How will the new judges shape the law?
While the most immediate effect of Narc's coming to power has been to strengthen the President's hand in dealing with the threat of corruption, the most important long-term effect may be how the new High Court judges will shape the direction of Kenyan law .
There has been too much misleading rhetoric about corruption in the Judiciary. But in my view, the bigger question we have been overlooking is the ideological and philosophical background of those now coming into the Bench who will be interpreting our law. This, to me, is the real litmus test of where Kenyan jurisprudence will be heading.
Like in politics, there are two broad streams of judicial thinking. One is conservative, the other liberal. The convention has been that whether liberal or conservative, judges are there not to impose their own ideology, but to enforce the laws passed by others, including the supreme law – the Constitution.
The recently-appointed judges are a diverse lot. Some were picked from academia, others from the existing Judiciary, others from the Bar, and still others from the non-practising private sector. Some others were even acknowledged activists and NGO operatives. There is also one connected with the Church.
It stands to reason that they represent very different ideologies and backgrounds. We should therefore not be surprised if they arrive at conflicting judgments from time to time.
Conservative and liberal judges alike interpret the Constitution. The question is, what interpretation ought to govern?
The recent judicial appointments were done in two batches. The first lot were unmistakeably liberal in that their previous orientation has tended to be parallel to the status quo. A judge like Martha Koome (a feminist) cannot be described otherwise than as a liberal. It is the second batch of appointments which represents a mixed bag, with lawyers of a conservative bent seeming to be clinging on.
Conservative judges can be defined both by the ideas they hold as well as how they view their job vis-a-vis what they perceive to be the wishes of the appointing authority. By and large, they are uncomfortable in territory that could be threatening to that status quo.
The crucial thing to remember is that status quo lawyers did not disappear with the previous regime. New ones will step in. They, too, qualify to be called conservative like those of the past.
The disadvantage of judicial conservatism is its narrow and literal interpretations which usually blocks the overall development of the law. A controversial former High Court judge, Norbury Dugdale, is often cited as somebody who could strike down the Bill of Rights in his eagerness to administer justice in accordance with the wishes and feelings of the appointing authority.
The end result is to compromise the concept of separation of powers and independence of the Judiciary.
In common parlance, liberals are seen to favour an interpretation of the law that makes it progressive and relevant, as well as meaningful to the times we are in.
Such judges are not new. It is only that in the past, they were not in a position to hold decisive sway in the Judiciary.
Perhaps the most celebrated judicial liberal under the Moi era was the late Justice C. B. Madan. There have been others like former High Court Judge Frank Shields. Oddly enough, even former Chief Justice Majid Cockar, despite his conservative-looking demeanour, can qualify as a liberal, if one takes into account the difficulties the authorities faced in trying (unsuccessfully) to make him a judicial pawn.
It won't do to assume everything liberal is good. A tendency to transfer political activism to judicial activism can be negative. Some liberals also exhibit a weakness for over-excitement such as to stray too far into eccentric domains, like considering legalising abortion, for instance.
The greatest hindrance to justice in conservative judicial systems is the creed of obedience, a creed that sees justice only through the eyes of the appointing authority. Tied to this is the obsession to "hang on" to the job at whatever cost.
This obsession to "sell" themselves is what has cost many former judges, not only their jobs, but also their dignity. Some of them were known to pre-type their judgments (particularly when convicting opposition activitists), alter their rulings or give out heavy, cruel and inhuman punishments to political prisoners.
Therefore, it is not surprising at all that these self-same judges are now being paid back the proceeds of their anti-judicial decisions with little, if any, sympathy from Kenyans.
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Mr Adan is a practising lawyer in Nairobi
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