Kenya: Judiciary is so critical in democracy

Democracy both as a political concept and as a linguistic term has for ages defied simple and explicit definition.

Like Apostle Paul's love, democracy is easier defined by its attributes. When US President Abraham Lincoln called it a government by the people, of the people and for the people, he must have been well aware that his 19th century America was a more complex society than the Greek city states.

Direct, full participatory government is difficult even within a small family. Americans came out of the Philadelphia Hall with a Republican system. A representative democracy where electors choose a President on behalf of the general population.

A century later, as if to emphasise, another US President Franklin Roosevelt formulated the four freedoms which must be at the centre of democratic life. These are; freedom of worship, freedom of speech, freedom from want and freedom from fear. Democracy must afford people a comfortable life. If it only stops at freedom of speech then that is hollow, shallow and unsustainable.

A good democracy must afford us good schooling, jobs, houses, clothing, healthcare and food of good value. As Jesper Stal recently told us, once these are achieved, people even stop caring too much about politics as is the case in his native Sweden.

Kenyans are now familiar with the ubiquitous lady from the Nyando Basin whose cry goes; serikali saidia, kuku yangu, watoto yangu, hata bwana yangu, yote imeenda! (Please government, help! my chicken, my kids, even my husband, all have been "washed away")

As it turns out, her fellow citizens took to parodying her, she become subject of spooky skits. She has all but been demonised for her troubles. Yet the very rationale for government, even the raison detre for the Constitution is the welfare of the people.

The backbone of the 2010 Constitution is the Bill of Rights. The rest is a definition and architecture of the means to deliver this. The right to life ranks high in our supreme law. As right thinking Kenyans we ought to institute proceedings in court under article 22 to force the government to prove that the perennial woes of the Nyando Plains are a thing of the past.

Which brings us to another cardinal concept of democracy; separation of powers. Formulated initially by Charles de Montesquieu, political theorists are agreed that a functional democracy need complementary yet separate arms of executive, legislative and judiciary.

Kenneth Janda has convincingly argued that the Judiciary, when well meaning, has the capacity to become the most powerful branch of the three arms of government.

In any case, they above all else are mandated by the Constitution to state with finality what the Constitution is. While the courts generally have original jurisdiction to hear any matter regarding the interpretation of the Constitution, the Supreme Court has the last word on what the law is.

In fact, whereas the Independent Electoral and Boundaries Commission is mandated to declare the winner of a presidential election, the last word on the veracity of that declaration lies with the Supreme Court.

So that besides having power to affirm what the law really is, they also declare who is President. Therefore one imagines that those who would wish to become magistrates, judges and Kadhis are people of very high moral and intellectual standards. But we now know that some of them do not mind bribes.

This has forced a livid Chief Justice to threaten a fresh round of vetting "even more vicious than the previous one."

Sharad Rao and team are still at it dealing with the final batch of magistrates. Some of the cases they came across were utterly shocking; bribe-taking, inability to write comprehensible rulings, narcissism is rife.

The attitude, mental health and intellectual ability of the Bench should be way up there. We wait to see what the CJ will do in order to restore our confidence in the Judiciary.

It is our last resort.

It is also the last bastion for the Nyando flood victim when all else fails.