The Judiciary did not overturn the will of the majority

Friday September 22 2017

By LUIS FRANCESCHI
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Regardless of our personal political leanings, we have reasons to rejoice when we look objectively at what has been happening in Kenya’s institutions for the past five weeks.  

Uganda is sliding back into a well-dressed tyranny. Tyrannies always degenerate and irremediably wear away the rule of law.

Tanzania is also falling into a similar trap. Dr John Magufuli, whose good intentions in sanitising a deeply corrupt system I do not dispute, has too often discarded the legal and administrative way in his dealings with both public and private sector.

His quick, no-nonsense and popularly acclaimed approach, if unrestrained by law, will quickly turn against him.

Rwanda, South Sudan and Burundi are wrestling with deep-seated historical challenges. They are grappling not only with democracy, but with the type of democracy they may or may not want.

"Write about the judgement! Write about the judgement!"

I have received constant requests for the past 24 hours. I was tempted, and paraphrasing Oscar Wilde, “I can resist everything except temptation.”

This one time, I resisted. It would be unfair to pretend to analyse in depth such a long and far reaching decision. The majority decision squeezed all the juice out of Articles 81 and 86 of the Constitution, and Section 83 of the Elections Act.

Justice Ojwang’s majestic dissenting opinion requires serious thought and legal analysis.  I have not dared to look at Njoki’s Ndungu’s even longer thesis. A fair exegesis would take at least a few weeks to prepare.

The Supreme Court’s decision is not a judicial coup; it is not the product of the madness of some judges who do not care about the economy or our country’s financial growth; it is not a tantrum or a vendetta; it is not the result of bribes, insanity or judicial stupidity.

Nobody, not even Nasa and much less Jubilee, could have predicted the outcome, but the Supreme Court decision is simply the outcome of a system we massively voted for in 2010.

We voted ‘yes’ because we wanted a real democracy, and a fair and independent judiciary is an essential part of it. We are witnessing the results of an independent judiciary, which is a pre-requisite for the rule of law and democratic sustainability.

Lee and Campbell define judicial independence as the principle that focuses on

the creation of an environment in which the judiciary can perform its judicial function as the third branch of government without being subject to any form of duress, pressure or influence from any persons or other institutions, in the particular the other two branches of government. 

We have given the Judiciary great power. They did not overturn the will of the majority, but told us that unless elections are properly run we cannot clearly know what the will of the majority is. That is the crux of the matter.

It may be annoying to have to vote twice, and it is even worse for our leaders to be in suspense for so long. But this is what we voted for in 2010. 

Perhaps some of our leaders had not read the Constitution properly, but this independent judiciary is exactly what they supported, praised, venerated and told us to vote for in 2010.

This independent judiciary, with Judges like Chief Justice Maraga, and Justice Njoki Ndung’u,  Justice Ojwang and Justice Lenaola, is exactly what will safeguard our democracy, the respect and sacredness of every Kenyan’s vote, whether we like it or not, and whether sometimes it may fail.

After all, the nature of the judicial function is such that one party will always feel aggrieved.

TEMPTATION TO AVENGE

Benjamin Cardozo, in one of his best writings, titled The Nature of the Judicial Process, grapples with the questions judges should ask themselves at every step of their decisions:

What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions, do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some … consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the cauldron of the courts, all these ingredients enter in varying proportions.

Cardozo is putting across one very delicate aspect of our judicial function: how decisions are made, what informs the judge, how far can he or she reach and why.

In today’s world, we readily believe blindly in tweets, social media rumours and dubious videos and photos. We believe in politicians who preach water in the morning and drink wine in the evening.

In today’s world, we have a conspiracy theory behind any judicial decision. We seem reluctant to believe that there are still men and women of honour and conscience who can base their decisions on the tenets of justice and fairness, without fear or favour.

It may be annoying today…but today’s pain is tomorrow’s gain. This is the great responsibility of any judge. This is also why we should accept their decisions and respect their integrity.   

Independence of the Judiciary is founded on four key tenets. First, the appointment, tenure and remuneration of judicial officers should be secured from the influence of high and low stakeholders.

Second is operational independence. Their organisational structure and finances should be shielded from interference. The Executive and the Legislature will always harbour the temptation to avenge what they may perceive as lack of compliance, yet that is what the Judiciary is designed for.

PERSONAL INDEPENDENCE

Third, independence of decision-making power; this is the scary power Cardozo refers to above. Fourth, personal independence. Each judge has a right to have his or her own opinion without fearing the consequences. In this case, choices have no consequences, and this is partly why dissenting votes are allowed and public.

In 2010, we massively voted for such a Judiciary. Articles 160 and 172 are extremely clear on this. In 2013 we praised it. In 2015, after the Wambora decision, we ‘punished it’ and the legislature slashed 500 million shillings from the Judiciary’s budget “to teach them a lesson”, several MPs declared.

In 2017 we condemn it. What has happened?

Those who are now on the ‘winning’ side should not forget that one day they will be on the other side. Those now claiming fault and attacking the judges, may one day need them for their own protection, and even to safeguard their lives.

A good judge has no enemies and if anyone should behave and speak like an enemy, the judge should follow Oscar Wilde’s advice, “Always forgive your enemies - nothing annoys them so much.”

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi