Supreme Court sleepwalking onto radical surgeon's table

Courts of law at the apex of national judicial systems ought to serve as the compass by which the proper direction and status of a country’s jurisprudence is to be determined. As an apex court from which there is no appeal, the Supreme Court of Kenya is expected to provide principled and reasoned answers to substantive questions of law.

This expectation is the basis of the rule that its decisions must be reasoned, consistent, coherent and reasonably determinate. When adhered to, this rule creates certainty so that advocates, judges and litigants alike can reasonably predict or explain judicial outcomes.

However, recent decisions of the Supreme Court inspire little confidence as to consistency of approach. The jurisdiction of the Supreme Court is one area beset by such marked contradiction as to suggest that the rule of law has been jettisoned altogether. Articles 163(4)(a) and 163(4)(b) of the Constitution state that the Supreme Court’s appellate jurisdiction can be triggered only in cases ‘involving the interpretation or application’ of the Constitution and in cases certified as involving ‘a matter of general public importance.’

However, the Supreme Court has purported to consider matters that have little to do with the interpretation or application of the Constitution, and which raise no issues of public importance. An example is the Deynes Muriithi case where, despite having conceded its lack of jurisdiction to stay a Court of Appeal order, the Supreme Court inexplicably contradicted itself and proceeded to interfere with that order.

Besides the startling self-negation, the Supreme Court’s stance in Deynes Muriithi conflicts with its view in Teachers Service Commission where it held that it does not have jurisdiction to entertain a matter that is at an interlocutory stage. It also jars with the Supreme Court’s precedent – solidly affirmed in, among others, Aviation and Allied Workers, Susan Jane Shah and Joseph Njau – that jurisdiction is everything.

Despite these inconsistencies, the Supreme Court has been faithful to the Constitution in the overwhelming majority of decisions concerning jurisdiction. Still, there is cause for concern that the dubious decisions which are in the minority can destroy its reputation. How can these inconsistencies be explained? One theory may be that changes to the Court’s composition have resulted in corresponding variations in collective views. A more convincing theory is that, personal interests/bias have crept into the judicial calculus and are steadily becoming the determinative functions in judicial formulae. This can be supported by a simple comparison of the contrarian views adopted by certain judges on the same issues in different cases. The most probable explanation for such variance is personal interest/bias.

If this is accepted, then certain judicial actions become explicable. A judge may improperly seek to influence the adoption of an overly expansive reading of a legal provision beyond the text of the Constitution or the reasonable intent of its drafters. Another may purport to interpret or apply a constitutional provision that was not pleaded in the Court of Appeal, let alone in the High Court. Such actions are calculated to achieve collateral aims that are besides the core of the case.

One cannot but shudder at the thought of the effect of this misguided practice on our jurisprudence, the potent discontent it has begun to stoke, and the inevitable radical reform that it foreshadows. When the Court of Appeal was Kenya’s apex court, it was an eager defender of establishment-aligned interests at the expense of justice, as well as a consummate manipulator of the rule of law to suit partisan ends. Secure in the false promise of 100 years of Kanu rule, that Court of Appeal presided over a dark period remembered for abject poverty of its jurisprudence.

Although the brazen antics of the Court of Appeal of yesteryear are unlikely to be replicated in the foreseeable future, subtle iterations of comparable patterns of behaviour are beginning to emerge in the recent practice of the Supreme Court. Just as hatchling king cobras are deadly, so too must we regard this emergent vice with extreme caution and take urgent steps to defang it in its reptilian infancy.

The question, then, is: if the Constitution is amended, is there not a case to be made to vet the current Supreme Court judges? Even if this may not be the case, the Supreme Court must take steps to revisit its errant ways because, one way or the other, it has started sleepwalking onto the radical surgeon’s table.

-The writer is an advocate of the High Court of Kenya