What Judiciary should do to keep partisan politics at bay
KAMOTHO WAIGANJO | By Kamotho Waiganjo | June 19th 2021
Are we unduly judicialising politics? The Judiciary’s detractors believe it is willingly and robustly engaging in disputes best left to politics.
The proponents of this position believe that the principal issues in contention in BBI for instance, were largely political and that once the issue was infused with deeply partisan politics, the judges would have been well advised to leave such contestations in the political arena.
Those who support the Judiciary’s active involvement in such “political questions” believe that this is not the fault of the Judiciary; it is the new Constitution that allocated the Judiciary the right and indeed the obligation to delve in these arenas.
Without going into the merits of either argument by the protagonists, the reality is that since 2010, significant political questions have been presented to the Judiciary for resolution.
Disputes relating to division of revenue, an intensely political question, and now the amendment of the Constitution have been decided by the courts.
These issues, in an ideal world, would have been best resolved within the political space. This rush to courts is explained by the placement of the Judiciary at the apex of the governance pyramid, which was not accidental. In years prior to the 2010 Constitution, the Executive and the Legislature were perceived negatively. On its part, the Judiciary had been completely neutered until the birth of the new constitutional order. It had thus acquired strong allies in the reform movement.
Consequently, constitution makers were determined to strengthen the Judiciary to ensure it defined the parameters of the next phase of reform, the implementation, giving meaning and life to the Constitution. The Judiciary would resolve inter and intra-institutional disputes. The Judiciary would close gaps evident in the constitutional text. Using its interpretive power, it would even amend the Constitution, which the framers had made almost impossible by politicians.
While this is not of itself a bad thing, the Judiciary must however be aware that with its new found power came many attendant risks; the principal one being that the political establishment, long used to exercising ultimate residual power, would inevitably seek to weaken and if possible control the Judiciary. Any student of power dynamics should therefore not be surprised that the Executive should be intensely concerned with who joins the Judiciary.
One should not be surprised that while all other institutions have had their budgets increased over time, the Judiciary one has remained stagnant. This is the price to pay for its new found power. And this is just the beginning. Unfortunately for the Judiciary, the tools available to the political establishment to weaken and even delegitimise it, are legion. Without an equal ability to get into the public arena to make its case, judges are left with their judgments to speak for them.
When the decisions involve deeply contested political questions, and where these questions have no value proposition, just differing political perspectives, the Judiciary is left at the mercy of partisan politics.
This opens avenues for political attacks and de-legitimisation. Unfortunately for Kenya, when the Judiciary is weak, when it is ineffective, the citizens pay a heavy price. Which is why on these deeply partisan political questions, where there are no serious value questions that prejudice the citizenry, a wise Judiciary must find ways to allow politics to find resolution.
Proceeding otherwise when the Judiciary is still in its infancy, may be technically correct but it will do the institution and country more harm than good.
But as long as the Judiciary is keeping away from partisan politicking and playing its rightful role protecting the Constitution, it is the duty of those of us who see the value of an independent Judiciary to protect it from its detractors.
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