The Oxford Union invite me to share the role of the judiciary in emerging nations, the importance of constitutionalism and the experiences that have molded my journey to the pinnacle of Kenya’s judicial system, as well as the place of my faith in that process, including instances when I have had to make momentous decisions such as the one that nullified the Presidential Election in Kenya on September 1, 2017.
Given the origins and evolution of the Oxford Union as an organization that stands for religious liberty, and as a forum for discussing a broad range of important public interest issues such as Constitutionalism and as a nurturer of young leaders of integrity, I will try and briefly address all these themes.
Any Constitution is as good as its implementation. In abstract, a constitution is a dead document unless it achieves some measure of constitutionalism. A constitution which provides for respect of human rights— including socio-economic rights, democracy, fair trials, but has no effective mechanism of implementation and enforcement of those rights is a hollow constitution with no constitutionalism.
Constitutionalism entails limited government and the commitment to be governed by such limitations; constitutionalism entails “a recalibration of the State governance [mechanism] so that it is based on the rule of law [and is] … democratic, responsive and accountable”1; constitutionalism entails implementation that succeeds in reflecting the desires and aspirations of the people; constitutionalism entails a vibrant implementation that positively “affects and … improves the reality of people’s [lives].”2 It is common knowledge that in Africa, we have a paradox of constitutions without constitutionalism and these desires end up being mere aspirational platitudes.
Although the independence constitutions of most African States embraced the doctrine of separation of powers, “neutrality of the public service and the independence of the Judiciary”3, they mainly focused on securing the sovereignty of state and setting up the governance machinery. After that was achieved, shortly after independence, the political elite, driven by greed and selfish ambitions, divorced from their minds the concept of constitutional implementation and instead embarked on and succeeded in making numerous amendments, the overall objective of which was to consolidate all state power and authority in the Executive Arm of Government, and in particular the Presidency.
That led to patrimonialism that did not tolerate any form opposition, and established what is known as the ‘imperial presidency.’ Prof. Ghai observes that unlike in Europe where constitutionalism was tied to relations between the growth of the market economy where “entrepreneurs were in the private sector and wanted a reliable legal framework for their plans and contracts, … in Africa the entrepreneurs were those who used state mechanisms which they did not want fettered or questioned, and preferably not accountable to any legal regime”4, for selfish gain. The distinction between the market and the State was thus blurred in Africa’s constitutional outlook.
In Kenya, and I believe in many other African States, after independence, what followed in the subsequent decades is that State institutions, including the Judiciary, were subjugated and subordinated to the Executive. Laws that were used for colonial oppression were retained and others introduced to support the State’s excesses. The country witnessed some of the monumental plunders of its resources through corruption and outright theft.
As a result of these and other acts of impunity and authoritarianism, “Kenyans lost respect for the Constitution and confidence in the political system. Few public institutions enjoyed legitimacy and most lost the ability to resolve differences among the people or political parties….”5 The December 2007 post-election violence in Kenya, for example, was as a result of the opposition parties’ refusal to challenge the results of the Presidential Election on account of their lack of confidence in the Kenyan Judiciary to effectively and impartially resolve electoral disputes, a critical aspect of constitutionalism.
The decline of governance led to a clamour for reform. Kenyans demanded for transparency and independent institutions with legitimate roles in a governance structure that adhered to the rule of law and constitutionalism. In this regard, they demanded first for a multi-party democracy which led to the first multi-party elections in 1992, and, second, constitutional reforms that culminated in the promulgation of a new Constitution in 2010.
Just like other world constitutions, Kenya’s 2010 Constitution is by no means a perfect document that satisfies everybody. As some of you may probably know, its enactment was a delicate balance settled on after a rigorous negotiated compromise. It has nevertheless been billed as one of the world’s most progressive and transformative constitutions which entrenches the doctrine of constitutional supremacy and binds all persons and organs of State. But has it worked well for Kenyans?
We all know that constitutions are not self- executing. No constitution, however elaborate and comprehensive, can provide all the laws, rules and regulations required to ensure that society functions properly. Whereas Constitutions can induce or incentivize behavioral choices, they cannot guarantee them. Constitutions require a culture shift in the human agency to align conduct and custom with rules. Constitutions also require enactment of executing legislation; they require amendments and alignments of various pieces of legislation; they require formulation and execution of appropriate policies; and many other things.
Though the Legislative Arm plays a critical role in the implementation of the Constitution by enacting the required implementing legislation and the ultimate decisions in the process require their political will, and the Judiciary, on its part, serves as the bedrock for the protection, interpretation and application of the constitution, the primary responsibility of implementing the Constitution rests with the Executive Arm of government. It is mainly the Executive that has to originate amendments and alignments of various pieces of legislation or lend crucial support to the enactment of implementing legislation; and it is mainly the one that has to formulate and execute appropriate implementing policies.
