Rule of law ensures political stability

We are lucky as a country – and may I say, as a Judiciary, too – that we have a progressive Constitution that should aid and enable institutional and individual conduct that advances rather than undermines the realisation of the rule of law. PHOTO | YASUYOSHI CHIBA | AFP

What you need to know:

  • Kenya needs to develop and nurture a consciousness that promotes and protects the rule of law.

  • We are lucky as a country – and may I say, as a Judiciary, too – that we have a progressive Constitution.

  • It is essential that independent institutions in Kenya play their constitutional role in nurturing the rule of law.

The rule of law is the oxygen of any constitutional democracy. It is also the fulcrum upon which successful economies turn and thrive.

Indeed, scholarly literature – whether in law, economics, philosophy, political science, or international relations – converges on one important thought: That the rule of law is a central factor in securing the political stability and economic development of any nation.

In fact, those who have studied international conflicts since 1882 have come to the empirical conclusion that no known two democracies have gone to war with each other.

This is partly because of the restraining and civilising effect of the rule of law, which democracies not only exhibit with vitality, but also cherish with glee.

Such is the primacy of the rule of law in our socio-economic and political development.

This is the reason that as a country, Kenya needs to develop and nurture a consciousness that promotes and protects the rule of law.

PROGRESSIVE CONSTITUTION

We are lucky as a country – and may I say, as a Judiciary, too – that we have a progressive Constitution that should aid and enable institutional and individual conduct that advances rather than undermines the realisation of the rule of law.

The Constitution is unambiguous on the subject.

The preamble recognises “aspirations of all Kenyans based on essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.

Article 10 (2) (a) further mentions the “rule of law” as part of the national values and principles of governance on which the republic is founded.

As jurists, you know that these are not merely decorative pronouncements; they sit at the heart of the country’s constitutional and democratic identity.

But again, as jurists, we all know that the textual provisions on the rule of law do not automatically translate into adherence or obedience.

The textual-cultural gap in implementing existing constitutions remains an endemic African governance problem – what Prof Walter Hastings Okoth –Ogendo once called the paradox of having constitutions without constitutionalism.

As jurists, and even for those of us leaders in government, we need to play a leading role in closing this gap so that our Constitution can find rootedness in our societies.

JUDICIARY

I hear far too often lately, that the Judiciary, in following the rule of law and due process, frustrates the country’s development agenda.

Nothing could be further from the truth.

We need to understand that the rule of law is not necessarily costless or convenient.

The wheels of justice turn slowly but turn they surely do. If government agencies and individuals did all that they intend to do in strict conformity with the law, there would be no need for anyone to approach the courts to intervene.

Studies around the world have also shown that democracies that have made the rule of law part of their national DNA have faster, consistent and more long-lasting economic growth than those that do not take it seriously.

INSTITUTIONS

It is essential that independent institutions in Kenya play their constitutional role in nurturing the rule of law.

I know that the country is in a difficult political and economic moment.

But it is in precisely such moments that independent institutions must exude their confidence, execute their mandates with vigour and professionalism, and give hope to the Kenyan people.

Independent institutions were created as a restraining and balancing force to the excesses of the political class. They were crafted for precisely moments such as these.

They, therefore, need to perform this function robustly for the people’s benefit.

Thus, when the Constitution is under threat, they must speak up; if the rule of law is under siege, they must be heard; if civil liberties and freedoms are constrained, they must act; if extrajudicial killings are being institutionalised, they must protest.

I am only acutely aware of the pivotal role the Judiciary, as an independent arm of government, is expected to play in advancing the Constitution and the rule of law.

As the Chief Justice, I want to give my commitment to the people that the Judiciary will remain steadfast in this.

It shall be a willing partner in the defence and promotion of individual rights and liberties.

It shall not be blind to human rights abuses because that would undermine the institution itself, our humanity and our Constitution.

Chief Justice Maraga made these remarks when he accepted the Jurist of the Year Award from the International Commission of Jurists (ICJ) Kenya Section on Monday.