July last year, Harvard Law School Assistant Professor, Nikolas Bowie, wrote in the Washington Post an opinion headlined; "How the Supreme Court dominates our democracy'- Judicial review gives any five justices power over the whole government. Why?"
A recent Supreme Court of Kenya (SCOK) ruling on petitions challenging the August 9, 2022 election of William Ruto as president begs such a question. That seven judges of SCOK unanimously overturned the wishes of about seven million Kenyans raises fundamental questions.
The language and manner of delivery of the ruling demeaned the petitioners and has raised public ire. Judging by the resultant discourse on social media, many have come to the conclusion, rightly or not, that the ruling was more about hitting back at an Executive that has consistently defied court orders than anything else. And the unanimity of the ruling, by itself, raises more questions than answers.
We must interrogate why seven selected individuals should determine the fate of a country of nearly 50 million people when their infallibility cannot be vouched for. Bowie opines that, "It is absurd for a nation of 300 million (America) to be perpetually governed by five Harvard and Yale alumni".
We are conditioned not to question decisions by SCOK, but Judges are human, hence prone to error and personal prejudices. In a democracy, such onerous responsibility should be vested in elected leaders who directly represent Kenyans, judges included. Discourse in the august House is exhaustive and conclusive, at the end of which the majority have their way and the minority their say. That cannot be said of the Supreme Court.
Bowie questions who, between Congress and the Supreme Court, should have the final word on constitutional interpretation. Indeed, in our context, it raises questions on whether we should allow SCOK to ride roughshod over institutions like the Senate and National Assembly, yet it does not have the mandate of the people. "It's difficult to explain why, in a democracy, the constitutional interpretation of five justices should be superior to the constitutional interpretation of the elected officials who appointed and confirmed them (judges)," Bowie wrote. He adds, "the justices (Supreme Court) in the majority effectively declare that their view is superior to everyone else's. Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced".
So, yes, why should the interpretation of seven judges be superior to the interpretation of elected leaders? The argument here is very simple; that democratic decision-making belongs in the hands of democratic bodies (bicameral Parliament), not people with robes or guns (judges, the police and the military). "Why should a court be in charge of a democracy? The answer is: It shouldn't," Bowie concludes.
Bowie's contention that 'the Supreme Court has functioned as an antidemocratic institution that produces anti-democratic results,' is all too evident to those who care to look past the sacrosanct decisions of our apex court.
In his inaugural speech, Abraham Lincoln (1861) said; "the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal".