The crisis at the Supreme Court of Kenya is worrisome. The serious allegations of bribery of a judge, irrespective of the veracity of such allegations; and the fact that an inquiry has been instituted bring to the fore the million-dollar political question: could the court, as currently constituted, be used to usurp the peoples’ will in the next General Election?
It is necessary for our democracy to have an independent, objective and trusted arbiter in the inevitable conflicts that would arise from time to time.
In the United States system of government, the Supreme Court has a special role to play; luckily it stands firmly on 300 years of solid history. The Constitution gives it the power to check, if and when necessary, the actions of the Executive and the Legislature.
It can tell a President that his actions are in breach of the Constitution. It can tell Congress that a law it has passed is in violation of the Constitution and is, therefore, not a law. It can tell a state government that one of its laws contravenes a principle in the Constitution.
It is the final judge in all cases involving laws of Congress, and the highest law of all — the Constitution.
The Supreme Court, however, is far from all-powerful. Its power is limited by the other two branches of government. The President nominates justices to the court. The Senate must approve the nominees. The Congress also has great power over the lower courts in the federal system. District and appeals courts are created by Acts of Congress. These courts may be abolished if Congress deems it fit.
The Supreme Court is like a referee in a football match. The Congress, the President, the state police, and other government officials are the players. Some pass laws, and others enforce laws. But all exercise power within certain boundaries. These boundaries are set by the Constitution. As the “referee” in the US system of government, it is the Supreme Court’s job to say when government officials step out of bounds.
In Kenya, arbitration of presidential election petitions is vested in the Supreme Court. The fact that it is an un-elected constitutional organ mandated to have the final say in presidential election disputes, positive public perception must be kept at an all-time high. As things stand now, public confidence in the court has been greatly eroded.
The Supreme Court is inter-related and inter-dependent to our democracy, so I suggest a deferent approach to some principle matters.
The re-constitution of the Independent Electoral and Boundaries Commission, including improving its voter registration process, replacing its electronic register for training officials and for voting and agreeing on how instant reporting during elections is done.
Stakeholders in Kenya’s governance and justice system must urgently but carefully build consensus on how to fill vacancies in the Supreme Court which would arise from the anticipated retirement of Chief Justice Willy Mutunga and his deputy and any other exits before the next General Election. No effort should be spared to project the Supreme Court as the pinnacle of justice; a sacred institution worthy of honour and beyond reproach.