Left on their own, however, the Legislative and Executive Arms of Government, often comprised mainly of politicians and the political elites, will implement the Constitution in an arbitrary manner cherry-picking the easier and non-contentious provisions but always safeguarding their personal or sectarian interests. And that is exactly what they have done in Kenya. Three examples will suffice— the implementation of the gender equality principle under the Kenyan Constitution; failure to fight corruption and impunity; and failure to hold credible elections.
On the gender rule, Article 27 of the Kenyan Constitution requires equal treatment of men and women especially on “the right to equal opportunities in political, economic, cultural and social spheres.” To give effect to this requirement, the same Article obligates the State to “take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”
It is common knowledge that ours being patriarchal societies, in Kenya, like in most other African countries, women have fared poorly in elective representation. To redress this, Article 81 of the Constitution provides that the Kenyan electoral system shall ensure that “not more than two-thirds of the members of elective public bodies shall be of the same gender.” Despite a specific requirement in the Fifth Schedule to the Constitution that the legislation to implement this and other provisions of the Constitution should have been enacted within five years, almost ten years down the line legislation to give effect to the two-thirds gender rule, as it is commonly referred to, has not been enacted. Why? Because such legislation will obviously affect and disrupt the patriarchal interests of the Kenyan political elite.
On corruption and impunity, though 80% of its population is Christian, with a fair percentage professing the Muslim, Hindu and other faiths, with the connivance of technocrat “tenderpreneurs” across all those faiths, more than one third of the Kenyan national budget is lost to corruption every year.
Kenya is not alone in this quagmire. Bribery, embezzlement, money laundering, tax evasion, cronyism and other forms of corruption are gobbling up a staggering $3.6 trillion every year, or 5% of the global gross domestic product. The situation is particularly endemic in Africa where the plunder of public resources has ensured that, despite enormous natural resources such as gold, diamonds, copper and oil, hundreds of millions of people live below the poverty line and are ravaged by famine and disease.
Elections in another area where serious challenges arise. Greed for individual accumulation of wealth makes elections world over very competitive features. As political power, especially on the African continent, facilitates the acquisition and consolidation of economic power, presidents in Africa, seek and wield a lot of power.6 “The influence that comes with the office makes it very attractive.”7 That influence cascades down through all elective positions to the lowest. Candidates and political parties often do anything to be elected. Incumbent presidents who are eligible for re- election marshal state power and all means at their disposal to get re-elected.8 Besides the candidates, the electorate themselves, hoping for an improved standard of living, get equally agitated.9
All these factors explain why elections for political power in Africa, at every level, are extremely “high-pressure events.”10 If they are mismanaged or candidates do not respect and adhere to the rules of the game; if the average citizens, political parties and candidates do not perceive them as free and fair and thus question their legitimacy, elections can, and have led to instability in some countries. Examples of such an eventuality abound. To name but a few, the flawed presidential elections in Kenya in December 2007 led to post-election skirmishes that left about 1,100 people dead, about 50,000 others displaced and drove the country to the brink of precipice not to mention the economic crisis that was thereby wrought.11 A fairly similar situation was witnessed in Cote d’Ivoire following the bungled presidential elections in November 2010.12 Flawed presidential elections in Zimbabwe, for many years rendered the country a dictatorship in spite of the declaration in its written constitution that it is a democratic state.
With such eventualities, the proper management of elections in Africa, including the resolution of electoral disputes, is therefore of crucial importance to both the stability and prosperity of nations. The problem in Africa is not the supposed ‘divisiveness’ of elections; rather, it is primarily the absence of integrity in electoral management. Electoral fraud, and the increasing manipulation of electoral choices by foreign data and ICT management companies, pose a serious threat to Africa’s democracy, stability and security.
With all these challenges, what role is the Judiciary supposed to play in the emerging democracies?
As we all know, the Judiciary is the custodian of the Constitution. Research shows that, forty-one (41) countries in Africa make provision in their constitutions for the sovereign power being vested in the people. Article 1 of the Kenyan Constitution provides that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with [the] Constitution.”13 To pre-empt absolutist exercise of State authority, in its architecture, Kenya’s 2010 Constitution has paid fealty to the doctrine of separation of powers, which is the Holy Grail of modern democratic constitutionalism, and delegated the exercise of the people’s power to mainly the three arms of government.14 Article 159(1) of the 2010 Kenyan Constitution has delegated the exercise of the people’s judicial power to “the courts and tribunals established by or under [the same] Constitution.”
