JUDICIARY SHOULD NOT LOBBY AGAINST THE PASSAGE OF THE PROPOSED CONSTITUTION

For our foundering Judiciary, its bad times have mostly been recent; its worst freshest in our minds. Weeks ago three High Court judges dramatically declared a constitutional provision unconstitutional. It is not always in the law that so few can attempt to so quickly change so much. That Judgment was a clear case of Judges’ perverting public power and guarding of antagonistic individual interest to public detriment. It was meant to arouse public sentiment against the proposed constitution and to aid against the passage of the proposed constitution.

It is wrong for Judges, whose adjudicative role requires neutrality rather than advocacy, to urge, directly or indirectly, the passage or defeat of proposed legislation. The decision that Kadhis courts should not be in the constitution was wrong as there is no law super-ordinate to the constitution. The constitution itself creates the Judiciary to safeguard it not fight it. For Judges to check it is to invite lawless adjudication. To permit the constitution to be modified at Judges’ discretion is to leave us without constitution. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied.

The courts on which Judges serve constitute, thanks to the Constitution, a separate coequal branch of government, sharing responsibility with Parliament and the Executive for exercising political authority over the nation. While the trappings and roles of a Judge may vary from those of the more outwardly brother political institutions, politics and self-interest is not lacking in the courts.

Accepting a judgeship does not carry with it a forfeiture of cunning self-interest and survival priority. A Judge is usually aware of the judicial role, but putting on the red robe does not neutralize his or her self-interest or survival priority. Being like us, they are subject to the same forces that influence our behavior. They have attitudes, self-interests, biases, and political opinions. They share with us the preference to see their own interests and priorities prevail over competing policy interests. That is why they seek to drown the proposed constitution.

It is the conceit of each people to imagine that there problems are without precedent. In the United States, the infamous 1861 case of Dred Scott-V-Sandford helped precipitate the Civil war. It held slaves to be vendible chattels capable of being bought and sold like cattle. Slavery was then a divisive and dangerous issue just like Kadhis courts is now and slave-holding states were agitating for rights to govern themselves independently. Indeed the American independence convention had five decades earlier deliberately omitted to deal with the slavery question for had it; there probably would not have been a constitution.

To the naysayer, the proposed constitution is good in many ways. Every one of its provisions has a history. Every one stops a way through which the overwhelming power of Government has oppressed the weak individual Kenyans, and may do so again if the way is opened. That judgment was meant to derail our realizing the proposed constitution.