Constitutional Interpretation in Kenya

CONSTITUTIONAL INTERPRETATION

Constitutional interpretation is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. Courts usually apply various methods when interpreting a legal text. Some of these methods are: textual, historical, functional, doctrinal, prudential, equitable and natural.

• The textual method relies on the actual words of the legal text, if the meaning of the words is unambiguous. The rationale of this method is that, since law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed, then textual analysis must be in line with the intention of the lawgiver.
• The historical method is based on the understanding revealed by analysis of the history of the drafting and promulgation of the law.
• The functional method is based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system.
• The doctrinal method is based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the doctrine of stare decisis.    
• The prudential method is based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure.
• The equitable method, also commonly known as ethical, is based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide.
• The natural method is based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur.

The capacity of courts to evolve a coherent and principled approach to the interpretation of the Constitution is absolutely essential for the legitimacy of the Constitutional democracy. Certain scholars have championed the application of “neutral principles” in Constitutional adjudication. This approach opines that courts, in exercising their power of invalidation of laws on Constitutional grounds do not decide cases on general grounds of public policy or legislative criteria of importance. Courts are subject to a discipline of reasoning to which legislators are not bound: the disposition of Constitutional questions must be formidable in terms of some Constitutional principle that transcends the case at hand and is applicable to all comparable cases. Decisions cannot be ad hoc. They must be justified and perceived as justifiable on more general grounds reflected in previous case law and other authorities that apply to the instant fact situation. (See Wechsler., 1959. Towards Neutral Principles of Constitutional Law, Vol 73 Harvard Law Review p 1 . See also Richards, DAJ., 1977.  Rules, Policies and Neutral Principles: The Search for Legitimacy in Common Law and Constitutional Adjudication Georgia Law Review Vol 11 p 1069.)

Professor Githu Muigai has captured the challenge of Constitutional interpretation in the words that:

“First, the fact that the Constitution is both a political charter and a legal document makes its interpretation a matter of great political significance, and sometimes controversy. Second, the court’s interpretation of the Constitution by way of judicial review is equally controversial as it is essentially counter-majoritarian. A non-elected body reviewing and possibly overruling the express enactments and actions of the elected representatives of the people would raise the issue of legitimacy. Thirdly, however defined, the Constitution is an intricate web of text, values, doctrine, and institutional practice. It lends itself to different interpretations by different, equally well-meaning people. Fourthly, the Constitution contains conflicting or inconsistent provisions that the courts are called upon to reconcile, and at other times the Constitution implicitly creates a hierarchy of institutions or values and the courts are called upon to establish the order of importance. Fifthly, at times, the Constitution is vague or imprecise or has glaring lacunae and the courts are called upon to provide the unwritten part.”(Muigai, G., 2004. Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation, East African Law Journal, Vol 1 p 1.)

The above character of the Constitution makes the jurisprudence of the courts that exercise jurisdiction over Constitutional matters, and, therefore, the interpretation of the Constitution, to be of specific concern to a student of the judiciary and the judicial process.

4. THE PROPER APPROACH TO THE INTERPRETATION OF THE CONSTITUTION - TO BE LIBERAL OR TO BE RESTRICTIVE?

This issue had for some time remained (unnecessarily) controversial in the Kenyan constitutional litigation history.

Many jurisdictions with a common law tradition defined the approach that should be adopted while interpreting a constitutional text fairly long time ago. The Privy Council in the case of Minister for Home Affairs and Another Vs Fischer([1979] 3 All ER 21) while interpreting the Constitution of Bermuda stated that:

“a Constitutional order is a document sui generis to be interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation… It is important to give full recognition and effect to those fundamental rights and freedoms with a statement, which the Constitution commences.”
Lord Wilberforce, while delivering the considered opinion of the Court observed;

“A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to the language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.”

In spite of other jurisdictions allowing their citizens to draw the fruits of such purposeful interpretation of the Constitution a long time ago, in Kenya, the grasp was of a different character. For some time, courts insisted on interpreting the Constitution like any other statutory text. In R Vs Elman [1969] EA 357 the late Chief Justice Kitili Mwendwa expressed a basic conservative creed in Constitutional adjudication and interpretation when he stated that “in one cardinal respect, we are satisfied that a Constitution is to be construed in the same way as any other legislative enactment.”(The case involved a charge against the appellant made under the Exchange Control Act. The applicant was compelled to give certain information in an official form which tended to incriminate him. He sought to rely on Section 77(7) of the Constitution as protecting him from self-incrimination. The court in rejecting that argument held that the appellant was only protected from self-incrimination at the trial itself and not during interrogation.)

