Constitution should create a socially just State and society – Martha Koome


Chief Justice Martha Koome at CJ's Gardens, Supreme Court. May 24, 2021. [Jonah Onyango, Standard]

Today is the 11th anniversary of the 2010 Constitution. Some may say the dreams which inspired the adoption of this historic document remain a distant reality.

My response is that we must mark this moment to celebrate adoption of this charter of good governance, and reflect on our performance in the collective quest to realise its vision.

The pursuit for a new constitutional dispensation was driven by Kenyans’ demand for a democratic, egalitarian, participatory and accountable State and society. A reading of the Constitution reveals that it seeks to create a social order and governance system, the direct opposite of the pre-2010 authoritarian era.  

In its principles and values, the Constitution embodies a Kenya that our people want. The first decade of the implementation of the Constitution involved what I would call norm and institutional alignment with the aspirations of the Constitution.

If one looks at some of the most revolutionary aspects of the Constitution like transformation of the Judiciary, devolution of power and need to infuse a culture of human rights in our polity, Kenya has changed for the better.

Despite numerous challenges of enforcement, the rights of Kenyans are now generally better protected and the jurisprudence from our courts in the domain of human rights is pursuing a systematic interpretation approach that pays attention to Kenya’s social, historical and aspirational context.

There is still a challenge in ensuring the Judiciary, constitutional commissions and independent offices are adequately resourced to enable them carry out their statutory mandate efficiently.

I am optimistic that we can overcome these hurdles when the Arms of the Government and other agencies sit together in the spirit of cooperative governance and principled dialogue envisaged in the Constitution.

In the past decade, we were preoccupied with cutting the cord linking us to our dark authoritarian past. The Constitution has admirably helped us navigate that path. In the second decade, we must embark on ensuring the vision of the Constitution becomes a reality for all Kenyans. 

Chief Justice Martha Koome. [Edward Kiplimo, Standard]

The great vision that runs through the Constitution from the preamble to the founding values and principles in Article 10, and the purpose of the Bill of Rights is to create a socially just State and society.

I need to emphasise the point often forgotten that the Constitution establishes a value-order that regulates the State but also society. To give full effect to its promises will involve ensuring its values radiate and permeate all spheres of our society, is owned, and claimed by all.

We must begin to live the ideals embodied in the Constitution. For example, the rampant corruption that we still experience in the country is as a result of individuals who pursue personal gain in defiance of ethos expressed in the Constitution.

On our part in the Judiciary, our second decade of the institution’s transformational journey will be geared towards the realisation of the vision of ‘Social Transformation through Access to Justice’.

While the Judiciary ecosystem has greatly improved, and while the processes have largely been set, what remains now is to facilitate access to courts and other avenues of justice by all Kenyans. This collective responsibility is placed on the entire governance machinery with interlocking responsibilities to facilitate the people’s access to various social, political and welfare goods.

Access to justice is the holistic realisation of the national values and principles of governance elaborated under Article 10(2) as well as a stand-alone right with an obligation of the State to eliminate barriers to its full enjoyment.

In response to this constitutional imperative, the Judiciary recognises that the doorways to justice must be revived, reformed, and renewed to meet Kenyans’ needs.

Chief Justice Martha Koome. [Edward Kiplimo, Standard]

Registries, magistrates courts, tribunals, small claims courts, and avenues of alternative dispute resolution must be aligned to the ethos of public service by way of physical infrastructure and the service software necessary to inspire confidence and facilitate access.

The model we envision is one locating these entries as standardised centres of excellence in the delivery of justice, powered by the collaborative input of users and continuous innovation.

State and non-state actors must not pull in different directions to deliver the promise of the Constitution. The architecture of our governing charter does not leave room for silo-approach leadership. That is why my call remains exploratory of nodes of collaboration, dialogue, and constructive execution of the mandate of the entire justice sector. Concerns of infringement of judicial independence continue to arise.

The inherent autonomy of judicial authority is sacrosanct. It is ring-fenced by the Constitution. We must therefore not shy away from collaboration with other actors in fear of this infringement. Defence of the Constitution is a national prerogative and I am prepared to champion it boldly and fervently.

The Constitution remains our roadmap to the future. We should continuously strive to live up to its ideals. It is our sure route to establishing a socially just State and society for all Kenyans. 

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