Let's get something straight - 'activist' judges are not necessarily a bad thing. Sure, Mr. Justice Musinga is roiling the waters with his string of rulings in recent weeks. Sure, Lady Justice Jean Gacheche started the trend with her intervention in the Ligale Commission case. But we cannot hope for a conservative Judiciary if we want the true ideals of the Constitution to be upheld, especially a positivist interpretation of the Bill of Rights that seeks to expand upon the gains of the Second Liberation Movement. Fears of an activist Judiciary are overblown and are meant to create the impression that the status quo is a thing to be maintained when it has been the bane for the past 47 years. Indeed, the Constitution calls for an activist Judiciary in Articles 19(2), 20(3), and 21(3) when interpreting or protecting and preserving the rights enshrined in the Bill of Rights.
Many conservatives will point to the culture wars being fought in the United States Supreme Court, especially the judge-made laws that expanded abortion rights or limited the power of the Federal Government, and declare that such a situation in Kenya would lead to great social and political turmoil, leading to crises such as the one that followed the 2007 general elections. I beg to differ. During the Referendum Campaign, many in the Red Camp read mischief in the manner with which certain articles were drafted, paying special attention to the clauses on right to life and those on land. The Committee of Experts came in for special attention, being accused of subverting the sovereignty of the people of Kenya, especially by providing for when abortion could and could not be performed. Many of the opponents of the Proposed Constitution, especially from the Rift Valley and certain other well-connected land barons objected to the sweeping power that the National Land Commission would wield, especially regarding 'historical injustices'. They were, and continue to be, wrong.
The greatest battles over the soul of this nation will be fought in the courts. It will take an especially enlightened Judiciary to right the wrongs of the past 47 years and give to Kenyans a sense that their rights will be protected from all those who threaten them. The Judiciary must play a leading role in not only interpreting the Constitution, but developing constitutional law to the fullest extent of freedom envisaged under the Constitution. The Judiciary must ensure that the expansion of the freedoms in the Bill of Rights is unfettered with the fears of a minority or the desires of a thieving political class. Which is why the manner in which the President and Prime Minister nominated the Chief Justice and Director of Public Prosecutions was wrong and wrong-headed.
While the Constitution specifically provided for the Principals to act as they did, they had no reason to ignore the positive aspects of the appointment procedure contemplated under the Constitution. The role of the new judicial Service Commission and the Office of the DPP are meant to protect Kenyans from their government and to provide them with an opportunity to claim their rights at the only forum that is acceptable to all. With all other governance institutions facing their own specific challenges, the Judiciary should be the last place where the battles between the PM's ODM and the President's PNU are fought out without considering the needs of ordinary Kenyans. If the political class is unable to grasp this basic truism, then we are in graver risk than was originally assumed.
The risks of an activist Judiciary cannot be gainsaid. For instance, the Judiciary may become the weapon of the State in restricting the freedoms enshrined in the Bill of Rights, limiting the opportunities for ordinary Kenyans to expand their rights by making narrow, mechanical interpretations that reserve the power to make decisions in the hands of the State agencies. It can make judgments that create political and social risks without regard for the risks many Kenyans faced when challenging the post-Independence status quo.
The risks of an activist Judiciary can only be addressed if the process of constituting the Judiciary is as open and as competitive as possible. Lists of judicial officers cannot be drawn up in political back-rooms or kitchen cabinets. The input of the people, especially through the JSC, is critical and mandatory. It is only when the process is transparent that Kenyans may have any confidence in the probity, integrity, wisdom and judgment of their judges and magistrates. To this end, Mr. Justice Visram and Kioko Kilukumi would be best-advised to withdraw their names from consideration until the process is made more transparent. Just because the President can do what he did does not mean that he should have. It was wrong, and it is time Kenyans started telling him so. After all, he gave us this opportunity by being the most hands-off president of all time.
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