The recognition of the sanctity of the Constitution and its special character calling for special rules of interpretation was captured in the decision of the High Court of Kenya in the case of Anthony Ritho Mwangi and Another Vs The Attorney General Nairobi High Court Criminal Application No 701 of 2001 where the court stated:

“Our Constitution is the citadel where good governance under the rule of law by all the three organs of the state machinery is secured. The very structure of Separation of Powers and independence of the three organs calls for judicial review by checking and supervising the functions, obligations and powers of the two organs, namely the executive, and the legislature. The judiciary though seems to be omnipotent, it is not so, as it is obligated to observe and uphold the spirit and the majesty of the Constitution and the rule of law.”

In Kenya, there has been a raging argument that the Constitution should be interpreted as a living document, and not like an Act of Parliament. According to Justice Ringera, the Constitution:

“is the supreme law of the land; it is a living instrument with a soul and a consciousness; it embodies certain fundamental values and principles and must be construed broadly, liberally and purposely or teleologically to give effect to those values and principles (cited from Njoya and Others v. Attorney General and Others [2004] LLR 4788 (HCK)).”

Justice Kasango supported this position. Cited section 3 of the former Constitution, he posited that “[t]he Constitution of Kenya having so clearly stated its supremacy means that the rules of interpretation cannot be the same as other statutes which are subordinate to it”. These words were echoed in Njogu v Attorney-General to the effect that:

           

We do not accept that a Constitution ought to be read and interpreted in the same way as an Act of Parliament. The Constitution is not an Act of Parliament. It exists separately in our statutes. It is supreme…it is our considered view that, Constitutional provisions ought to be interpreted broadly or liberally, and not in a pedantic way, that is restrictive way. Constitutional provisions must be read to give values and aspirations of the people. The court must appreciate throughout that the Constitution, of necessity, has principles and values embodied in it; that a Constitution is a living piece of legislation. It is a living document.

In Ndyanabo v. Attorney-General, Samatta CJ of the Tanzanian Court of Appeal held:

“We propose to allude to general provisions governing constitutional interpretation. These principles may, in the interest of brevity, be stated as follows. First, the Constitution of the Republic of Tanzania is a living instrument, having a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must, therefore, endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in (tune) with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and the rule of law. As Mr. Justice EO Ayoola, a former Chief Justice of the Gambia stated … ‘A timorous and unimaginative exercise of the Judicial power of constitutional interpretation leaves the Constitution a stale and sterile document’. Secondly, the provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed.”

Further lack of doctrinal clarity on this issue emerges in the case of R.M. (Suing Thro’ Next Friend) J.K. Cradle (The Children Fund) Millie and G.A.O. VS the Attorney General RM (a minor) & 3 others v Attorney General [2006] 2 KLR 697

“In this regard while conceding that some of the reasoning in the case of REPUBLIC v EL MANN 1969 EA 357 have been substantially overtaken especially in the interpretation of the Constitution, one important principle remains intact, that the words of the Constitution or a statute should be accorded their natural and ordinary sense. This is the path we have chosen in the circumstances of this case. … Of course the El Mann principles have quite rightly been buffeted or shaken by the powerful winds of broad and purposive approach in interpreting the Constitution together with the living tree principle of interpreting the Constitution but except in exceptional cases where these two approaches apply the above principle still reigns supreme. The situation where a living spirit has to be injected into the Constitutional provisions, include, where the language used is likely to lead to unjust situations. Even where the living tree principle of construction is invoked the nourishment given must originate from the roots, the trunk and the natural branches. The court would not be entitled to disregard the roots, the trunk and the natural branches in the name of giving flesh to the Constitution, or to graft in, its own artificial branches. The living tree is sustained by the tree and any grafting is likely to be rejected.

By all means let the courts be innovative and take into account the contemporary situation of each age but let the innovations be supported by the roots.
In this regard we endorse fully the presumption of Constitutionality which was powerfully expressed by the Supreme Court of India in the Hamdarddawakhana v Union of India Air 1960 554 where the respected Court stated:

“In examining the Constitutionality of a statute it must be assumed that the legislature understands and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enacts laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment.”

