Judicial activism a threat to Judiciary

By Kennedy Buhere

It is gratifying that the Judiciary has made impressive improvements in administration of justice by refurbishing courts, establishing new ones and employing more officers.

Public appreciation of these reforms are reflected in a survey conducted by Infotrak Research and Consulting, which found that 70 percent of those polled had confidence in Chief Justice Willy Mutunga management of the Judiciary.

That confidence should translate into public submission to the moral and legal authority of the Judiciary. Lest we forget, the post-election violence resulted from low confidence the public had in Judiciary, in particular the institution’s ability to hear and determine poll disputes.

A lot has also been done to reform the Executive and Legislative branches of Government.

We are seeing a Legislature that is as assertive as Judiciary. And as the three branches interact, there is balance of power with each offering checks and balances.

The Speaker of National Assembly Kenneth Marende in his remarks during the State of Judiciary Report expressed need for the institution to take into account socio-economic dynamics of the country.

He specifically asked judges to respect constitutional mandates of Parliament and Executive by eschewing making decisions that undermine legislations and policies that the Government wants to use to serve public interest.

The Speaker’s comments were appropriate. While reforms in Judiciary have made it free to administer justice without fear or favour, it is worth noting that some judges in their decisions are threatening the principles of Separation of Powers, which the Constitution clearly defines.

The courts appear to have embraced a concept in US Jurisprudence known as judicial activism. Judicial activism gives grounds to a judge, who subscribes to this approach to settle cases on grounds extrinsic to the Constitution.

Under the guise of applying the provisions of the Constitution to a disputed Act of Parliament or policy initiatives of the Executive, a court may invalidate laws and policy decisions that the Executive may make on the grounds that they violate the Constitution.

While judicial review of Executive actions and subordinate legislations is an appropriate function of the court system, an activist approach to arbitration of matters in court will weaken the authority and flexibility the Executive needs to resolve complex public policy issues it handles.

Unwise laws

It is strange, but Judiciary is the least democratic branch of Government. Unlike president and MPs, judges are appointed rather than elected and re-elected.

As one of the fiercest opponent of judicial activism, Justice Harlan Stone observed in US vs Butler that courts are not the only agency of Government that must be presumed to have the capacity to govern. “For the removal of unwise laws from the statute books appeal lies not in the courts, but the ballot and the process of democratic Government,” Justice Harlan observed.

In constitutional law, the Judiciary is a coordinate branch of the Government whose job is to adjudicate disputes in respect to the law, while the Legislature’s basic function is to make the law and the Executive to enforce it. The Constitution has simply re-affirmed in clear language the separation of powers and has not given the court any prerogatives to make law.

Judicial activism enables the court to step beyond its sphere, which is wrong. US Supreme Court under Chief Justice Evans Hughes is credited with the famous statement that “We, (the US citizens) are under a Constitution, but the Constitution is what the Supreme Court says it is!” If the Constitution is what the court says it is, then, it can pour any meaning it wants into the Constitution or a particular Statute.

The Chief Justice must also learn to restrain himself from making pronouncements that might prejudice or unduly influence the court’s decisions.

He has lately made comments that have direct bearing on certain matters still before the court.

{Kennedy Buhere, Nairobi}