Court in the Crossfire
Commonwealth observer mission to Kenya 2017, Commonwealth Secretariat, Creative Commons
Former Chief Justice Willy Mutunga writes about the role of an independent judiciary as the custodian of constitutional democracy in Kenya.
Africa’s judiciaries have a critical role to play in shaping our economic, social, cultural, spiritual, and democratic destiny as nations and as a continent. This is because an independent judiciary is essential for securing a stable and peaceful democracy that is characterised by the rule of law, respect for human rights, and the accountability of our political leaders to the people.
Yet it is for this very reason that courts find themselves caught in the political crossfire when democracy is under attack. As a former Chief Justice reflecting on the state of democracy in Africa, my mind turns to how the Kenyan judiciary has fared as the custodian of our progressive 2010 Constitution.
Courts as arbiters of electoral disputes
Given our history of election malpractice in Kenya, one of the most weighty responsibilities that the judiciary bears is to settle electoral disputes. Since the promulgation of the transformative Kenyan Constitution in 2010, all three presidential elections have been litigated at the Supreme Court.
This advent of judicial politics under transformative Constitutions as reflected in decisions on electoral politics is not unique to Kenya or indeed to Africa’s judiciaries. Although in 2017 the Supreme Court of Kenya became the first court on the continent to annul a presidential election, the Malawian courts followed suit in 2020 with a brave precedent of their own.
“Judiciaries the world over can no longer claim they do not do politics!”
Judiciaries across the continent are feeling the stress and strain of the burgeoning number of electoral petitions, and many courts around the world similarly find themselves drawn into electoral controversies. Indeed, it was within the space of a few days in early 2021 that both the United States Supreme Court and the Supreme Court of Ghana dismissed challenges based on allegations of ‘fraudulent’ and ‘stolen’ presidential elections. Judiciaries the world over can no longer claim they do not do politics!
When the integrity of electoral processes is thrown into question, the democratic aspirations of Kenyans depend on how well our courts discharge their constitutional duty to settle these disputes with courageous and conscientious fidelity to the law and to the cold, hard facts of the evidence.
Some people, particularly those in the political class, resent the involvement of the judiciary in electoral disputes, but courts should not shirk or shun this constitutional duty. However unenviable the task of settling electoral disputes may be, public confidence in their independent adjudication is vital for growing a stable and resilient democracy. This is particularly important as our politics are organised around societal divisions rather than ideas about issues critical to the people’s material needs. Such politics undermine the quest for such democracy.
Notwithstanding the constitutional mandate — and political necessity — that justifies the involvement of the judiciary in electoral disputes, there can be no doubt that this role places courts in the political firing line. By their very nature, electoral petitions are highly charged political contests.
This means that when courts settle electoral disputes, the outcomes are also used to settle political scores. And regardless of the jurisprudential merits of their decisions, courts are used as the scapegoat for the losing side and as a basis for glorifying the winning side. In processing three election petitions under the 2010 Constitution, for example, the Supreme Court of Kenya has suffered condemnation from both the opposition and the ruling regime. Moreover, these attacks on the judiciary are not confined to the political class. Too often, some members of the bar and the academy add their voices to the political cacophony that drowns out reasoned debate about electoral petitions.
There are valuable lessons to be learned as we take stock of our emerging electoral jurisprudence on the continent. Most fundamentally, if courts are to serve as credible arbiters of electoral disputes, we need to secure the independence and integrity of judges who, showing courage and fidelity to their oath of office, will not waver under partisan pressures.
But more is needed — a professional, knowledgeable and ethical bar, academy, and an informed citizenry that can engage in critical but tolerant debate about judicial decision-making. Critically, this is how we are going to build a progressive and transformative Pan-African jurisprudence for our people.
Judges as activists for transformative constitutionalism
Yet democracy is not just about elections. The stability and quality of our democracy also depend on our purposeful pursuit of the vision that the Kenyan people set their sights on through the 2010 Constitution. This is an ambitious vision that seeks to restore public confidence in our country’s institutions and demands a new leadership and a new citizenship. It is also a progressive vision that places the realisation of the whole gamut of political, civil, economic, social and cultural rights at its core.
The 2010 Constitution is thus proactively positioned as an instrument for social transformation in Kenya. As the custodian of this transformative constitutional vision, the judiciary must safeguard the structural integrity and diligent implementation of the 2010 Constitution on behalf of the Kenyan people.
This holds significant implications for the judicial role in our democracy. It means that judges must be faithful to the transformative imperative of the Constitution rather than preserve the status quo. This will inevitably run counter to the interests of the ruling elite who have captured political and economic power at the expense of our democratic aspirations as a nation.
Yet as I have often said when judges are pejoratively called ‘activist’ by those in the political class, it is the Constitution that is activist due to its transformative impulse. Judges cannot remain apathetic or idle about the constitutional imperatives for change — they must be activists for transformative constitutionalism.
The judiciary must stand its ground when attempts are made to subvert the Constitution or thwart its transformative imperatives. This includes misguided attempts to amend the basic structure of our Constitution without the authority of the sovereign power of the people. Our constitutional architecture is sound — our problems do not lie in the way that power is structured under the 2010 Constitution, but in how that power is being exercised by our political leaders. It is the role of the judiciary to scrutinise exercises of public power to ensure they are faithful to the Constitution and its progressive impulse.
“We need to recast public discourse to appreciate how judicial independence, which requires fidelity to the Constitution rather than partisan interests, is the lifeblood that sustains our democracy.”
A key challenge, however, is that judicial decisions are viewed through the lens of our divisive politics and so, as with our electoral jurisprudence, courts come under fire in ways that distort and distract from constructive debate. We need to recast public discourse to appreciate how judicial independence, which requires fidelity to the Constitution rather than partisan interests, is the lifeblood that sustains our democracy.
The judiciary’s role as the custodian of our constitutional democracy can be a lonely task. It requires great integrity to apply the Constitution without fear, favour or prejudice in the face of such relentless attacks. Caught in the political crossfire, some judges are fighting for their independence while others appear content to be mere appendages of the executive. It is thus important to recognise that the struggle for judicial independence in Kenya remains ongoing and it is also a struggle for unity within the judiciary.
Strengthening the resolve and resilience of judges to withstand partisan pressures is thus key to achieving a fully transformed judiciary that will give effect to the transformative ambitions of our constitutional democracy.