What the court appears to have been saying was that the Elmann doctrine was partly applicable and partly not applicable in Constitutional interpretation in Kenya. That was an ambivalent position. What, however, is outrightly not satisfactory is the court’s reliance on the case of Hamdarddawakhana which was expressly concerned with the interpretation of legislative enactments as opposed to the constitution? Such is the lack of doctrinal clarity that this paper bemourns. 

From the foregoing, one discerns the jurisprudence that in interpreting the Constitution, the court should attach such meaning and interpretation that meets the purpose of   guaranteeing Constitutionalism, non-discrimination, separation of powers, and, enjoyment of fundamental rights and freedoms. 

The High Court has added further support to this position by the dictum that:

“The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones” (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819; (2008) 3 KLR (EP) 325)

A cursory digest of the decisions from the courts tasked with interpreting the Constitution reveals that rarely, if at all, do courts set out these principles as their guiding principles in determining questions before them.

The above digest of various decisions reveals basic doctrinal weaknesses in the Kenyan judiciary. Yet the more the cases one looks at from the Kenyan judiciary, the gloomier the situation looks. The so-called “neutral principles” that are expected to guide Constitutional principles have been conspicuously ignored in the quest for the proper approach to Constitutional interpretation in Kenya.
The golden thread, however, is that courts have consciously or otherwise, attempted to lean towards the so-called liberal interpretation of the Constitution which is in consonance with trends in other progressive democracies. 

The Court of Appeal is currently ruling on the case in which lobby groups sought a determination on the date of the next General Election. Justice Martha Koome has ruled that the polls should be held on or before January 15, 2013. The judge ruled that Parliament’s life should not exceed a five-year cycle.

Justice Koome said the House should be dissolved on November 14, 2012.  

She ruled that the High Court misinterpreted the Constitution and the two alternatives given by court were unconstitutional. The judge declared them null and void.

Justice Koome said the President has no powers to dissolve Parliament.

THE (ILLETERATE) ELLITE SOCIETY, OF SOUTHERN OF SAHARA DESERT

“Remember you have to submit your article today for editing. I know at times writers feel like they can’t do it but you can’t afford to let yourself feel that. You have to come up with this week’s article for editing before evening”. That was the text I received from my editor this morning at around nine o’clock. I was still in bed and it’s like she read my feelings, I didn’t even have an idea on what to write on my column this week.  The whole of Kenya has been talking about the “afro cinema” drama of “come baby come” as directed by one Miguna Miguna. From mainstream media to social networks, this has been the talk.  It is time to tackle other issues.

 Lately I have been asking myself, “Why should I write? After all they say “if you want to hide something from Africans put it in books.” Yet my main target audience is Africans. Then on the same line of thought, I got an idea. This week I’m going to discuss the other side of that old phrase.

 Today I want to prove to the entire world that it was not meant to say that Africans don’t love books. Primarily that could have been the meaning, but my far searching eyes show me a dipper meaning; after all phrases have an outer and inner meaning. This phrase has for a long time been misunderstood by students, scholars and professionals alike in Kenya. They knew that this was the best way to trick and put Africans in the dark, and yes they succeeded.

The developer of this phrase was so smart. It served two purposes. The first was to get Africans to read the books and develop the reading culture. Secondly it was to hide the truth from the Africans after developing the reading culture. They knew Africans don’t read between the lines, they don’t ask questions, they hardly criticise and if they do it, they do it to a minimal extent, not the mano a mano thing that the Arab Pangaea does. I think this has been the weapon of many African scholars to manipulate their people in politics and development.

As the Miguna afro cinema was going on last week, I was arguing with some fellow learning friends during a meal. They said that they had read Sarah Elderkin’s response to Janyando’s book. One of my friends is a strict book by book word by word reader “cross the t and dot the i” kind of person. This day he was supported by many other except one of my mentors whom we often share many opinions. Now let me prove to you how this phrase works superbly. First they did not even know who the author of the article was; they did not know her background, who she worked for and why she was writing that rebuttal. Yet they claimed that they had new knowledge, which I don’t dispute. What they didn’t know is that it was false and vendetta knowledge.

