{"id":437621,"date":"2011-06-07T12:43:33","date_gmt":"2011-06-07T12:43:33","guid":{"rendered":"http:\/\/www.ghanamma.net\/2011\/06\/07\/fear-and-loathing-of-a-liberal-supreme-court\/"},"modified":"2011-06-07T12:43:33","modified_gmt":"2011-06-07T12:43:33","slug":"fear-and-loathing-of-a-liberal-supreme-court","status":"publish","type":"post","link":"https:\/\/www.ghanamma.com\/2011\/06\/07\/fear-and-loathing-of-a-liberal-supreme-court\/","title":{"rendered":"Fear And Loathing of a Liberal Supreme Court"},"content":{"rendered":"
\n
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\"The<\/a><\/p>\n

Caroline Gachiengo<\/p>\n

5 June 2011<\/p>\n

\n

Nairobi \u2014 Under traditional English common law, according to the principle of “coverture,” husband and wife were one person. A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband’s wishes, or keep a salary for herself.<\/p>\n

If a wife was permitted to work, she was required to relinquish her wages to her husband. In certain cases, a woman did not have individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for or against each other.<\/p>\n

It is this principle that prompts Charles Dickens’ character, Mr Bumble in the 1837 novel Oliver Twist, when informed that “the law supposes that your wife acts under your direction,” to declare: “If the law supposes that …”the law is a ass–a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.”<\/p>\n

Truth be told, the law is an ass because it supposes nothing. It must be interpreted by our finest legal minds if it is to serve its purpose and intent. Therein lies the root of the heated debate over the appointment of Kenya’s Chief Justice, the individual who will be at the helm of interpreting the new Constitution for the benefit of all Kenyans and responding to the long overdue cry for judicial reform.<\/p>\n

Personality vs Capacity<\/strong><\/p>\n

The most vocal criticism of Dr Willy Mutunga, the current appointee to the position of Chief Justice, is that he spots an ear stud, is in the midst of a second divorce, and is a supporter of gay rights. The deep seated fear the conservatives feel runs much deeper than his ear stud, for even if he were to consign it to a drawer in his house, never to be retrieved, that would not shed his core liberal leanings. And it is the liberal or conservative stance of the highest court in the land that will determine the interpretation of the most controversial clauses in the Constitution such as abortion, and the protection of individual rights of all Kenyans, including gay rights.<\/p>\n

The criticism on one hand and support on the other for Dr Mutunga’s appointment as Chief Justice speaks volumes about the opening up of Kenya’s democratic space to allow for a diversity of voices to be heard. This is what our new Constitution has at its core, and it would be foolhardy to suggest that these opinions should not be voiced.<\/p>\n

That said, the selection of the individual who will be at the rudder of judicial reform is neither a political nor a religious matter and with good reason – the judiciary must remain separate and independent from the other two branches of government as well as from the Church.<\/p>\n

Negative reactions to an appointment are not unusual. For example in the United States, when Louis Brandeis, the first Jewish nominee to the position of Justice of the Supreme Court was appointed in 1916, Justice James Clark McReynolds refused to speak to him for three years, and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to Court members on their retirement. When a second Jewish Justice, Benjamin Cardozo was appointed, McReynolds pointedly read a newspaper muttering “another one” during his swearing in ceremony. He did not attend the swearing in ceremony of the third Jewish Justice, Felix Frankfurter, and is reported to have exclaimed “My God, another Jew on the Court!<\/p>\n

Negative reactions however are unlikely to floor a capable Chief Justice who, given the powers vested in the Supreme Court, should be comfortable with issuing decisions that may be unpopular with the other arms of government, as well as religious and other institutions if it is necessary to uphold the Constitution.<\/p>\n

