Judicial reform must entail reforms in Legal Reasoning

By Dann Mwangi

Two weeks ago, the High Court made two fundamental rulings, one touching on whether President Kibaki’s appointment of county commissioners was constitutional and whether candidates seeking election for gubernatorial seats should have degrees or not.

These rulings by Justice Mumbi Ngugi leaves a lot to be desired and must be challenged, legally and scholarly. They remain fundamentally wrong and lack legal validity and reliability.

In the county commissioners petition, the judge erred in the following ways. She declared the appointments unconstitutional on the basis that Article 3 (2) of the Sixth Schedule of the Constitution does not save the Presidential powers under the former constitution.

However, this Article is clear that “Articles 30 to 40, 43 to 46 and 48 to 58 of the former constitution, provisions of the former constitution concerning the Executive...shall continue to operate until the first General Election held under this Constitution...’

This Article gives the president powers in Article 23 and 24 of the old constitution to create offices, appoint and redeploy persons in the transitional period as we head towards the General Election.

Justice Ngigi is of a different view that Article 23 and 24 of the former Constitution were not saved whereas a literal or any other interpretation of this Article would have led her to hold a different view.

In addition, the judge continued to misinterpret the same Constitution that she is expected to jealously guard by relying on suspended Articles of the Constitution to annul the presidential appointments.

She relied on Article 132 (f) of the Constitution whereas Article 2 (1) (c) of the Sixth Schedule of the Constitution elaborates in simple words that Articles 129 to 155 of Chapter Nine are suspended until the final announcement of all the results of the first elections for Parliament under the Constitution 2010 except provisions relating to the election of the President during the first General Election under the Constitution.

Clearly, the judge blatantly refused to appreciate these Articles and was more on an adventure, not based on the Constitution or constitutional theory, to declare the appointments unconstitutional.

Further, although the judge appreciated the High Court ruling in the case of Federation of Women Lawyers & Others –v- the Attorney General No 102 of 2011 that gender principle in Article 27 (8) of the Constitution was subject to progressive realisation, she refused to reasonably articulate why she ignored this precedent but rather chose the easier route of relying on the ruling of Milka Adhiambo Otieno & Another –v- the Attorney General No 44 of 2011.

Milka’s case held that the gender rule principle would be applied automatically.

This subjects judicial precedence into uncertainty because instead of the judge coming up with her own jurisprudence on this matter, she chose with reasons that cannot stand on its own legs to rely on one case but ignore the other and thus we do not know which precedent to be followed on the gender rule as so far there is no clear legislative framework to guide us.

 limited resources

I appreciate that the judge relied on the South African landmark case of Soobramoney –v- Minister of Health (Kwa Zulu Natal) 1998 (1) SA 765 (CC) to further her thoughts that the progressive realisation test when applied on the gender rule is only applicable in limited resources.

Inasmuch I agree with the finding in the Soobramoney case, which is further enriched by the South African case of Grootboom and others (2000 (11) BCLR 1169 (CC), I disagree with how the judge imported the judicial wisdom from these cases.

For women in Kenya to compete easily with men, there must be allocation of enough resources to educate them and a coherent policy by government to achieve this balance and, therefore, the judge’s thoughts are wrong.

On the ruling concerning degree requirements, the judge equally misdirected herself by stating that the need to have parliamentary candidates hold post-secondary education was unconstitutional but that the same for presidential and gubernatorial candidates was constitutional.

She clearly ignores that the same socio-economic and political situations that she founded her judgement on afflicts those aspiring to be governors or president, too.

Worst of all, by stating that the role to be played by Members of Parliament is not complex to require a degree than that of governors, she underrates the fundamental role of legislation done by Parliament.

Finally, she treats the Constituency Development Fund as chicken feed that does not require a degree holder but elevates county monies to a higher level that it must be managed by a degree holder. Either way, she disrespects the over-burdened taxes that we pay and creates a window for looting of public resources.

Therefore, the public must be vigilant about the kind of decisions judges in the new dispensation are making as judicial reforms entail reforms in legal reasoning not only in infrastructural development, hiring of new judges or magistrates.

The writer is a lawyer.

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