Courts must always focus on applying the law

By Kamotho Waiganjo
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In the last few weeks our courts have made several decisions with far reaching political social and economic consequences. These decisions bring to mind the famous 1963 US Supreme Court case of Gideon V. Wainright. In that case, the court established the principle that under the US Constitution, states have a duty to provide indigent accused persons with counsel at sate expense.

Whereas there was hue and cry against the decision, the US government, affirming the authority of the court released thousands of prisoners who had been convicted without representation. The case forced the Executive to invest millions of dollars in facilitating representation for poor Americans and completely changed the face of the American criminal justice system.

I cite this case to debunk the myth that the court’s primary duty when rendering decisions is to consider the social, political and economic consequences of its decisions, a narrative that is gaining ground in Kenya.

Granted, courts must be alive to the society in which they operate and must take into account the broader public interest when rendering decisions. But like the Gideon case, where rights have been breached and the law contravened, the courts must first and foremost seek to protect the law. In a constitutional democracy like ours, the protection of the constitution is where the court’s focus must stay, for ultimately that is the guarantor of a stable democracy.

The best illustration of the court’s justified blindness to the political consequences of its decisions is the just-concluded case in which the High Court reinstated the Embu Governor after a conclusive impeachment by the Senate. Anyone reading the court’s judgment will notice the court’s awareness that the reprieve it had given Governor Martin Wambora was going to be short-lived and that its decision muddled an already untidy political situation.

It was for example going to be near impossible for the Governor to run a county in which the entire legislature had rejected him. A fresh impeachment was almost guaranteed. But the court rightly chose to be blind to those considerations.

More important than political pragmatism was for the court to restate certain basic principles that the various state organs dealing with the matter had ignored but which were central to the exercise of constitutional duties. One was the need to define an impeachment threshold and the necessity of applying basic rules of natural justice in any quasi-judicial process. Secondly the court needed to emphasise that there could never be justification for parties to disregard court rulings; any resultant act would be null and void.

In a young democracy like ours it is extremely essential that these and other basic principles that inform the exercise of constitutionally allocated power be emphasised. We have come from a history of abuse of state power in complete disregard of the law. This led to the mistrust of institutions and a near slide to anarchy. Courts must be ruthless in rejecting any slide back to lawlessness, especially by state organs, even where its decisions have expensive consequences. So yes, the Wambora case and even the JSC case that declared the President’s appointment of the Ringera Tribunal unlawful have problematic implications, but the consequences of the court’s decisions are easier to handle than legitimising blatant disregard for the rule of law.

Naturally with the extensive power that the courts have been given by the Constitution comes great responsibility. A few cautions to the courts will suffice. Only in rare circumstances should the courts give ex parte decisions, it is important that the views of all parties be heard before decisions are rendered.

Courts must avoid wading into purely political disputes easier solved through political processes. Other than establishing applicable principles, impeachment is one arena courts must be wary of striding into.

A final word to the Supreme Court. As the apex court which largely determines public regard for the Judiciary, the court must be extremely judicious in its decisions and would be well advised re-read Article 163(4)b which requires it to only hear appeals of “general public importance.” It must avoid getting embroiled in typical appeal cases, which only serve to erode its credibility and that of the judiciary generally. Enjoy a blessed and law abiding Easter.