Supreme Court powers<\/strong><\/p>\n

The Supreme Court, to be composed of a Chief Justice, Deputy Chief Justice and five other judges, has exclusive jurisdiction to interpret the Constitution and its decisions are binding on all other Courts. The Chief Justice holds tenure for up to 10 years or until he reaches the age of 70 years and can only be removed from office for reasons specified in the Constitution such as physical or mental incapacity, a breach of the judges’ code of conduct, bankruptcy, incompetence, or gross misconduct, and even then, the removal can be initiated only by the Judicial Service Commission and adjudicated by a tribunal. Dr Mutunga is 64 years old and having emerged the top candidate following a stringent vetting process, currently suffers from none of these incapacities. All concerns so far point to his liberal leanings and the resulting apprehension over what a liberal Mutunga Court portends.<\/p>\n

Secular Constitution<\/strong><\/p>\n

Historically, the Church has played a major role in defining the country’s national values. Kenyans have looked to the Church for guidance in both social and political matters, and the Church has had its say on a diverse breadth of subject matter, ranging from human rights, to multiparty politics and corruption. Enter the new Constitution with its clear delineation of matters secular and religious, and it is no wonder that the country is thrown into a quandary over the least painful method to draw the line between law, morality and doctrine in a country so desperately seeking reform but also strongly grounded in conservative cultural values.<\/p>\n

The concept of separation of church and state supports the guarantee of freedom of religion, while acknowledging that the country is home to diverse peoples with varied beliefs and value systems. Kenya’s Constitution states that “there shall be no State religion” and goes on to expound that “every person has the right to freedom of conscience, religion, thought, belief and opinion.”<\/p>\n

According to the latest statistics, the religious makeup of Kenyans is 45 per cent Protestant Christians, 33 per cent Roman Catholic, 10 per cent Muslim, 10 per cent Indigenous religions, and two per cent Other. The Constitution is the great equaliser, and protector, guaranteeing each individual, whether they are a member of a majority, minority or no religion at all, the right to worship, protection from discrimination on the basis of religion, and not to be compelled to act contrary to their belief system. In sum, the Constitution prevents the holders of a majority religion from dictating its value system on individuals who would differ.<\/p>\n

In other parts of the world, the reality of separation of church and state has been actualised over many decades. For instance, under the United States Constitution, the relationship between religion and government is defined by two clauses: The establishment clause, which prohibits government from making laws that either inhibit or enhance religion, and the free exercise clause, which grants all individual the right to their personal beliefs and worship. Over the years several United States Supreme Court cases have interpreted these clauses, with results that would likely make Kenyan conservatives squirm.<\/p>\n

In 1963 in Abington School District v. Schempp, the US Supreme Court held that Bible reading over public school intercoms was unconstitutional and in Murray v. Curlett, it held that forcing a child in a public school to participate in Bible reading and prayer was unconstitutional. In 1980 in Stone v. Graham, the Court held posting of the Ten Commandments in schools to be unconstitutional. In Lee v. Weisman, the Court found it was unconstitutional for a school district to provide any clergy to perform nondenominational prayer at elementary or secondary school graduation because it involves government sponsorship of worship.<\/p>\n

Here at home, it will take a while to adjust to the changed reality that the Supreme Court is coming to the table to shape and define the issues of our times, particularly issues that have traditionally fallen within the Church’s realm and that touch upon family values.<\/p>\n

Reform<\/strong><\/p>\n

“Reform” has been the rallying call of Kenyans for a while now. Times are hard, the system is broken and we believe change can make it better. Hardly anyone would dispute the need for changes such as doing away with corruption and firmly installing the rule of law. In some areas however, change has been more difficult for some to accept.<\/p>\n

Take for instance the issue of abortion, one of the most contentious issues during Kenya’s Referendum vote for the new Constitution. Kenya’s Constitution disallows abortion unless “in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” This last part created the most controversy because it appears to leave the issue open to amendment. Hence the fear that a liberal Supreme Court will at some future date find that a woman has a right to abortion in the early stages of pregnancy, as is the case in so many other countries.<\/p>\n

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