By Charles Kanjama
Conservatism has been under fire recently. No less than the Chief Justice was recently reported as publicly attacking conservatism, blasting its principles as retrogressive and lambasting its supporters as ignorant of the Constitution. Conservatives were reportedly attacked as corrupt political and business beneficiaries of the old order, and the National Conservative Forum (NCF) lampooned as a front for these forces. The Chief Justice concluded that judicial activism is demanded by our new Constitution.
Necessary disclosure: I am closely linked to NCF, and I can say from a point of authority that NCF has been misreported and even defamed in recent newspaper articles that turned it into a punching bag for ultra-liberals. That aside, I must also disclose that I have been an ardent proponent of judicial restraint. I have opposed judicial activism as anti-democratic and unconstitutional, often a veil for a deliberate cultural and moral iconoclasm that requires exposure and rejection.
Conservatism properly understood is the philosophy of the majority, who seek to preserve tradition while embracing progress. Conservatives, like liberals, may be extreme or moderate. Democracy though requires a continuing dialogue between conservatives and liberals because it is an essential part of statecraft. Strong conservatism drags liberalism back from extremism. Modern conservatives critique the idea that any movement means reform.
Only movement that takes you closer to your proper end, thus implying progress, is worth seeking. For the Constitution, its key end is to promote the majority will and uphold the common good through a well-designed governance structure.
Last year in the Court of Appeal sitting as Supreme Court, one party declared as we argued the proper scope of the Supreme Court’s advisory jurisdiction, “The Constitution is like Plasticine that can assume any form.” This appalling idea is the ultimate desire of the ultraliberal, who despairs of using democratic majorities to attain their version of reform and decides to use a pliant Judiciary to impose harmful social engineering.
Majority of Kenyans are conservative. The same is true of most societies, modern or ancient. It is simply part of nature, since growth ordinarily happens via conservation. Thus the American Paul Weyrich coined the phrase, ‘the moral majority’. The majority of judicial officers in Kenya today are likewise conservative, and that is a good thing. The attempt to turn them into dyed-in-the-wool liberals must be resisted.
Judicial activism means a football referee wearing partisan colours and choosing to act as a player for one team. As a judicial philosophy, it was discredited in its first home, USA, where it was unable to surmount the intellectual critique of conservatism. Even in Kenya, it cannot stand the test of enlightened constitutional analysis. Barely two years ago, to get Kenyans to pass the Constitution, we were repeatedly and clearly told that the Constitution does not allow homosexual behaviour, nor does it weaken the existing law on abortion. How does a judge claim that these issues are now legally uncertain and the Supreme Court will rule on them? How totally unacceptable? Isn’t this the epitome of mischief?
This really is judicial activism exposed, where a judge’s personal bias and minority opinion later becomes the law of the country by stealth, the will of the majority be damned and their reasonable interpretation of legal instruments be trashed. NCF has been wrongly accused of trying to bring down the Chief Justice. Writing as a practising advocate benefiting from the positive aspects of the ongoing judicial transformation: That is ridiculous. But if there was a red line on judicial propriety, we would be happy to help draw it. Manipulating one’s appointment through irregular contact with a member of the Judicial Service Commission would be such conduct. So would any attempt to deliberately manipulate the law, contrary to the judicial oath or code of conduct.
This is NCF’s defence, and this is my candid and oft-stated argument. Let anyone understand who can.
The writer is an Advocate of the High Court