Opalo: For justice to prevail courts must stay out of politics

By Ken Opalo

We have become a country run under the shadow of inconsistent court injunctions. From the case involving the Governor of Central Bank, to several election petitions, and lately, impeachment proceedings, the courts have intervened in ways that cast doubt on the institution’s impartiality. 

Ineach of these cases, the Judiciary haemorrhages a fair amount of public support and trust.

A few months ago, I warned that the courts risked being used as a mere political tool by our leaders. Now this fear has become a reality, at least in the court of public opinion. It appears that the courts are itching to interfere in just about any political process. This is a big mistake.

A key marker of judicial independence is boundedness. What this means is that a given country’s Judiciary is independent if political currents only minimally affect its internal operations. Unfortunately, in our case a clear pattern is emerging in which the Judiciary is at the centre of a game of political football featuring well-connected politicians.

It appears that the fruits of the radical surgery and subsequent reforms have soured, and some judges are back into the deep pockets of the high and mighty. The quality of the bench has also been lacking – as demonstrated by the number of clearly partisan and logically inconsistent opinions that some of our judges write.

As any political scientist will tell you, courts are critical for the maintenance of elite political stability. As the institution of political last resort, they should be neutral arbiters and not place themselves at the helm of deciding political winners and losers. When courts try to play “the decider” of political contests, judicial independence is often the number one casualty.

Instead of focusing too much on deciding who won which election; how to use technicalities to favour specific politicians; or who should be impeached or not, the Judiciary should apply itself to ironing out wrinkles in the Constitution to help the politicians arrive at stable arrangements.

Put simply, the courts’ job should be to set the rules, and then let the politicians duke it out on their own to determine who wins and who loses. That is the only way we will ever have a stable and predictable politico-legal environment, something that the current state of affairs is anything but.

At the founding of the Second Republic in 2010, Kenyans were hopeful that a more independent Judiciary would be in the frontlines fighting Wanjiku’s fight against high corruption and official negligence. Those hopes have now been quashed, instead replaced by the reality of an institution only willing to dabble in judicial activism.

My challenge to Chief Justice Willy Mutunga is that he should get his troops in line. Yes, he cannot control each and every judge in each and every case, but he must come up with an incentive structure and guidelines to ensure that judges perform their duties in a manner that is favourable to the advancement of justice.

A possible mechanism would be a peer review system, led by a special panel of members of the Law Society of Kenya. The panel would give quarterly reviews of judges’ opinions from a purely legalist perspective. The reviews would be open to rebuttals from judges and other LSK members. This system would not be designed to second-guess opinions from the bench but strengthen Kenyan jurisprudence by allowing input from the country’s best legal minds.

This way, judges who consistently write poor quality opinions or who perform legal jujitsu to find loopholes to give injunctions on behalf of political masters will be revealed for all to see. And the country will be better for it.

There have been mixed reactions to the President’s Thursday policy statement on county commissioners. Those who agree with his decision to delegate executive powers to the commissioners have cited their important role in maintaining security, implementing national government policy, and above all, ensuring national cohesion. Those opposed have called it a return to the bad old days of the Provincial Administration, a system used by presidents to restrict political space, terrorise citizens and entrench a wapende wasipende system of government.

Neither side is completely off the mark. However, the Kenyan opposition has given not a credible and workable alternative but a reactionary denunciation. As a general rule, whenever Government comes up with policies that are poorly thought out, it would help if the opposition countered with well-researched and workable alternatives. Reflexive oppositionism will not get us anywhere.

The writer is a PhD candidate at Stanford University and consultant with IPRE Group