The notion of “delegation”, which in most cases is lost sight of, is one of trusteeship meaning that the Judges and Judicial Officers are mere trustees or stewards of the people’s judicial authority. That position of stewardship obliges the courts and tribunals, in their adjudication of the disputes that come before them, to ensure that their interpretation and application of the Constitution gives effect to the values and aspirations of Kenyan people enumerated in that Constitution and other statutory provisions enacted to implement it.
Articles 20(3)(a) and 259 (1) of the Kenyan Constitution succinctly speak to this. Even in the penumbral areas, the Constitution has to be interpreted in a manner that: promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance.
This calls for a purposive interpretation of the Constitution which entails building a meaning beyond the language or wording of a provision; the assumption being that the words in the Constitution have a purpose, “which must emerge in the course of [its] interpretation and eventually realized.”15
This is literally a codification of the long established common law canons of constitutional interpretation of bearing in mind that a Constitution is a living and durable instrument meant to withstand the test of time and serve not only the present generation but also future generations; and to be given not only a holistic and flexible but also a dynamic progressive and liberal interpretation unfettered by technicalities in tandem with societal changing conditions in the broader historical and social context of its enactment. It is in this regard that the Supreme Court of Kenya has emphasized that constitution making does not end at promulgation but continues with interpretation that gives meaning and effect to its provisions, especially those that seem vague and potentially contradictory.16
The Judiciaries in Africa need to develop a self-awareness of the critical role they are expected to play in containing the emergence of authoritarianism. This because Africa’s militaries, bureaucracies; and one party executives and legislatures have a rather unimpressive footprint in their democratic and development outcomes. The continent’s present Judiciaries, enabled and ennobled by very transformative constitutions, have a duty to do better in public interest. This requires unparalleled judicial courage, unremitting judicial conscientiousness, and unimpeachable judicial integrity that is heavily grounded on constitutionalism and respect for the rule of law. This then begs the question of what caliber of Judges are required to address the myriad of challenges facing the emerging nations.
Besides competence, the Judges required to breathe life to the constitutions of emerging democracies must be men and women of valour and impeccable integrity. The Judges must courageously live up their oaths of office and ensure that “commitments, duties and obligations contained in the fundamental law of the land” are “scrupulously respected and enforced”, otherwise “political stability and [the] confidence required to attract investment” will be in jeopardy.17 The Judges must keep reminding the political class that constitutional power is constrained power.
Unless such actions and more are taken to address the issues raised above, the emerging nations will continue having constitutions without constitutionalism. And this is where I think the Oxford Union, our host tonight, comes in.
Institutions and organizations such as the Oxford Union, which is founded to nurture men and women of integrity, have a duty to produce leaders, professionals – including Judges – that would make this effort successful.
The founding of this venerable Union to fight for religious liberty, and to challenge the dominant ideas in society, encapsulates three important lessons: first, it is a reminder to students and young people all over the world that they have an inherent duty to challenge and change society where necessary. Second, it is a fitting reminder that conventional wisdom can be dangerous; and individuals of conscience and conviction, should never be prisoners of history afraid to take a stand, propagate a thought, or make an innovation that would transition humanity into a new and better course. Third, it is also testament to the fact that advances in human civilization are only made when new, difficult and uncomfortable ideas – such as the interface between religion and politics are openly debated and conducted within a framework of mutual respect rather than suppressed. To disagree is not to be disagreeable and the battle of thought and wit should never be a call to arms; instead, to borrow from Ernest Hemingway’s novel title, it should be a ‘farewell to arms’. It is the same logic that should guide the debate between religion and science, and the Templeton Prize seeks to achieve precisely this.
This founding philosophy of the Oxford Union finds resonance in my personal life as a man of faith, in my professional life as a jurist, and in the fusion of the two as a public servant.
In our daily conduct, everyone needs a decision-making framework, whether in their private or public lives. In my personal and public life, religion has provided a vital framework, allowing me to sieve through the complexities of life, and to chart a path that I consider conscientious, fair, and right in the eyes of God and man. I’d like to state that I’m a Seventh— day—Adventist (SDA) Christian; and that the bedrock of the doctrines of the SDA Church, as is the case with other Churches and faiths, is integrity in whatever one does.