 They went on to argue on the Justice Warsame’s judgement in the same article that was filled with what i would call sarcasm. They claimed Warsame was a good judge and couldn’t give a “bad” judgment. When i went back to research on the judgement it was replete with numerous Grammatical, typographical, factual, logical and legal errors. I would be forgiven if I said that it was written by an intern student. It portrayed what I said on my previous article on the judiciary; we have a long way to go. This just proved to me the African reading culture. What I call learned, misguided, nincompoops’ elites. Yet to them this was their best argument.

 Kenyans have a trend of following our columnist especially political columnist blindly. We never want to know the true argument or why they do it. For instance, someone came and told me that Makau Mutua is one of the best columnists because he says it as it is. People who know Mutua and have been keen followers of his articles might not agree with this statement. Mutua is turning out to be a psychofant, an attention seeker. In 2003, he categorically stated that he did not believe in Raila what makes him believe in him now? Just two weeks ago I found it impossible to read his article because he portrayed a different picture of the same Raila he had portrayed before. Professor, are you feeling pity for Jakom after his votes were” stolen”? Why don’t you stick to your strong opinions anymore? Why don’t your articles claim that what you write are your personal views? Do you represent other people’s views in your letters and columns?

 Sarah Elderkin is on Raila’s payroll. She is currently the writer of his speeches and all communication items. On May 19, 2011 she wrote of Miguna: “But first I need to say that I know Miguna and I have worked with him. I have found him intelligent, well-read, well-prepared, honest, stalwart, upright, hardworking and supremely committed to what is good, proper, right and just. I also know he is impatient and highly vocal about anything that contravenes these values, and that he does not suffer fools gladly. About his style of operation (never the substance), he and I have in the past had rather lively discussions. But I have learned to respect Miguna.” Is this not her? Why has she changed her mind now? Would she have done it hadn’t the book been published? Sarah is a puppet!

Ahmednassir Abdullahi, the Holier than though advocate, famous for uncovering “rumours”. One of his good friends is Caroli Omondi, are those people who represent change? How many times has he been sued by people like Janyando and paid them due to defamation? Arrogance and vendetta is always the motive of his articles. Look at Kwendo Opanga, Vincent Makali, caroline Mutoko, Clay Muganda and Mutahi Ngunyi who make themselves look like “fathers” of political science but is what they say mostly true. Don’t you guys sense an arrow of falseness in their columns? Don’t you sense biasness?

"The press as a player in the field of democracy has a responsibility to convey truthful information about candidates and their policies to enable citizens make informed choices." So says P.L.O.Lumumba and I agree in totality. Most of our columnists are quacks, bloviating, shambolic, wobbly, cowards, confused, opportunistic and deceitful. They take advantage of our poor reading culture to twist our minds to believing what they want us to believe. They are paid to deliver what is not there, we must take preternatural circumspection while reading and digesting what is there. We may end up making uninformed decisions that we will regret in future. Our columnist must be like Boy Scouts and Girl Guides. But this is the direct opposite, our columnist suffer from amnesia and change views like they do their shirts. We must be very careful with our columnist.

 I may not agree with Joseph Momoh of Sierra Leone on many things, but I do on one thing, that a Journalist with a pen in hand is like a soldier with a Kalashnikov in hand, he can use it to defend or to destroy. If this columnists and analysts are the opinion shapers, then Kenyans need to start reading between the lines and not nodding their heads to everything said like its gospel truth. We need to grow to a point on independent mindedness where we rely on no one but self to make critical decisions about our country.

 Let us stop behaving sheepishly because we were told it is hidden in the books. Let me solve this puzzle, I now have the missing piece. The book is the first piece, logic and criticisms are the missing pieces. Try it and you shall see, isn’t the cross word done. Yes you just won it. I think I deserve a “Nobel” for this “invention” to Africans. I have nothing new to teach the world. All I have done is to try experiments in both on as vast a scale as I could.

The columnist S.N.John; is a student of law at Africa Nazarene university, the vice chair of LAANU, a prospectus columnist and political analyst. The opinions written in this column are for the writer himself and not in anyhow that of Africa Nazarene University or LAANU, if they are it is a mere coincidence. The opinions given are impartial and no personal vendetta has been expressed. The writer has proof of the facts given and is ready to adduce any evidence if required to do so.

PEELING BACK THE MASK; CHAPTER SIX AND INTEGRITY TEST.

