To protect rule of law, courts should stay out of political fights

By Ken Opalo

One of the cardinal features of Kenyan exceptionalism in the region has been our ideological commitment to public order and the rule of law. Even at the height of autocracy under presidents Jomo Kenyatta and Daniel arap Moi, there was always the sense that legal procedure had to be followed, even when the law was being used to violate other people’s rights.

But recently, the Kenyan elite has been acting like the rule of law does not matter. Court orders are being ignored left, right and centre, with little word from those who swore to defend the sanctity of our Constitution. We are slowly gravitating towards a state of lawlessness.

Take, for instance, the ongoing war between governors and senators. On the whole, I think it is a good thing that different segments of our constellation of institutions are fighting turf wars. We will only know the limits of our Constitution if we test it. I would be worried if the more than 500 elected officials we have in Nairobi and the counties always agreed with each other.

For democratic values to be entrenched, there must be a real and substantive dispersal of centres of power, both in Nairobi and out in the counties. And the process of achieving this important goal will often necessarily include bare-knuckle political fights. But such fights, however necessary, must be had within the confines of the law, and in reverence to our constitution.

The importance of having well defined and publicly stated rules and procedures is that it establishes a sense of predictability in the legal environment. In order to guarantee the continued entrenchment of rule of law in Kenya, elected and other high-ranking Government officials should respect court orders. And for this to happen, those who act in contempt of court must be punished. There is no point of having rules if those who routinely violate them go scot-free.

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The more we hear and see in the news individuals who disrespect court orders without consequences, the more it will be entrenched in Kenyans’ psyche that courts do not really matter, or that rules are only for wananchi and not the wenyenchi.

Chief Justice Willy Mutunga, a man that many Kenyans still respect as possibly the most venerable public official in the country, should come out and defend the rule of law in no uncertain terms.

He should also ensure that well-connected individuals intent on violating the law do not use the Judiciary and/or the office of the Director of Public Prosecutions (DPP) as shields. If he doesn’t do anything else before he retires from office, the CJ must ensure that the following of rules and procedure become part of the DNA of officials charged with dispensing justice – both within the Executive and the Judiciary.

That said, in order to protect its stature and reputation, the Judiciary must also be smart about the fights it chooses to fight. The confirmation of Embu Governor Martin Wambora’s impeachment by the Senate and the subsequent fall-out between the Senate and the Council of Governors are political fights that should remain outside the courts.

The courts must realise that although theoretically they are supposed to serve outside the bounds and limits of politics, they are an inherently political institution that cannot purport to operate outside the dictates of public opinion.

In fact, in some countries like the US, a section of judges are popularly elected. As a responsible institution, the Judiciary must pick its fights with elected officials wisely, lest it ends up portraying itself as an impotent institution.

With its activist approach to injunctions, it risks soiling its reputation by issuing orders that it knows will not be respected by politicians who have public opinion on their side. To protect its reputation and the rule of law, the Judiciary should do its utmost best to stay clear of political fights between elected officials.

There is room for judicial activism in the protection of individual rights of Kenyans. But there is also a fine line between justified judicial activism and outright over-reach. And in the case of Governor Wambora, the courts over-reached.

If the Judiciary is to continue as a respected institution, our judges must have a minimum of political suave. I reiterate that as a young institution eager to protect its turf and guarantee the impartial exercise of justice in this country, the Judiciary must know which cases require judicial activism and which ones it should not touch even with a 10-foot pole!

Failure to do so will most certainly result in the courts appearing as mere tools used by politicians to settle scores.