Our 2010 Constitution is almost a teen; it suffers from acne, pimples and cysts. It is going through the hormonal changes of puberty.
Acne is a condition of the skin that shows up as different types of bumps. It occurs when hair follicles are clogged with dead skin cells and oil from the skin.
Twisted political intentions have generated tensions. This has accelerated our Constitution’s puberty.
Our Constitution is beautiful, but it is not perfect. Over the years, those imperfections become more prominent, noticeable and disturbing. Like a marriage with Lady Justice. It all looked rosy on August 27, 2010, but not so seven years down the line.
Constitutional amendments are normal and necessary. Our Constitution needs a little bit of plastic surgery and liposuction, to remove wrinkles and pimples here and there…but the worst and most unforgivable service we can do to the country is to damage judicial independence, to turn the Judiciary into a subservient, useless apparatus.
THE BAD OLD DAYS
Times were different in the old days: The government would not lose a case. In those days, State House could call a presidentially appointed and compliant Chief Justice and give him directions. The Chief Justice would then call the judge and give directions…jurisprudence never developed.
A predictable Judiciary is the worst nightmare of any governance system. Our Judiciary was once like that – that was the stone age of our justice system. This cannot happen in a democracy.
Justice is not obtained by force; it is not a duel where one person’s win is another’s death. Every lawyer has won and lost cases. And it is precisely the actual fear of losing that pushes the lawyer to do his or her best – to go the extra mile.
Every government will win and lose cases. This keeps the government on its toes. It helps the government to do it better, to go the extra mile, just like the lawyer. There is no more mediocre government than the one with a subservient Judiciary.
Certainly, we are going through some turmoil. Two uncomfortable elections, excessive litigation (I call it liti-mania) and abuse of the legal process, inflammatory statements against judges, gaps in the law, a bit of acne on the Constitution, the lack of prudence and courage by some judge have all generated worrying tensions.
It would be a terrible mistake to use these tensions for the wrong intentions. We hear some leaders say, “We must tame the Judiciary” or “The judiciary is abusing its independence”.
These comments are uncalled for and history has proven them futile and dangerous. Many of those crying for justice today were in opposition yesterday, and those rejoicing in the Judiciary’s free hand and independence of today were yesterday in power.
Justice is a sacred virtue; it is the oracle of democracy. Anything that undermines justice is a cancer to democracy. We cannot use the justice system as tissue paper to clean up a political mess.
RULE OF LAW AND JUDICIAL INDEPENDENCE
I was in Arusha last week, having been invited to speak at a small workshop of 20 people. It was a brainstorming session on the independence of the judiciary. Several chief justices and Supreme Court judges from several African countries had gathered with a few senior policymakers and professors. Prof Charles Fombad and Prof Kwame Frimpong brought in their wide and wise experience.
The mood was cheerful and the logistics, under the care of Peter Wendoh, ensured that the meeting flowed seamlessly. The opening remarks began at 8:50am with German perfection and accuracy. This forum gave me the opportunity to explain that the rule of law and judicial independence are deeply interrelated: they are like chicken and egg.
A US foundation, the World Justice Project, has created a rule of law index. In this index, “Kenya rose five positions for overall rule of law performance (from 100 in the 2016 WJP Rule of Law Index) to 95 out of 113 countries in the 2017-2018 edition.”
On analysing the breakdown of indicators, Kenya performed best on two areas: “Constraints on Government Powers” and “Open Government”, where we emerged as the third-best nation in Africa. It struck me that these two indicators were directly related to the independence of the Judiciary that for the past few weeks has been under attack.
The attacks are well organised and orchestrated. They are practical and theoretical. Practical because the fastest way to undermine judicial independence is by politicising the Judicial Service Commission (JSC).
The JSC has the sacred mission of vetting, choosing and nominating all judicial authorities. A wrong JSC will necessarily give us the wrong Judiciary.
The Constitution is clear. Article 166 (2)(c) says, “Each judge of a superior court shall be appointed from among persons who— …have a high moral character, integrity and impartiality.” A wrong JSC will not be able to find the right judges, but the compliant ones. This will undermine the future peace of today’s leaders.
VIRTUE AND VALUES
In a recent study, still under way, we have tried to collate an index to measure the independence of the judiciary. The parameters used are the number of decisions against the government in the last two years; appointment and tenure of judges; other competing courts; and existence of a judicial service commission and its peculiarities.
South Africa, Namibia, Botswana, Ghana and Kenya did quite well. The worst performers were Sierra Leone, Libya, Niger and Swaziland. By region, Southern Africa did best, followed by Eastern Africa and Western Africa. The worst-performing region was Northern Africa.
Now, more than ever, every judge is called upon to practise virtue and values. Courage, prudence, self-control, and a genuine desire to dispense justice. These are the only tools with which a judge can cure constitutional acne, leave a lasting and sustainable legacy and build a body of excellent jurisprudence. It seems ironic, but democracy’s sustainability depends on non-elected positions…democracy’s survival is in the hands of appointed judges.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi