offences with others quite fond of issuing injunctions willy-nilly against the prosecution of the affluent. Do not even get me started on the Moi-era Chief Justice who was a pathological gambler, perpetually broke and ready to hawk favourable rulings for a pittance. The spores to propagate such malfeasance live on unencumbered. Yet these are the men and women who are expected to be altruistic enough to render an untainted adjudication on issues pertaining to Kenyans without their palms getting greased. Come on!

One part of this verdict that certainly got my goat is the one that rendered the President ‘sine immunitate’ loosely translating to without immunity hence amenable to prosecution, which even in my observance of basic empirical wisdom amounts to a hazardous path down the garden road. The legal nuisance that could potentially be occasioned by this status quo is quite clear for all to see. Our so-called ‘learned friends’ may ceaselessly be conscripted by those opposed to a President to not just maliciously sabotage his agenda but also unsettle his regime on the flimsiest of grounds. Such a perilous precedent exposes the occupant of the Presidential throne to interminable litigation on the pretext of public good but quintessentially as mischief that will impede service delivery by a Head of State. It gets murkier whence a President, pursuant to losing immunity will no longer be able to call upon his Chief Legal Advisor, the Attorney General forcing him to hire lawyers at exorbitant cost and being forced to sit through mostly frivolous civil litigation which is untoward.

Many are times when you will hear jurists and judicial officers rhapsodizing about judicial independence. Nevertheless, even a cursory reading of the Bill of Rights shows that whatever freedom is offered must most certainly be delimited by responsibility. Judges may expect deity-grade obeisance to their verdicts but this may prove a bridge too far when the quality of their rulings attenuates and seems to issue from an external source. Typically in court, plebeians respectfully address judges as ‘Your Honour’ while the Lawyers invoke ‘My Lord’ or ‘My Lady.’ Consequently, it appears bizarre when a judge latches onto some sort of tangent all the while referring to the President as Mr. So & So as if they are in some Lover’s tiff! The erudite are conversant with respect being reciprocal and so as you give so shall it be requited unto you. As well articulated by Jubilee Party Chairman; Hon. Raphael Tuju, “We should aim at interdependence as opposed to the ad nauseum exhortation of independence. We all exist interlinked to one another and just as the Judges execute their mandate, they also expect their police drivers & bodyguards attached to them to drive them home!” In closing sentiments, I feel it would be proper for Judges and magistrates to refrain from judicial activism. Creativity & common sense in the application of the Law is much welcome but starting to legislate from the bench is thoroughly frowned upon. You cannot be the Lawgiver, investigator, judge, jury and executioner all in one fell swoop. Leave politics to politicians.