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Courts must prove their mettle

By George Marenya | March 2nd 2016

As the controversy around Supreme Court Judge Philip Tunoi continues to simmer alongside the fact that Chief Justice Willy Mutunga will be retiring in June, it is time to take stock of Dr Mutunga’s the achievements.

The tradition of naming judicial epochs after the presiding Chief Justice dates back a long time. The Mutunga Court is iconic for the fact that it was the first one after the promulgation of the Constitution of Kenya 2010.

The judicial system, hence courts, make up a crucial part of the democratic ecosystem. I cast my lot with a senior editor at a local media house who said that “the Supreme Court is the intellectual commanding height of Kenyan legal scholarship, the pinnacle of moral authority.”

Years after buildings have been inaugurated and judges sworn in and retired, what shall remain a court’s enduring legacy is the harvest of judgments that constitute jurisprudential watersheds or infamy. In truth, even at the height of the dark days of the first republic judges would sometimes stand firm and find for rule of law, justice and truth.

In Speaker of the Senate v Attorney General and others, Dr Mutunga promised us a positivist school of jurisprudence which while steeped in mastery of the Constitution will go out of its way to engage in non-legal phenomena.

This way, he boasted, such jurisprudence would “breathe life into the transformation of our nation... The job description of judicial officers is to generate progressive jurisprudence that concretises human rights.”

So that it is not in doubt that apart from the fact that the Constitution donates some sovereign power to the courts through the people, the court itself is seemingly more that ready to take up its role in developing a democratic culture, the rule of law and constitutionalism

It is for this reason that I challenge the academia, civil society and the law fraternity to take this exercise seriously. It is not enough merely to have bound volumes of judgments in your library.

What is needed is the ventilation of these rulings so as to demonstrate how that impact on not merely the development of law, but the welfare of the citizen. Article 165 could not be clearer than saying that the High Court has jurisdiction to hear any question in respect of the interpretation of this constitution.

It also has powers to test any law against the Constitution to ascertain whether it really fits in. Public Servants may also be questioned as to whether their actions conform to the Constitution and the law.

Even more germane is the authority of the High Court to determine “any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government.”

Article 163 mandates the Supreme Court to give an advisory opinion at the request of the national governments with respect to any matter concerning county government. I believe, verily, that anyone who lives up to the aspirations of Article 3 which places an obligation on all of us to respect, uphold and defend the Constitution deserves applause.

The judges, conscientious and alive to their duty, who put in hours of toil and sacrifice, must be recognised as such. Commenting on their work for the sake of future students of law and jurists is part fulfillment of that exercise.

Besides, given that each analyst brings new perspective to a ruling, it helps keep the embers of a debate burning. It helps to constantly put politico-legal questions in perspective.

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