Judiciary holds the hopes of Kenyans
By James Aggrey Mwamu
It was gratifying to hear Chief Justice David Maraga assure Kenyans that the Judiciary would remain independent and deliver its verdict without fear or favour in the upcoming elections. Coming from the head of the Judiciary, such an assurance is not only timely but also important and appropriate.
He was echoing the words of wisdom of Chief Justice John Marshall during the debate on the Virginia Constitution in 1830, when he said that the Judicial Department comes home in its effects to every man’s fireside: it passes over his property, his reputation, his life, his all.
“Is it not, to the last degree important, that [a judge] should be rendered perfectly and completely independent, with nothing to influence or control [sic] him but God and his conscience?” Chief Justice Marshall was simply saying judges must not be under the influence of anything or anybody when making decisions that have far-reaching effects, and it is that independence that Kenyans expect to see in the Supreme Court.
Earlier, the Chief Justice’s office sponsored a miscellaneous (Election) Amendment Bill 2017, which had the effect of all election petitions ending at the Court of Appeal except for the presidential election petition.
These proposals were unconstitutional and the Chief Justice should withdraw them because they have the effect of curtailing access to justice. The Chief Justice’s concern was the many petitions that flooded the Court of Appeal during the tenure of former CJ Willy Mutunga.
The problem was a creation of the Supreme Court itself. During the last election petitions, there was discernible tension between the Court of Appeal and the Supreme Court.
In an earlier decision, the Supreme Court had laid down the extent of its jurisdiction but moved away from those decisions during the election petitions. Needless to say, it appeared then that the Supreme Court had turned itself into a High Court by adopting an hour-glass jurisdiction.
This transformation of the Supreme Court actually alarmed Dr Mutunga, who in his dissenting judgement in the case of The Speaker of the Senate & Another v Attorney General & Four Others (2013) eKLR, said the Supreme Court did not have a near-limitless and substantially elastic interpretative power that goes beyond the minds of the framers of the Constitution.
The difference between the High Court and the Supreme Court is that the High Court has unlimited original jurisdiction while the Supreme Court has unlimited appellate jurisdiction. This is all the Supreme Court is required to observe and the Chief Justice does not need to amend the law to prevent access to the Supreme Court.
That would be violating the Constitution, which gives the Supreme Court authority to entertain appeals dealing with the interpretation of the Constitution. Living document Our constitution is more than a mere legal document.
It is a living document, a reflection of the values and beliefs of all Kenyans. This document is the embodiment of the basic rights we believe are necessary to ensure the enjoyment of liberty, freedom, security and religious expression. Our constitution has not been, and will never be, perfect because it was drafted by men and women who suffer from human frailties, biases, and predilections.
As our history demonstrates, some of our constitutions have been unfair to the poor, members of the clergy, marginalised communities, women and people with disabilities. But even though our constitutions may be imperfect, we must always seek perfection in our continuous quest to protect the principles of freedom, liberty, justice and the rule of law.
As we approach the General Election, the baton will soon be passed on to the Judiciary and specifically to Maraga’s court, which must not let Kenyans down when it comes to the determination of matters that are within its jurisdiction.
Although Maraga will never be accorded an opportunity to swear in the President-elect at night like his predecessor did 10 years ago, he must still strive to make sure that the right thing is done in accordance with the Constitution.
Major opinions The CJ must use his powers vigorously and strategically. He must keep major opinions to himself so he can shape and hone his legacy befitting his responsibility to speak for the court in big cases.
Finally, Kenyans must give the Judiciary the support it needs to execute its mandate as required by the Law. We must give this co-operation knowing that we and our children are striving for a better tomorrow in a strong and united country under God.
We must always remember that judges do not ascend to the heavens at night and descend to the courts in the morning carrying Ten Commandments and the express authority to prophesy and declare “thus says the Lord”. Mr Mwamu is the former President of the East Africa Law Society and an Advocate of the High Court of Kenya.