Attack on judge is dangerous for the integrity of Judiciary

The malice, irrational and ethnically motivated attack directed at Justice Odunga, the head of Judicial Review Division of the High Court of Kenya, is disheartening and impinges on the integrity of the Judiciary. Judges are accountable to the law, not to special interests or political pressure.

While recognising the right of elected officials to exercise their freedom of speech under the Constitution of Kenya 2010, it is grossly improper for them to personally attack members of the Judiciary through statements that question the dignity of the judge, or imply personal bias as the basis of a judicial ruling. Elected officials must take the lead in showing respect to judges, even if they disagree with specific judicial decisions. 

Constitution of Kenya 2010 is a "never and never again" Constitution. It firmly shuts the door of "oppression of one by another". It affords people the opportunity to turn their backs firmly on a dim and painful past. Further, the Constitution is inspirational, and therefore transformative.

Supreme constitution

Under the Constitution of Kenya 2010, we resolved in a referendum to live under the rule of law and a supreme Constitution. We stated that every law or State conduct inconsistent with the Constitution was invalid. We jettisoned parliamentary and executive sovereignty in favour of supreme constitutionalism. The Parliament, the Executive, the Judiciary and all other organs of state, as well as all who live in Kenya, are bound by and must submit to the authority of the Constitution.

All arms of State must be responsive, accountable and transparent in their dealings with each other and with the public. Public participation is a constitutional right. We entrenched Public participation in the Constitution as it is crucial to democracy's effectiveness, strengthening citizens' trust in authorities, and achieving better governance. The Constitution requires State contracts for goods and services be done within fair, equitable, transparent, competitive and cost-effective systems. Courts have constitutional powers, under judicial review, to intervene where valid allegations have been made about wrongful procurement of goods and services by Government and its agencies.

The Constitution vests judicial authority of the Republic in Judges. It adds that courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. In other words judges must display utmost fidelity to the Constitution and other law.

Constitution admonishes that no person or organ of state may interfere with the functioning of the courts and directs organs of state to assist and protect courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Any action that tries to bring the Judiciary under the control of Parliament or the Executive must be struck down, even if there was no express conflict between such action and the Constitution. 

It is fundamental to the rule of law that Executive and Legislature decisions are open to review by judges to see that they conform to what the rule of law requires. Judicial review is essential if we have a powerful Executive and, or Parliament. It is an irritant to the Executive and Parliament but it is a very important, fundamental control on the excesses of State.

We must therefore be careful about limiting the availability of judicial review, which allows claimants to challenge the decisions of public bodies that may have misused or exceeded their powers. The primary responsibility for addressing any problems with judicial review rests with the Judiciary.

The Constitution creates a hierarchy of courts and has inducted a judicial system that is open to an appellate process from the bottom to the top of the structure. Thus constitution embraces judicial fallibility. Judges have no power to implement their own orders, nor do they command independent resources. Judges have neither the sword nor the purse.

The executive bears the duty to execute court orders. Parliament votes for and allocates resources to the judiciary. Judicial role is passive and reactive and almost never proactive. A judge may not chase after a dispute down the road and bring it before the court. A judge presides over a dispute brought to court by litigants and only when it has the appropriate power or jurisdiction to do so.

Obedience

Judges must obey laws made by the legislature provided that they are consistent with the Constitution. Judges are not at liberty to ignore a valid law, because it is a legitimate expression of the democratic will which binds them. The courts act as a check upon the exercise of executive and legislative power. They test laws and public bodies' decisions for constitutional compliance.

The Constitution compels courts to declare invalid any law or conduct that is inconsistent with the Constitution and requires judges to exercise judicial review of executive and administrative decisions. Judges are required to enforce fundamental rights and freedoms, and to develop the common law and customary law to the extent that they may be deficient.

Mr Wainaina is Executive Director, International Centre for Policy and Conflict; @NdunguWainaina