Judiciary key in protecting individual liberties
What you need to know:
We Kenyans must make up our mind as to which century we want to inhabit.
We cannot maintain our split allegiance to colonial values and mores while aspiring to a more progressive existence.
- The Judiciary must be peopled by judges who are to challenge the rest of us whenever we succumb to the temptation to implement our prejudices as if they were universal laws.
Over the past 10 years we have had great expectations of our Judiciary as it works to interpret and adjudicate the new constitution for us. While there have been relatively progressive voices among our judges working hard to protect the people from an overzealous executive arm of government and a greedy legislature, on the whole our judiciary has been regarded as having failed to thrive in the new constitutional dispensation.
'UNAFRICAN'
Often, at defining times in our history, our judges have often chosen the easy path of pleasing the one with the most power. This runs counter to the spirit of our constitution that places the Judiciary at the vanguard of the defence of our relatively progressive Bill of Rights. Many times instead of protecting the citizen from a rapacious government, the Judiciary has sided with government, entrenching a culture of impunity.
Two recent cases serve to illustrate our Judiciary’s split personality as far as enforcement of our constitutional rights is concerned.
The first case was an attempt to repeal an old colonial law that criminalises sexual contact between two men, or sex ‘against the order of nature’ between any two individuals, even in private settings. After listening to submissions from various parties, the court ruled that such behaviour is ‘unAfrican’ and allowing it would open the door to gay marriage, which is expressly outlawed in our Constitution. It was extremely difficult to follow the chain of reasoning that led to these conclusions, leaving room for plenty of speculation.
The second case involved the government decision to withdraw Ministry of Health guidelines on the care of women after abortion. These guidelines had been developed by experts in reproductive health with the participation of Kenyans interested in women’s health, and their publication provided an avenue to save the lives of the many young women at risk of death by unsafe abortion and risky pregnancies. After the withdrawal of these guidelines, a young lady met her death after a botched abortion.
EXTREME RIGHT
In this case the judges weighed all views carefully and arrived at the conclusion that withdrawing the guidelines was wrong since the decision hampered the ability of health workers to provide life-saving care for young women undergoing unsafe abortion. The judges even went further and held that it would be wrong to expect a woman to keep a pregnancy conceived after sexual assault, and went ahead to award reparations to the family of the deceased girl.
Of course they had to pay homage to the extreme right in Kenya’s social structure, and restate the constitutional provision that abortion is not allowed except under circumstances explicitly stated in the constitution. We have previously argued that this particular awkwardly worded Article in the Constitution actually means that induction of abortion is allowed under those circumstances, leaving the decision on its necessity to the appropriately trained health professional.
We Kenyans must make up our mind as to which century we want to inhabit. We cannot maintain our split allegiance to colonial values and mores while aspiring to a more progressive existence. If we want to live in a free and democratic society as envisaged in our progressive Constitution, the Judiciary must be peopled by judges who are willing to walk the talk and challenge the rest of us whenever we succumb to the temptation to implement our prejudices as if they were universal laws.
Lukoye Atwoli is Associate Professor of Psychiatry and Dean, Moi University School of Medicine; [email protected]