“I suppose leadership at one time meant muscles; but today it means getting along with people.” Mahatma Ghandi once said so and today I see it replicate, but this time far way from Calcutta. This time it is southern of Sahara desert. Every place you set foot on Kenyan soil, some words will always be mentioned if politics are involved and the election to come is the debate. These set of words are either chapter six of the constitution or the word integrity. They have become the modus operandi. Kenyans have been fooled by the fact that this integrity thing will help them get good leaders. This is a comic strip in a constitution. (Gagagagaga) (Baby laugh). You must be joking Kenyans am sure you are not serious, are you? But if you are, let us go and check it again. This is more than a joke, putting your hopes in it? First I declare to you that this chapter is what in a manner of speaking I can say it is;” a fish bait in a pond full of sharks”. Chapter six together with the political parties act have stated categorically that all these people can only be stopped from vying for office only if all avenues of appeal are exhausted. A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted. This is a clause repeated in both the political parties act article (26) and the constitution article (99)

Kenyans let me kill your hopes in a rhetorical manner. How long does an appeal in a court of law take to be established? With five judges of the court of appeal down, how much longer will it take? How much more time do we have remaining to go for the election? When is the vetting starting? Did you know parties are supposed to submit their candidates for election three months before the election date? How many cases of public officers do you know who have been found guilty or their appeal rejected? How many people are willing and bold enough to come up just like Miguna Miguna and expose these people or testify? Is chapter six an independent chapter or dependent on other chapters and acts of parliament? Is chapter six going to be implemented retrospectively? You know that disbarring these politicians will be almost impossible? You know the answers to these questions guys?

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Chapter six will set a very wrong precedence to the leadership of this country. You don’t just measure integrity by what people did in the past. This is going to haunt people with events they did thirty years ago. We don’t need this article of limiting people to work. This is just a waste of public funds. In fact it will not disbar the mighty, so why do it anyway? The constitution has provided us with avenues of recalling our leaders if they don’t work up to task. Let them come and judge them from what they will do henceforth, we cannot work retrospectively. That is being punitive and not exercising integrity. We know who has integrity and who does not, we know the lyrical sycophants at the King’s court, we know the mediocre and the shambolic leaders, we know the looters of yester-years assume they have undergone a Pauline conversion because they are in opposition and oppose the Government of the day, we can create an modus vivendi with our votes to work it out with them. Let Kenyans use the power of the vote to vet out these people. A small click of people called vetting board should not limit leaders for Kenyans. Let democracy be fully not partly. A nation's culture resides in the hearts and in the soul of its people.

Most of you will not agree with me now. I am ready for that for I know, first they ignore you, then they laugh at you, then they fight you, then you win. An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.  I understand, only few people like Janyando and I are meant to see far and see the future. But after the vetting is done and the general elections are over I will raise the same questions that I raised today. Let’s make it right now or I will win this bet with Kenyans. I do not want to foresee the future. I am concerned with taking care of the present. Kenyans let us not put our hopes in chapter six it will fail us, our votes are the ultimate hope. By the way have our votes ever failed us? God has given us lemon, let us not ask for oranges. Let us make lemonade.  Let us therefore not lose sight of the antelope for the squirrel. In matters such as these Kenyans, that’s when we can prove to the entire world that it is the dog that wags the tail and not vice versa.

I know we are looking forward to the disbarring of leaders by the integrity test of chapter six and metaphorically speaking, from the Egypt of impunity misrule to the Canaan of integrity leadership; but I have my doubts fellow countrymen and women that those hopes we have in chapter six are a rhetoric that may fail us, and I repeat it is a fish bait in a pond full of sharks. Kenyans, the Joshua who will lead us to this Canaan of integrity and “clean leaders”, that we so wish, hope and pray for are our votes.

The columnist S.N.John; is a student of law at Africa Nazarene university, the vice chair of LAANU, a prospectus columnist and political analyst. The opinions written in this column are for the writer himself and not in anyhow that of Africa Nazarene University or LAANU, if they are it is a mere coincidence. The opinions given are impartial and no personal vendetta has been expressed. The writer has proof of the facts given and is ready to adduce any evidence if required to do so.

This weeks article will be on chapter six of the constitution integrity and leadership watch it out, it will analyze the whole integrity system and as usual criticize all that is required. This Wednesday

DARE NOT LIMIT MY FREEDOM, THE LAW ACCORDS IT CLEARLY

33. (1) Every person has the right to freedom of expression, which

includes—

(a) freedom to seek, receive or impart information or ideas;

(b) freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

(a) propaganda for war;

(b) incitement to violence;

(c) hate speech; or

(d) advocacy of hatred that—

(i) constitutes ethnic incitement, vilification of

others or incitement to cause harm; or

29

(ii) is based on any ground of discrimination

specified or contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every

person shall respect the rights and reputation of others.

