Thorny issues on justice system

By Pravin Bowry

The Harmonised Draft Constitution published by the Committee of Experts has not addressed many basic issues touching on the judicial system. Other issues have received half-hearted treatment and need deeper thought.

Here are some of the burning issues to inform debate.

Death Penalty: Despite the fact that no Kenyan has been hanged since 1987, death penalty has not been addressed. In particular Article 35 on right of life is drafted in such a way that death row convicts will be able to legally question the sentence. Clear-cut enactment is needed allowing or not allowing death penalty.

Abuse of court process: This jurisdiction presently is vested only in the High Court and subordinate courts are barred to adjudicate on allegations of abuse. The lower courts must be given powers to deal with the matter at the start of a trial.

Legal redress: The most unusual and confusing aspects of proposed constitution is that any aggrieved citizen seeking constitutional relief will be given an option to go to the trial court, the Constitutional Court, the High Court or the Human Rights and Gender Commission. The multiplicity of forums is very confusing.

Making of rules: The Chief Justice is given powers to make rules (see Article 31, B). The existing constitution has been an impotent instrument because former Chief Justices refused to promulgate rules. In 2001 this was remedied partially. Under some Sections, no rules have been made since 1963. The Constitution must provide that where rules have to be published the same must be accomplished within a specified time frame.

Supremacy of Parliament: Article 32 (3) (d) reads that a court may give a "declaration of invalidity of any law that infringes the Bill of Rights and is not justified in terms of Article 33." There is no definition of a ‘court.’ Does this clause not erode the supremacy of Parliament, making courts more powerful than Parliament? This particular provision should be the preserve of the highest court — the proposed Supreme Court — sitting with say, seven judges.

Kenya Anti-Corruption Authority and Ombudsman: These two institutions need to be recognised in the Constitution and given powers of prosecution.

Doctrine of Precedent: Over centuries this doctrine of court-made law has been accepted. The proposal now is that the proposed Supreme Court "shall not be bound by its previous decisions if it considers it is in the interests of justice and the development of law for it not to be so bound. Does this not, once again, erode Parliament’s supremacy? If development of law is required, the only body to do so must be the Parliament, not the Courts.

Commission of Inquiries: Historically many profound national matters in the country have been referred to the Commission of Inquiries. Usually issues are either deflated, sidelined or archived and reports not implemented (or even published). The new Constitution must provide precisely and specifically the directions for setting up and managing of these Commissions.

These commissions cost billions to run, are ineffective and are only used as escape routes to divert attention.

Tribunals: In our existing laws there are laws providing for over 60 tribunals. A unified and universal constitutional method of setting up and running and managing these tribunals must be set up lest powers are abused by these quasi-courts. Tribunal Chairpersons should get privileges of judges and should not be part – time personnel.