Judicial Activism during Transformative Constitutionalism

By Godfrey Musila

Following a number of apparently paradigm-shifting judgments, not least the MRC case, our judges are coming under attack for alleged judicial activism.

Some have suggested, supposedly unflatteringly, that the judges ‘are behaving like civil society’ and ‘unnecessarily challenging the executive’.

I argue, with respect, that these accusations are based on a misapprehension of what judicial activism is, and are perhaps based on lack of appreciation of the nature of our new constitution, and what it demands of our judges, and the legal profession in general.

As will become evident below, am yet to see a judgment that would lead me to characterise the judge as activist.

The idea of judicial activism originates in the United States, where it entered debates on constitutionalism and the role of judges in the early years of the republic.

Our situation

Judicial activism, a controversial term commonly used in the context of constitutional and statutory interpretation and in debates on separation of powers refers to a practice by the courts where ‘judicial rulings are suspected of being based on personal or political considerations rather than on existing law’.

To accuse a judge of practicing judicial activism is to say that the judge has read in the law things that don’t exist in the law (or that the lawmaker didn’t not intent) and that as such, the judge is not respecting separation of powers by essentially legislating.

I say ‘accuse’ because the debate is also ideologically and politically-laden. Those who advocate for ‘judicial restraint’ are often conservatives who say judges must know their place in the scheme of separation of powers.

Liberals often advocate for activism because they partly believe the law must be used to advance social ends, especially in favour of the vulnerable in society.

That brings me back to our situation.

At the outset, it is critical to understand that our Constitution is different from the western liberal model that is minimalist because it largely preoccupies itself with assigning and checking power among state organs.

There are many features in our Constitution – article 10 on values, the Bill of Rights, socio-economic rights, affirmative action, and heavy focus on the rights of previously marginalised – that establish it firmly as a transformative constitution.

A transformative constitution demands that the government must intervene actively in society to advance social justice, equity, human dignity and the rights of previously marginalised groups. This fundamental re-ordering of social, political and economic spheres of life introduced by our transformative constitution demands and shapes a new role for judges.

To be certain, the constitution provides for this role.

Judges are enjoined to give effect to the Bill of Rights against which all laws and every government policy in social, political and cultural spheres must be measured.

Strike it down

It is critical to understand – and this is something we must all internalise – the era of parliamentary supremacy is dead: our transformative constitution has permanently ushered us into an era of constitutional supremacy.

It does not matter what Parliament says or executive does if it is not constitutional. It must be struck down.

And it is worth noting that the Constitution today empowers judges (Article 20.3) to develop the law (statute and common law) to ensure it conforms with the values in Article 10 and the Bill of Rights.

This means, consistent with section 7 of the Sixth Schedule and comparative experience, that judges can read in or sever words from a law to make it constitutional then require the legislature to act accordingly.

I can understand why a constitution that empowers judges to develop the law can be unsettling for those trained, have practiced and lived in the old tradition. I suspect that the judges, like all of us, are still coming to grips with what the new Constitution is really about.

Forceful argument

It is clear though that a doctrine of strict separation of powers is no longer tenable in Kenya. I only hope that it develops in collaborative, rather than contentious direction.

But this is only possible if we see the exchanges between the courts, executive, the bar and the public as dialogue (more on this in another piece).

I suggest that we must heed the counsel of Justice Pius Langa, former Chief Justice of South Africa who argues forcefully – in a context similar to ours – that transformative constitutionalism demands that the legal profession must change the way it thinks about legal problems, the role of judges and the law in society.

As lawyers, we must re-educate ourselves! Change is here to stay.

The writer is Director of African Center for International Legal and Policy Research (CILPRA), based in Nairobi and is an advocate of the High Court.

musila79@gmail.com