President Uhuru Kenyatta Inaugural Speech: Broad Strokes of Policy

In his inauguration speech, President Uhuru Kenyatta touches on a broad range of policy issues. Read the speech here.

County Assemblies to Debate in Vernacular?

Kakamega County, the second largest county in the country by population, (after Nairobi) seems to be at the frontline in the fight for devolution lately (remember recent demonstrations and attempts to evict the PC to make way for governor as well as statements by its senator elect that there are schemes to scuttle devolution). Now the Speaker of Kakamega County Assembly has suggested that adopting Luhya language as an official language (in addition to English and Kiswahili) in debates. Is this a good thing? What would be its constitutionality?

There are a number of relevant provisions to consider. The Constitution recognises English and Kiswahili as national languages (art 7), but protects the right to culture (see art 11, which obligates the state to promote all forms of cultural expression. In art 27, it prohibits discrimination on several grounds, including culture. For its part, article 44 which says a person has the right to use his/her language in community with members of that community. Art 120 provides that Parliament to conduct business in English, Kiswahili and Kenyan sign language. Art 238 obligates security organs to respect culture of communities within Kenya.

Section 18 of the County Government Act of 2012 establishes similarly established English, Kiswahili and Sign Language as official languages of county governments. It however adds that 'the business of the county assembly may be conducted in [these languages]. The use of permissive may, suggests, at first blush that local languages can be used where it is practical to do so. However, s 18(2) states categorically that 'No business of the county assembly or any of its committees or other organs may be conducted or transacted in a language other than the official languages'.

Is there a case for changing the law to allow the conduct of business in a language other than English, Kiswahili and Kenyan Sign Language? And how practical is it to use local languages to conduct the business of county governments, anyway? Using Luhya in Kakamega could work (at least for this Assembly), what about Nairobi? Or Nakuru? Even in Kakamega where all elected county reps speak Luhya (albeit a mix of dialects), would this not exclude non-Luhya staff of the county? Members of the public who come to follow proceedings? Access to the Hansard of the County Assembly for the broader public would pose problems. So far, reactions from professionals in the county have been mixed with some supportingml the proposal. Share your thoughts.

Our Constitution Decrees Judicial Activism

Following a number of apparently paradigm-shifting judgments, not least the MRC case, our judges are coming under attack for alleged judicial activism. Some have suggested, supposedly unflatteringly, that the judges ‘are behaving like civil society’ and ‘unnecessarily challenging the executive’.

I argue, with respect, that these accusations are based on a misapprehension of what judicial activism is, and are perhaps based on lack of appreciation of the nature of our new constitution, and what it demands of our judges, and the legal profession in general.As will become evident below, am yet to see a judgment that would lead me to characterize the judge as activist.

The idea of judicial activism originates in the United States, where it entered debates on constitutionalism and the role of judges in the early years of the republic. Judicial activism, a controversial term commonly used in the context of constitutional and statutory interpretation and in debates on separation of powers refers to a practice by the courts where ‘judicial rulings are suspected of being based on personal or political considerations rather than on existing law’.

To accuse a judge of practicing judicial activism is to say that the judge has read in the law things that don’t exist in the law (or those the lawmaker did not intend) and that as such, the judge is not respecting separation of powers by essentially legislating.

I say ‘accuse’ because the debate is also ideologically and politically laden. Those who advocate for ‘judicial restraint’ are often conservatives who say judges must know their place in the scheme of separation of powers. Liberals often advocate for activism because they partly believe the law must be used to advance social ends, especially in favour of the vulnerable in society.

That brings me back to our situation.

At the outset, it is critical to understand that our constitution is different from the western liberal model that is minimalist because it largely preoccupies itself with assigning and checking power among state organs.

There are many features in our constitution – article 10 on values, the Bill of Rights, socio-economic rights, affirmative action, and heavy focus on the rights of previously marginalized – that establish it firmly as a transformative constitution.

A transformative constitution demands that the government must intervene actively in society to advance social justice, equity, human dignity and the rights of previously marginalized groups.

This fundamental re-ordering of social, political and economic spheres of life introduced by our transformative constitution demands and shapes a new role for judges. To be certain, the constitution provides for this role.

Judges are enjoined to give effect to the Bill of Rights against which all laws and every government policy in social, political and cultural spheres must be measured. It is critical to understand – and this is something we must all internalize – the era of parliamentary supremacy is dead: our transformative constitution has permanently ushered us into an era of constitutional supremacy.

It does not matter what parliament says or executive does if it is not constitutional. It must be struck down. And it is worth noting that the Constitution today empowers judges (Article 20.3) to develop the law (statute and common law) to ensure it conforms with the values in Article 10 and the Bill of Rights.

This means, consistent with section 7 of the Sixth Schedule and comparative experience, that judges can read in or sever words from a law to make it constitutional then require the legislature to act accordingly.

I can understand why a constitution that empowers judges to develop the law can be unsettling for those trained, have practiced and lived in the old tradition. I suspect that the judges, like all of us, are still coming to grips with what the new Constitution is really about.

It is clear though that a doctrine of strict separation of powers is no longer tenable in Kenya. I only hope that it develops in collaborative, rather than contentious direction.

But this is only possible if we see the exchanges between the courts, executive, the bar and the public as dialogue (more on this in another post).

I suggest that we must heed the counsel of Justice Pius Langa, former Chief Justice of South Africa who argues forcefully – in a context similar to ours – that transformative constitutionalism demands that the legal profession must change the way it thinks about legal problems, the role of judges and the law in society. As lawyers, we must re-educate ourselves! Change is here to stay.