Making A Case for Judicial Hegemony.
Author: R. Kamundia Gitahi.
Introduction.
In her seminar paper titled The Immediate Realization of Women and Children’s Rights: Lessons from the Kenyan Case of C.K & 11 Others V Commissioner of Police/Inspector General of Police & 2 Others Petition No. 8 of 2012, Kenya’s former Deputy Chief Justice Kalpana Rawal said that her views “should be identified to be emanating from “Judicious activism” and not from “Judicial activism” as they are called in common parlance.” And what were her views? Courts are entitled to take a more proactive role in ensuring the realization of social rights. She coined the term “socio-legal” rights to denote rights which stem from the traditional socioeconomic gene, but which ought to be realized immediately as opposed to progressively.
As the title suggests, her thoughts were inspired by a court case, whereby the High Court in Meru declared that the Police had violated several of the Petitioners’ rights for failing to take adequate action to address sexual violence. However, the court declined to grant the Petitioners’ prayers for the Respondents to formulate a National Policy Framework and to implement the guidelines provided in the reference manual on the Sexual Offences Act as well as the order directing the Respondents to regularly appear before court to report on its compliance with the implementation of the orders. Rawal DCJ (as she then was) lamented that the court did everything right up until where it declined to give supervisory orders. Among other cases, it was contrasted with the case of Mitu-Bell Welfare Society v Attorney General & 2 others [2013] eKLR where Kenya’s High Court granted supervisory orders requiring the state to report to court within the stipulated time on the progress made towards a resolution of the Petitioners’ grievances, and the Indian case of Vishaka v. Rajasthan AIR 1997 Supreme Court of India, 3011 where the court formulated guidelines and norms to afford women protection from sexual harassment in place of work, pending enactment of legislation on the subject matter. The court also spelt out how the guidelines should be implemented thus making protection from violence, including sexual harassment a reality for women in India, thereby exercising its supervisory role.
Philosopher Kings…and Queens.
Plato (428-347 B.C.E.) argued for the need to have leaders of pure intellect, ethic and merit. Philosopher Kings, he called them. What about queens? Did he give thought to them? A 2018 survey by the Pew Research Center suggested Greece to be the most culturally chauvinistic country in Europe. While Plato is not here to state his case, DCJ Rawal may very well have a claim to royalty.
Judicial authority.
The royalty of the Judiciary is enshrined in Article 1(3)(c) of the Constitution of Kenya which delegates power to the Judiciary and independent tribunals. Article 159(1) further states that judicial authority is derived from the people. So, why was Philosopher Queen Rawal shy to be associated with judicial activism? She was happy to associate herself with the sentiments of Mutunga CJ (as he then was) in his dissenting opinion on the matter of The Principle of Gender Presentation in the National Assembly and the Senate – Advisory Opinion of the Supreme Court (2012) KLR – SCK, whereby the good Judge stressed the need to immediately implement the two-thirds gender principle. CJ Emeritus Mutunga has a background in activism and has no qualms about bringing out his support for it in debate. Still, DCJ Rawal did not want to be associated with it. Why?
Saving grace.
The Judiciary’s role in stopping despotism is well known. Ramaswamy and Hansaria, SCJJ in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors (1995) aptly noted that the independence of judges is a special trait they carry. It is close to the philosophy Plato so desired.
But it is not just that. Judges are highly educated. The phrase “learned friends” befits the legal profession. That all judicial officers must have a basic minimum qualification as Advocates while public officers from other arms of government battle questionable credentials speaks for itself. But it is not just that. Judges must sift through hoards of information from fields far removed from themselves in order to render competent decisions. For how else can a philosopher of the law understand that a doctor’s medical procedure was negligent to a patient? Or that an engineer’s building works were substandard?
But it is not just that. Judges must meticulously reason out their decisions. Failure to do so becomes a fertile ground for appeal whereby the appellate court must re-evaluate the evidence and come to its own conclusions as stated in the widely cited case of Selle & Another v Associated Motorboat Co. Ltd & Another (1968) E.A. 123. But it is not just that. Poor reasoning can have consequences as dire as removal from office as seen in the matter of the Tribunal Appointed to Investigate the Conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya. Several purges on the Judiciary have occurred over the years, and the various Petitions against current senior judges have stirred the waters once more.
On the other hand, other government arms are not held to such a high standard of transparency. Political “consultations” are their form of justifying their trajectory, and it took the Judiciary’s hand in the environmental case of Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR to give guidelines on adequate public participation. Speaking of which, the modus operandi ad infinitum of the Judiciary is public participation since disputes are always solved through the direct participation of the parties involved. It is only in 2023 that Kenya’s Climate Change (Public Participation and Access to Climate Change Information) Regulations were enacted, and a general Public Participation Bill was tabled in Parliament.
But that is not all. Judges are administrators as much as they are adjudicators. The process through which justice is administered requires as much skill as the conclusion. Poor case management, for instance, will inevitably lead to poor results. In their own wisdom, through committees, and through capacity building in the Kenya Judiciary Academy and elsewhere, they are able to facilitate access to justice. And when the Chief Justice is alleged to err in his or her administrative capacity, they can be sued as seen in the case of Olili v President of the Supreme Court of Kenya & another; Law Society of Kenya (Interested Party) [2024] KEHC 7182 (KLR). DCJ Rawal herself got entangled in a protracted legal battle over her retirement later on.
That is to say judges are not perfect. They are humans, after all. And it is said that human is to error. Odunga JA reminds us that they are not angels that retreat to Heaven in the evening and return to Earth in the morning. Not by any stretch of the imagination. Yet if we had to stretch, judges should be more perfect than other public officers, more welcome to Heaven and more in sync with Plato’s Philosopher Kings…and Queens.
Conclusion.
The argument that judges should keep from interfering with governance because they are not elected is tolerable at least, but destructive at worst. It forgets that those elected are the ones that commit the most ferocious atrocities against the electorate. And where does the electorate seek refuge when that happens? In Courts. In judges. What if judges were to rule? Why should they not? Would it not be wonderful? By the way, Plato also abhorred democracy. And by more way, all attributes lauded to judges hereinabove apply to all judicial officers' mutatis mutandis.
