The right to go to court is in the Constitution, can't be taken away

The Judiciary. [Elvis Ogina, Standard]

Mr President, you are further wrong. You criticise those going to court to challenge the legality and constitutionality of your laws, policies and actions.

You run down “litigation, sponsored by hostage-taking vested interests, with the sole aim to delay, derail, and sabotage the delivery of public programmes and defeat public interest,” (Daily Nation, 2 January 2023, 4).

Your ‘public programmes’ by law have to be lawful and in compliance with the Constitution. You think they are. But as you are aware, ‘No one can be a judge in his own cause’.

So, you too cannot be the judge of the validity of your own actions. This task, to judge the validity of your actions, is vested in the courts. This is provided in the Constitution. And it is a right. Not a favour from the Presidency or any other politician or policy-maker. 

Article 258(1) states explicitly: “Every person has the right to institute court proceedings, claiming that the constitution has been contravened, or is threatened to be contravened.” And can also do so in the public interest: (Art.258(2)(c))

In case you are in doubt, and think politicians can stop other Kenyans from going to court, the Constitution repeats the right: Article 22(1) “Every person has the right to institute court proceedings, claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.” And can also do so in the public interest: (Art.22(2)(c)).

Then, in case partisan politicians can’t read or do not want to read and still disregard the above two articles, the Constitution repeats the point a third time: Article 23(1) provides: “The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”

Article 23 also answers the question your sycophants will keep telling you. “Who the hell are these courts to decide anything which we whom the people elected in unrigged elections have already decided?”

The Constitution answers them directly. This provision is titled “Authority of Courts to uphold and Enforce the Bill of Rights. Similarly, Article 23 is titled “Enforcement of Bill of Rights. And Article 258 is titled “Enforcement of the Constitution”, showing that the purpose of these rights is set out in the Constitution itself: it is enforcement of the Constitution.

And your supporters also need to keep in mind Article 48 Access to Justice: “The State shall ensure access to Justice for all persons...”

Your statement instead calls such access ‘hostage-taking’, ‘sabotage’, ‘the defeating of public interest’, (where do you get these ancient cliches from? It reminds one of JJ Kamotho, champion in platitudinous abuse).

To your pleased supporters, it is also an attack on the judges. Because you have directly identified the judges also as delayers, defeaters and derailers. Do not do so.

Delay is authorised by the Constitution itself when ‘in the public interest’ and ‘necessary’ (your own words for your harsh policies): see Article 23(2) on ‘conservatory order’ and ‘injunction’.

As the country has been reminding you already, do not attack judges. The principle of the independence of the Judiciary, a major pillar of the Rule of Law, is at stake. So too, do not pressure the Chief Justice to tell her judges to comply with whatever the Executive says.

Nor do these put-downs sound sincere. We in advocates’ offices have seen too many high politicians who in high office have regularly attacked judges change their tune when out of office, and beg us, “Can’t you get a stay for me? Can’t you delay the case?”

So Mr William Ruto, don’t put on your best performance only for ceremonial parades and heads of state meetings. And don’t put on your best constitutional language only in foreign countries, trying to show them we are a Rule of Law country.

They are not fooled. Use your best constitutional language also in Kenya. We too will not be fooled. But we will know you have shown your supporters that it is the Constitution that is supreme. Not Kenya Kwanza, and not the self-appointed directors of an imaginary company.

In your own language, again, the Constitution is “in the short term painful, but in the long term gainful.” We build stronger institutionalised capacity against illegality and authoritarianism.

-The writer is senior counsel