Is the right to life the most important political, social or economic question likely to be faced by the Supreme Court of Kenya, let alone the Judiciary of Kenya, in the next five years? If your answer is "Yes" and your answer is informed to a large part with the "rights of the unborn child," then there is little rational discussion that you and I may hold on this subject. But if your answer, broadly speaking, is about the Bill of Rights and the lengths the judiciary should go to protect it as the executive attempts to restrict its application, then you have a better-than-average understanding of the proper relationship between the people, their government and their constitution.
It has been three weeks or so since the Judicial Service Commission undertook to interview and select for the president jurists whom they believe should be nominated or appointed to the Supreme Court, including in the position of Chief Justice and Deputy Chief Justice. Except for a selected few, some with deeply vested interests and other because they are committed to demystifying the Government of Kenya, the discussion of the interviews has neither been well-informed nor well-reported. What little we have been able to glean of what the Commission has been looking for has done little to persuade me that we have a truly paradigmatic understanding of our government or our constitution. The Commission, sadly, continues to disappoint.
One of the questions that has been raised by the Commission over and over has been that of abortion and whether interviewees would or would not "permit abortion." This has to be the stupidest and laziest enquiry that has been mounted by the Commission and it is a shame that it has not been extended to its logical conclusion. I say is stupid and lazy because it is no more than a parroting of what passes for debate in the United States in its never ending culture wars.
In Kenya, the question is easily settled. Abortion is not permitted unless, in the opinion of a trained medical profession, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. That is the sum and substance of Article 26(4) of the Constitution. Whether or not judges will permit abortion is neither here nor there; the Constitution permits it in four specific circumstances. Until Parliament rouses itself to address the final circumstance ("...or if permitted by any other written law"), theoretical disquisitions by judges being interviewed by the Commission are useless. It is sad that the law professors in the Commission did not grasp this simple truism.
On the Bill of Rights, however, a missed opportunity revealed more than met the eye. Under Dr Willy Mutunga's tenure as the Chief Justice, the judiciary was overwhelmed by political disputes that seemed urgent at the time but were quite intellectually pedestrian when examined in the light of foresight. If David Maraga is confirmed as Dr Mutunga's successor, perhaps his judiciary will have the opportunity to tackle truly important questions, especially on the limits of executive powers in the context of the Bill of Rights.
The executive has been prodding, over the past five years, whether or not Kenyans are prepared to push back against the insidious abrogation of the Bill of Rights. The most obvious is the national Police Service and the escalating extra-judicial killings of criminal suspects. But it is in the expansion of the mandates of state agencies, such as the Kenya Film Classification Board, that the judiciary shall eventually be called on to adjudicate and determine whether such expansions are constitutional or not. If the Commission had pursued an examination of the judges' ideologies regarding the proper power of the executive in the context of the Bill of Rights, Kenyans might have had a better picture of whether or not the judiciary, as seen through the mindsets of the interviewees, was a friend of the people or a friend of the State. That would have been a more useful discourse.