Today I had to go back and check if I had lost touch with my knowledge on the constitution. To my understanding article thirty three of our constitution (shown above) could have changed, only to be mesmerized that it was still the same. Last month I was a moderator at a forum on youth and democracy, and at the end of the speech I said that the old folks past the “age of God”; which to my understanding of the Bible is seventy years, should not hold any public offices. This was just a sarcastic manner to express it but I at the same time meant it. After that I received several word lashes from fellow learning friends, the church and the public including some elites that I so much respect. They said that my choice of words was wrong and that I was not entitled to say such a thing. You may be surprised when some of you read this article; I was not touched by any of your words, I did not feel a thing because I knew I had done nothing wrong and that I had just done what my freedom requires me to do. I had just expressed myself and what I felt was good for this country. One of my criticizers called me arrogant, rude and a person with personal vendetta. I told her that given another platform I would say the same thing and today I repeat it; “Old leaders should not have a place in Kenya if this country is to realize her full potential towards sustainable development” I am not sure if that is moral, but who said the law is all about morality. I may have failed in that morality test but legally I was very right. No one can limit my freedom to the extent the law provides me with it. Why should I limit myself if the law allows me to do it; we would rather have no such laws on freedom of speech at all! Freedom is not worth having if it does not connote freedom to err.

This trend has now moved nationally it is no longer in that small cocoon of mine.  When senior advocate Ahmednasir Abdullahi said that the government is just playing a “looking pretty game” by making a forty billion road that the only purpose it serves is transporting pineapples, yet the main importation road was a wreck, the president lashed at him. He was purported to spread propaganda and hate speech. Truly is that hate speech. That is a mere fact that any Kenyan needs to look and see it. Why was he just threatened and no action taken. When John Githongo came out and said that he would give information about the government malicious working in Anglo leasing scandal, he was silenced and even forced to leave the country for security purposes. Where is the same government of the people who call themselves reformers currently protecting, upholding and dispensing the same constitution? They are still the same people. But with different formulas of silencing people who are exercising their constitutional rights and freedoms.

The new trend of freedom of speech limitation in our country today is that of abuses and being threatened to be summoned by the Mzalendo Kibunja’s commission. Jirongo came out and said that statehouse was funding some political aspirants. This was not the first time this had been said. The only difference was that previously no specific person had done it but all along it was in the public domain. When Jirongo did it the president came out abusively on public press; “bloody bure”. The state house claims Jirongo is spreading propaganda yet Jirongo has given them the go ahead to sue him or compel him to substantiate his claims. Since then we have never heard from statehouse or anyone else trying to threaten Jirongo.  Kenyans, why can’t we read in between the lines that people are trying to silence us “smartly”, when are we going to stop begging and humbling for what belongs to us? . I am sure you expect me to talk about MRC but I will not you can reflect it on your own.

Our country must morally re-arm. We cannot run a country where virtue is vice and vice is virtue. Kenyans it is the high time that we realized that this fundamental freedom of speech is not something we should fear when exercising it. You should not fear being subjected to anti- reform talks. As for accusations even the divine Jesus of Nazareth was accused of many things; even Martin Luther King Junior was accused of many things; even Mahatma Gandhi was accused of many things. But it is our duty to prove our detractors wrong by our actions. We must stand out for our freedom of speech. A 'No' uttered from the deepest conviction is better than a 'Yes' merely uttered to please, or worse, to avoid trouble. Even if you are a minority of one, the truth is the truth. Freedom is never dear at any price. It is the breath of life. What would a man not pay for living? Kenyans our freedom of speech is much more power than we imagine. In a gentle way, we can shake this country.  Today I proclaim to this nation that article thirty three was meant for you and I, and we should stop at nothing while expressing ourselves under its parameters. I repeat “While it is good to be both nice and right, in this case I prefer to be right rather than nice.” Our freedom of speech has been wrongly used, abused and misused but we should not allow being confused that we are not fully entitled to it. I think it is time you learn from  Miguna Miguna and I.