As a Christian therefore, I understand that the authority the Kenyan people have delegated to the Judiciary, which I’m privileged to head, is a fiduciary authority to be exercised in absolute honesty with the Kenyan people; that I should always be guided by the facts of the case before me and the applicable law; and that in so doing, I must always remember that all are equal before the law and the principles of the animal kingdom have no application in our system; and that failure to do that would not only be hypocritical and a dereliction of my duty but also a heinous betrayal of the Kenyan people. That is my moral compass which, though I am a weak and sinful human being as everybody else is, I endeavor to follow in my decisions including the Supreme Court decision of September 2017 on the Presidential Election Petition.
The moral and ethical foundation of my faith is not different from the national values in our Constitution of ‘equity’, ‘social justice’, ‘non- discrimination’, ‘human rights’. My religious moral code is not in contradiction with Chapter Six of our Constitution on leadership and integrity. These are two mutuality reinforcing texts – texts that are not engaged in any ugly duel with each other, but rather in very beautiful duet that seeks to promote humanity’s social good. And that is why, when I lifted the Constitution, and placed my hand on the Bible, as I took my oath of office, I found a unity and unanimity of values and purpose in both texts.
After many centuries of struggle and war, the world presently enjoys religious liberty, the primordial human right upon which all other rights find their relevance, thanks to organizations like the Oxford Union. As I have already indicated, this has given humanity a value-based decision making framework characterized by empathy, ethics, custodianship and morality. We must, however, close the gap between principle and practice and make the benefits of religious liberty inform our daily lives. This is the challenge we must all confront: make the common ethical canonical bases of our faiths reflect in our public duty and conduct. I believe that a true believer’s religion should be one’s DNA and, effortlessly and as a matter of course, be reflected in one’s deportment and all actions as well as decisions. It is in the light of this that in May this year, after the Commencement Address at Andrews University, Michigan, I stated that, "There is no greater witness one can give for Christ than, by God’s grace, living out one’s professed faith.”
It would be a betrayal of those who have made significant sacrifices in the advance of religious liberty for the new generation to fail to use this freedom for the promotion of social good. Young people should not make religious freedom a passive freedom and fail to apply it actively for the creation of a better world. That is the lesson we learn from the lives and work of personalities like Mother Teresa, Martin Luther King, Mahatma Gandhi, and Martin Luther King Jr.
In conclusion, let me say this: In the wake of the challenges that abound, the world is seeking for honest leaders; the world is seeking for women and men with “actions that back up their words and words that are congruent with their actions”18; the world is seeking for people true to their core values; in a nutshell, the world is seeking for women and men of integrity. These are the ontological or “authentic” leaders19; leaders whose guiding principles are authenticity and being committed to something bigger than oneself. It is only with the emergence of leaders of this quality, and a citizenship enlightened to support it, that the world shall witness and guarnatee successful constitutionalism; vibrant and effective institutions, including the Judiciaries; and balanced state-faith relationship.
By David Maraga,
Chief Justice and President of The Supreme Court of Kenya
1 Kamotho Waiganjo—The Use of Specialised Commissions for Constitutional Implementation: An Insider View of the Kenyan CIC, in The Implementation of Modern Constitutions, Challenges and Prospects.
2 Y Ghai, “Kenyan Constitution: History in the Making: The Challenges of Implementation.” Pambazuka News (2010). Available at www.pambazuka.org/en/category/features/66501 (accessed on...
3 Y Ghai, Constitutionalism: African Perspective in The Giant Academic, Essays in Honour of H.W.O.Okoth Ogendo, at page 160
4 Y Ghai, Constitutionalism: African Perspective in The Giant Academic, Essays in Honour of H.W.O.Okoth Ogendo, at page 159-160
5 CKRC Final Report (2005), at p. 31.
6 Edwin Abuya, ‘Can African States Conduct Free and Fair Elections?’, Vol. 8 Issued (Spring 2010) Northwestern Journal of International Human Rights, p.123.
9 Edwin Odhiambo Abuya, ‘Consequences of a flawed presidential election’, Legal Studies Vol 29 pp127-158
10 Above Note 1.
11 Above Note 2
12 Communique of 252 Meeting of the Peace and Security Council of African Union held on 9th December, 2010.
13 Article 1(1) of the 2010 Kenyan Constitution.
14 The others are Independent Commissions established under the Constitution
15 Mutakha Kangu Constitutional Kaw of Kenya on Devolution (2015) Strathmore University Press, p.28-29.
16 Speaker of the Senate and another v Attorney General and others (2013) eKLR.
17 Charles M. Fombad, Problematising the Issue of Constitutional Implementation in Africa, in the Implementation of Modern African Constitutions, Challenges and Prospects, at p.14.
18 (Woofle, 2002)
19 Werner Erhard, Michael Jensen, and Kari Granger.