On mega corruption, the Supreme Court may need to review its approach, widen its jurisdiction

Friday June 29 2018

By LUIS FRANCESCHI
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In these scandalous times, dirty linen is being washed in public by different factions of a de facto coalition government. We can expect more sweet, corny and oily scandals in the coming weeks.

The President does not seem to be ready to defend anyone in trouble and prefers to let justice follow its course. How will justice deal with this? How accountable are our magistrates and judges?

Not even the Chief Justice can answer this matter on their behalf. Each judge is an independent officer and nobody, not even the President or the Chief Justice, can issue directions on how to decide a case. In addition to that, each judge should be appointed in fulfilment of Article 166, 2 (c) of the Constitution, which states that “Each judge of a superior court shall be appointed from among persons who … have a high moral character, integrity and impartiality.”

MEGA SCANDALS ARE LIKE BIG KILLS

It is a matter of deep concern that mega corruption should be dealt with as a matter of urgency. We must put in place extraordinary means to respond to the extraordinary corruption taking place. Mega scandals cannot be resolved by magistrates or even individual judges without heavy institutional support. In traditional societies, big kills were always the work of a team. They would strategise, assign roles and go for the kill.

The big animals of sugar, maize, pipelines, NYS…are too big for one hunter. They need teamwork, courage and example. It is imperative that special jurisdiction be crafted and granted to a group of highly reputable judges. Men and women of legacy, who are freethinkers, independent, diverse and highly committed.

For this dream to become a reality, example must come from the top. Some have argued that the Supreme Court has not been exemplary in this matter. Their main argument is that the Court has been a historical-run-away from key responsibilities when determining its own jurisdiction.

One of my brilliant graduate assistants, Cecil Yongo, recently presented a paper on transformative constitutions at Harvard Law School. Cecil has been doing research for long and this is bearing fruit.

FINDINGS THAT RAISED EYEBROWS

Cecil argues that the Supreme Court of Kenya is known mostly for its decisions with regard to presidential election petitions. Every five years, the public trains its collective eye on the court, strained as it is to decide complex issues touching on such presidential elections within a limited time. On those days, the court works hard; it excels.

What the court does in the intervening period is the more mysterious matter. For instance, while it has made a number of decisions of a procedural nature (touching on requests for extension of time for reviews and stays of execution, for example), the Supreme Court made under six decisions that touch on substantive issues in 2018.

In his research, Cecil found that by contrast, the South African Constitutional Court – its peer – has made 18 decisions on substantive issues within the same period, and the Ugandan Supreme Court has made 26 substantive decisions, not to mention the US Supreme Court, which has made over 40 substantive decisions.

These statistics may look scandalous, as if our own court was lazy and lousy. However, when matters were analysed in greater depth, we discovered that as of May 2018, there were 89 matters pending determination before the Supreme Court, and that 37 of them were applications for certification, three were advisory opinions, and the remaining were petitions on constitutional grounds. Of all those petitions, less than five raised issues of a constitutional moment.

WHOSE FAULT IS IT?

The Supreme Court cannot surely be the one to blame; a dearth of serious cases is not a weakness on the part of the court and shifts the burden from the court to the legislators, lawyers and citizens as court users.

Article 163 of the Constitution gives the Supreme Court exclusive and original jurisdiction on matters resulting from disputes of presidential elections; of jurisdiction on matters concerning county governments, State organs or the national government; and of jurisdiction to hear appeals of rights with regards to matters involving constitutional interpretation – and whatever other matter the court certifies to be of public importance.

The same provision – in 163 (b) (ii) – states that appeals may also emanate from a court or tribunal prescribed by national legislation.

Any initial jurisdictional questions on presidential election petitions and advisory opinions are all fairly well settled by the Constitution and offer no space for flexibility unless the text itself is amended.

The remaining provisions on jurisdiction offer the Supreme Court an avenue to essentially decide which cases to take up and which to reject. When the Constitution states, for instance, that “matters of general public importance”, it gives the court a great deal of space to take up almost any case, but somebody needs to take these cases before the court. This poses a practical complication.

ARE WE READY TO BURN OUR FINGERS?

Very few lawyers are ready to burn their fingers in matters of public-interest litigation, and if they do, they do so half-heartedly; no wonder we end up in terrible disappointments.

Truth be told, the Supreme Court could have been a little more innovative, especially given how much hope the people had in it being a leader in societal transformation, but certainly the greater burden is to be borne by the petitioners and their lawyers, for the court is a passive recipient of any matter brought before it. If petitioners and lawyers do their job, we could blame the court for any poor decision.

Cecil notes that in some of the first cases that the court decided immediately after it was constituted (SK Macharia and Rai) it took the opportunity to strike down the then-Supreme Court Act as unconstitutional. The Act had expanded the court’s jurisdiction to, among others, matters that had been decided by the Court of Appeal in a demonstrably and starkly unfair manner prior to the promulgation of the Constitution.

WHO CAN DEAL WITH CORRUPTION?

It is important to understand that the Supreme Court does not have jurisdiction over mega corruption cases. The Chief Justice has repeatedly stated that when investigations and prosecutions are not properly conducted or vitiated in some manner (think of the NYS saga where the lead investigator is accused of being a business partner of one of the suspects), no conviction should be expected. If in addition to this, the judicial officer is corrupt then we are sunk.

The Judiciary must confront its own weaknesses head-on, but we should always remember that the courts are passive recipients of the excellent or mediocre work of lawyers, citizens, prosecutors and investigators, and judicial decisions should usually be proportionally direct to the quality of these actors’ work.

Cecil loves Karl Klare’s pioneering article on the way to build truly transformative constitutions. In it, Klare warned that “future generations will judge the Constitutional Court by the contribution it makes in achieving goals such as equality, social justice, human dignity and deepening the culture of multiracialism. How tightly the Court squares its arguments with textbook canons and maxims will be far less important at the end of the day.” The same advice could apply to our court.

Whatever the case, the Supreme Court’s intense work and innovative jurisprudence is the work of prudent, intelligent and innovative judges who build on the professionalism of petitioners, lawyers, investigators and so on. The court has the huge responsibility of incentivising all judicial officers to be proactive in the pursuit of justice.

Mega corruption is a complex beast. It requires a concerted effort from Parliament, the Executive and the Judiciary. As for the Judiciary, the Supreme Court may have to review its approach and seek to widen its jurisdiction on certain key issues…always with the mind that no big animal can be killed by a lone hunter. Team work is essential.

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