The columnist; John.S.N is a student of law at Africa Nazarene university, the vice chair of LAANU, a prospectus columnist and political analyst. The opinions written in this column are for the writer himself and not in anyhow those of Africa Nazarene University or LAANU. The opinions given are impartial and no personal vendetta has been expressed. The writer has proof of the facts given and is ready to adduce any evidence if required to do so.

“CLEANLINESS AND INDEPENDENCE OF THE JUDICIARY” A FALLACY!!!!

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  Charles Baron De Montesquieu may have come up with a very good framework of independence of the judiciary long before Kenya knew that she would ever attain her independence. His main logic was the need to have fairness in administration of justice, which could be achieved via independence of the judiciary. I wish he was here today to teach us these methods because it seems to me that they remain a mere rhetoric to Kenya. One word that comes into the mind of any reasonable man (as the law would want to identify people as such) about the judiciary of any government is how clean and independent the judiciary is. How stable it can run on its own without looking for support and stability from other government units in its quest for administration of justice. Ever asked why everyone these days cries for this “independence” thing. I don’t tend to understand it, but to me the people who mostly cry for it are those who tend to think that they are oppressed yet they have the power and capability. Sorry to say, but women and other lazy minority groups such as youth seem to exhibit this a lot in the name of fairness. Yet when they are left to walk alone they come back crying to be accommodated by the same people they demanded independence from. Do they really understand the meaning of that term?

That aside for so long we worked towards the independence of the judiciary and its cleanliness. It is very true that of the three arms of government the judiciary was a real mess. The restructuring of the judiciary saw the coming in of many civil society persons whom for a long time had been transversing the streets fighting and shouting in insanity about the same government that they now serve. We have now given them a chance to work what they felt had not been worked. Dr Willy Mutunga the CJ, Nancy Baraza DCJ currently suspended,  Lady Justice Njoki Ndungu are just but a few newly appointed judges from the civil society. Who said cleanliness of the judiciary is about civil society? Give me a break Kenyans! That is where we went wrong about the whole of this judiciary thing and trust me we will regret it. The amount of noise you make and the many times that you appear on our television screens chanting all manner of words does not mean you are the right person for the job.  True reformers are judged by history not what they say, purporting to be a reformer and yet we don’t know of an institution that you have headed to reform. The tiger does not shout about its tigritude, you see the skeleton of an antelope and you know that some tigritude has emanated, let us follow your footsteps and let history be your judge. It takes more than a sober mind to administer justice and ensure the right systems in place. Look at the greatest judges of the world; Lord Denning M.R, Former American jurist Wender Holmes and Lord Atkinson. Who of them was a civil society member, and was justice administered? Furthermore I have never heard of any of them who pointed a gun to anyone and threatened a life just at mere provocation. An administrator of justice needs not to have a fixed or made up mind of their own. An administrator of justice is who accommodates all ideas and rules from the law or the facts. I doubt that this “civil society judges” will do it.

I want to congratulate the persons who came up with article 160 of the constitution. It is quite a good job and the entire drafting of the whole chapter on the judiciary especially limitation of it powers; independence and accountability are works to give an applause for. However they are just words in paper and if not implemented correctly we will have nothing to write home about this same sketch that has been designed. Let us take a look at some of the aspects of independence that come out clearly in appointment. The president approves the names given to him by the judicial service commission and later forwards the names of those judges to parliament for further approval. The rot begins with the judicial service commission. How do you let the cat look after the mice? Look at the people who it comprises of. The names in the judicial service itself are a wreck. Some are political minded activist who are there to gain fame for their writing and criticism trying to show their holiness than though attitude, the former and latter Attorney Generals are all related to scandals and government psycho fancy, some have allegedly forged their pupilage admission to the bar and taken more than enough from their clients, one of the former judges sitting in the commission was recently fired from office because of corruption, the chair of the commission is a former activist. If you think am making up my own stories check on Ahmednasir Abdullahi, Amos Wako, Githu Muigai, Riaga Amolo and Dr. Willy Mutunga. What good appointments are going to come out of such a commission, tell me Kenyans what? The commission that has been formed to vet the magistrate and judges as part of the cleanup commission is headed by Rashid Rao. He is the former deputy director of public prosecutions who is once on record stating that he doesn’t know of a law that says you cannot detain someone for more than twenty four hours. Currently he is the same person who chases Riaga, Okubasu and Bosire for leading in the same dictatorial manner of detaining people without trial, is that even logical?

