We must resist judicial activism in interpretation of law

By Charles Kanjama

Two years ago, the new Constitution was promulgated amid pomp and fanfare. I happened to be in Bungoma at the time, managing a spiritual retreat, and trying to cope with the aftermath of a road accident I was involved in the day before promulgation.

I had engaged in a four-month newspaper debate with colleague Kibe Mungai on the pros and cons of the new Constitution.  We had gone through all the chapters of the document.

As a keen lawyer for the ‘No’ side, I had ensured I pointed out all the document’s pitfalls, while Kibe highlighted its merits. The outcome had been a win for ‘Kibe’s client’, quite the reverse of our 2005 newspaper debate on the Wako Draft Constitution when ‘my client’ ‘Orange’ had come out victorious.

In one of my debate columns in August 2010, I reflected on the challenges of implementation. I commented: “In implementing the new Constitution, the main challenge will be to interpret or alter the document in ways that uphold our moral values and legislative sovereignty. We will have to continually resist activist interpretations of international law, and activist judicial grab of legislative power.”

I used Esau, who sold his birthright to his brother Jacob for a bowl of lentil soup, as a background motif for that column. So I finished in a rather pessimistic note, contemplating a future of unrestrained judicial activism: “Kenyans may wake up in the near future to the bitter realisation of Esau: that we lost our birthright to another and we cannot win it back.”

Before and after that column, I have taken the battle against judicial activism to textbook, newspaper and academic writings, speaking forums including the classroom, and even to the High Court, the Appeal and Supreme Courts. Since I practise as an advocate before our judges and magistrates, I have for them both individually and collectively the deepest respect. I also truly appreciate the ongoing judicial transformation.

Within this context, I support judicial restraint through the doctrine of ‘stare decisis’ or judicial precedent. I am an exponent of the original or historical approach to constitutional interpretation. I have chosen to support, to the extent I can, legislative freedom of Parliament and Executive discretion in matters of policy. And I identified Constitution worship as an enemy to democracy, a form of idolatry we must guard against.

Judicial restraint does not mean judicial timidity. Indeed judicial timidity and its brothers, Executive impunity and legislative recklessness, were the chief cause of the loss of confidence by Kenyans in our previous governance structure. When required to defend the Constitution, the Judiciary must come out strongly and firmly, equally ready to strike down legislative acts and to sanction Executive overreach.

Judicial restraint simply means that the Judiciary avoid swinging Kenya like a see-saw from Executive impunity to the other extreme, which is judicial overreach. One useful thermometer for measuring judicial balance is to observe the judicial attitude to our cultural standards, our moral values and our political questions. Constitutional scholars can also use the visual prism of two key activist decisions of the US Supreme Court, the 1973 abortion case Roe v Wade, and the 1992 decision Planned Parenthood v Casey.

Two years have gone by since the new Constitution was promulgated. In that period, we have also engaged in a substantial re-work of our laws and policies. The legislation continues apace, although we must remain vigilant to expose any undemocratic or undesirable elements in the law reform process.

The next six months will see our focus gradually and firmly shift to the electoral process that will transition us fully into the new Constitutional dispensation. We will need good leadership to see us through. “Constant vigilance!” the motto of Mad-Eye Moody in JK Rowling’s Harry Potter, must be our motto too. Or as various sages have remarked since the 18th century: “Eternal vigilance is the price of liberty.”

The writer is an Advocate of the High Court