By Koki Muli
The High Court ruling on July 9 on the electoral boundaries – constituencies and wards was firm, clear and decisive; it didn’t confuse or leave any doubt.
It was an interpretation of the Constitution, which is final and precise and aims to safeguard the supremacy of the Constitution. While relying on Schedule 6 of the Constitution for clarity; its core point of reference was the substantive provisions of Article 89 of the Constitution.
It didn’t aim to change or alter the content of the Constitution; it instead upheld it. The Constitution provides that Kenya shall have 290 constituencies, which if the High Court had not upheld, would have meant an amendment to the Constitution.
This ruling restores further confidence that the Judiciary will remain steadfast in its functions and uphold the supremacy of the Constitution and the rule of law. Although, there are a few people who may not be satisfied with the outcome of the ruling; it is important to note that, the High Court addressed itself to the fundamental questions touching on its core mandate of interpreting the Constitution.
In this regard, it has set the framework for interpreting the law, allowing express and clear provisions to retain their meaning thereby guaranteeing the letter and the spirit of the Constitution.
Kenyans are becoming very litigious because of our newly found confidence and trust in the Judiciary; we want to resolve all our conflicts, disputes and disagreements in the courts. We can’t do this because it will bog the Judiciary down.
While the Constitution guarantees all of us the right to fair trial and our day in court, we must be careful not to become vexatious and frivolous litigants. Therefore, the Judiciary must firmly put a stop to unnecessary litigation.
Of the three organs of the Government, the Judiciary seems to have taken the lead to provide strategic and even political leadership; for indeed, it was the Chief Justice who categorically stated that the Judiciary will fight in the trenches of reform to stand firm and ensure leaders who fail to meet the threshold of leadership integrity as set out in Chapter Six of the Constitution, are not allowed to run for public office.
He has promised the Judiciary will weed out individuals who do not meet integrity and leadership standards.
Seems that there is no ambiguity regarding what the leadership of the Judiciary believes in; all the other courts must tow the line and end impunity and restore judicial integrity and clarity – the Judiciary should never again cede its power to interpret the law and guard the Constitution.
The Judiciary interprets, applies the law and resolves disputes and ensures the respect of the rule of law and equal justice for all. It is key guardian of the Constitution and the protector of human rights.
The Legislature’s main function is making law while the Executive is mainly concerned with the implementation and enforcement of the law. The three organs of the Government must collectively ensure respect of the rule of law and justice for all. They must work in collaboration and cooperation although independent of each other.
The Judiciary is the final authority in interpreting the Constitution and the other two organs must respect the decisions of the courts and if dissatisfied, appeal to higher courts until there is no more appeals after which the decision of the final court must be obeyed and adhered to if rule of law is to be maintained.
The Executive must provide political leadership while the Legislature must concentrate on making laws required to fully implement the Constitution and to provide sufficient legal framework for governance, democracy, justice and rule of law. The Judiciary is leading the way; the Executive and Legislature must surely follow suit and rise above parochial and sectarian interests.
The writer is an elections and constitutional law expert and lecturer, South Eastern University College