 You think it is only that? Now let me shock you; let me remove the cobwebs that have been put before you by this independence and reforms words. Another aspect of the judiciary independence is the funds that are allocated to it. I also have the same belief that such fund should be there to ensure units such as treasury do not blackmail them or make them their subordinates. But that does not justify the asking of eighteen billion and the complaining when getting the fifteen billion that is more than enough. I am longing to see the way the chief registrar will explain the usage of that money in the judiciary fund to parliament. When the newly appointed judges came in there was a salary increment of 300percent, the magistrate said they would go for a strike and 100 percent was given to them. What was that for? Is justice now bought for money? If I were in the position of Willy those salaries of judges should have remained the way they were after all there was more than enough. The magistrates’ salary is what should have been raised. This would have been the clear cut to show the true administrators of justice and those who come for it for the sake of the good package. That is what is happening in America today Judges are quitting and joining lawyers, and then from there we can tell the true noble judges. A Renowned city lawyer Prawvin Bowry argues the judiciary fund point in a, manner that impresses me. He asks where does the money gained by the courts in filing suits taken to? To file a suit in the high court of Kenya today is not less than Seventy thousand Kenya shillings, take a look at the bonds and fine the courts acquire from daily proceedings. Where is that money? Why can’t we use the same and reduce the judiciary fund for other judicial matters such as witness protection and legal aid which are a big problem at hand. In the utilization of public resources allocated to us we must emulate the Stoics and Spartans of old.

 The judiciary is said to vest its powers in the constitution and derive them from the people of Kenya and is not subject to any body about its decisions and judgements. Justice Nicholas Ombija delivered a judgement banning the Sudanese President Omar Al- Bashir from setting foot in Kenya. His Judgement was fought left, right and centre by the, executive to the extent of the AG writing to the Sudanese embassy that the judgement is bogus and the president is still welcomed. That alone is not enough just last week Lady Justice Mumbi Ngugi of the constitutional department gave a judgement on the wrong interpretation of the constitution by the president, during the appointment of the county commissioners. Hours later the president through state house head Francis Kimemia and the Ag said that such judgement is wrong and the county commissioners should remain in office. Of all people the Attorney-General who is a member of the JSC, a part of the judiciary is one person who should know about the appeal avenue and should have done the same for that judgement. What independence is there if there is no upholding of the rule of law through judgements of the judiciary? What they are doing is cleaning and stepping on it with muddy boots before it dries. In matters such as these we cannot but say that it is the dog that wags the tail and not vice versa. I can assure you many such scenarios are going to be seen more often in this new constitutional dispensation and the judiciary shall do nothing about them if they continue with the same way they are working.

The ministry of justice and constitutional affairs headed by presidential aspirant Eugene Wamalwa is also an abyss. The minister is rarely there for official matters. He is always moving from one place to place selling his party for the next general election. How is the judiciary going to work with such a guy? His biggest friends are those who where and still are opposed to the new constitution. How is he going to ensure fair dispensations if the people he works closely are opposed to it? Just a question, they say show me your friends and I will show you......It is when the boat approaches the shore that it capsizes; we must therefore tread with preternatural circumspection in these last phases of the Constitution dispensation Process.

While it is good to be both nice and right, in this case I prefer to be right rather than nice. I will not embrace cheap heroism by pretending to be a fire eating pseudo-revolutionary. I prefer to be called names but I will remain a servant of my conscience and a warrior for truth and justice. I am sick and tired of what I hear of this judiciary independence and cleanliness. So far I can dare Mutunga to come out and show the zeal and zest that he promised in the quest for perfection of administration of the judiciary. J.F Kennedy said that a good builder is he who when called to build best builds the greatest. The judiciary was only asked to build well it has done more than worse and I doubt if the construction will ever end. The road ahead is still tricky and will require a lot of patience, tolerance and level headedness. It is time they started working or they left. I tell you fellow countrymen there is nothing to write home about the Mutunga’s judiciary, its purported cleanliness and reforms.

The columnist; John.S.N is a student of law at Africa Nazarene university, the vice chair of LAANU, a prospectus columnist and political analyst. The opinions written in this column are for the writer himself and not in anyhow those of Africa Nazarene University or LAANU. The opinions given are impartial and no personal vendetta has been expressed. The writer has proof of the facts given and is ready to adduce any evidence if required to do so.