Thursday, March 24, 2022

Lessons from the USA

What do you remember of the process that led to the appointment of Chief Justice Martha Koome? Do you remember how many applicants there were for the job? Do you remember that they were “interviewed” by the Judicial Service Commission or that they were “vetted” by the National Assembly? The interviews and vetting of the ultimate nominee were televised but I can honestly declare that I don’t remember much about it. Maybe the allegations of plagiarism leveled against an applicant by her students and the smug arrogance of another applicant, jacket off, that had the whiff of “Mta-do?” come to mind. Maybe they don’t.

In contrast, even from 8,000km away, I can recall key moments in the vetting of Associate Justices Gorsuch, Kavanaugh and Barrett by the United States Senate. Despite the obvious histrionics of the highly motivated partisans, the public vetting of the justices revealed a considerable amount about their judicial principles and philosophies. As has the most recent vetting of Judge Ketanji Brown Jackson. The degree to which their judicial records have been publicly scrutinized even before they sat before the US Senate was illuminating and when they were sworn in, it was clear where they stood on key constitutional and legal principles. I challenge you to say with confidence what Chief Justice Koome’s or Supreme Court Judge William Ouko’s constitutional and legal viewpoints are. (Both were appointed to the Supreme Court at the same time.)

Instead, the main topic of national discussion remains who will be president and even this discussion is not held on the basis of the political philosophies of the candidates rather than their perceived ability to mobilize tribal and ethnic vote banks in their favor. How the US chooses its judges is filled with political spectacle but the spectacle is not an end in itself; it serves the valuable task of indicating to a high degree of confidence whether or not their judicial officials can be trusted to do their job with impartiality and fairness. How Kenyans choose their Supreme Court judges and, by extension, their presidential candidates does not inspire any kind of confidence. Rather, it reinforces the feelings of nihilism that seem to pervade so much of our lives these days.

In the coming week, the US will have a new, highly respected and eminently qualified, associate justice of the Supreme Court of the United States while Kenya will be kept in the dark on whether the Supreme Court of the Republic of Kenya has been able to answer a simple question: what is the Basic Structure Doctrine and does it apply to the Constitution of Kenya. The High Court and Court of Appeal were able to answer this question, but it is only the Supreme Court that has the power to declare whether or not the lower courts were right. Instead of framing the question in this way, Kenyans have been encouraged to focus on two irrelevant and interrelated questions: does Kenya need the recommendations of the BBI and does the next president have an obligation to implement the BBI recommendations or not?

In my opinion, BBI (as catch all for the constitutional review issues raised for the purposes of securing the election of Raila Odinga and the continued engagement of Uhuru Kenyatta in national governance) is the wrong question. We must settle for posterity the question of the nature of our constitution’s basic structure, how it limits the procedure of constitutional amendment, and how the people are to be involved and engaged in the process of its amendment. For that question to be settle, other political and constitutional questions must be settled as well: is the president a king? Can parliament ignore its core constituencies? Can the judiciary take an activist posture in defense of the constitution’s basic structure? Instead, tragically, we are entertained by yellow-clad politicians parading themselves like TV starlets.

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