By LUKOYE ATWOLI
Sunday Nation 30 May 2010
The constitutional court ruling on Monday last week concerning the place of Kadhis’ courts in the constitution and in our national life was, of course, meant to be controversial. The timing of the ruling also raised eyebrows.
Many arguments will be made on the merits or otherwise of the ruling, including its effect on the constitutional review process, and this is likely to keep legal academics talking for a long time to come.
In my opinion, however, this ruling will be remembered in future for an entirely different reason.
It will be remembered for attempting to turn a courtroom into a classroom at the School of Law, and trying to overthrow the established constitutional order through judicial fiat.
With a stroke of their collective pen, the constitutional court judges threw to the four winds the doctrine of judicial restraint favouring, instead, a more active engagement in re-writing the constitution of the Republic – a judicial coup attempt.
Quite apart from the weighty legal issues the ruling raises, it contains numerous other obvious errors including the citation of parts of the constitution that have absolutely nothing to do with the ruling the judges handed down.
These are merely indicative of the decline in the culture of exactitude that we inherited from the British colonialists, and a descent into an attitude of “anything goes”.
For instance, the judges aver that paying for the Kadhis’ courts from public coffers is “... also against the principle of separation of state and religion as captioned by section 1A of the Constitution”.
The cited section in fact only says that “The Republic of Kenya shall be a multiparty democratic state.”
The leap from “multiparty democratic state” to one that actively eliminates minority rights is a huge one, indeed, and one hopes that their long 114 page ruling (as cited in the press) contains the legal philosophy and theory that enables that chasm to be safely navigated.
The main foundation of the judges’ findings was that section 66 of the constitution (which allows for the creation of Kadhis’ courts and the necessary infrastructure) is inconsistent with section 65 (which gives Parliament the power to establish courts subordinate to the High Court) and section 82 (which outlaws discrimination in law-making).
An ordinary citizen may quite truthfully plead that ignorance of the law blinds them from seeing the inconsistency between sections 66 and section 65, but we must wait upon the lawyers to educate us on the extent of this conflict.
However, regarding section 82, subsection 4(b) explicitly makes exemptions for laws that make provisions “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”, which is exactly what both section 66 of the constitution and the Kadhis’ Courts Act set out to do.
Indeed, section 82(1) of the constitution explicitly recognises this fact by providing in the beginning that “subject to subsections (4), (5) and (8) ...”.
For the learned judges to find inconsistency between this section and section 66 begs a deeper explanation than can be found in a plain reading of the ruling and the constitution itself.
Further, in granting the clergymen’s prayer to declare section 66 to be, among other things, “unconstitutional”, the judges clearly pushed jurisprudence to another level.
In theory, the people in a constitutional democracy exercise their sovereignty through the constitution.
They elevate it into a canopy underneath which all organs of state must function, and any act or provision that is perceived to run afoul of the constitution is considered null and void, and ultimately unconstitutional.
In this regard, therefore, the courts are custodians and the primary defenders of the constitution, with the power to interpret the will of the people as expressed in this document.
Nobody has the power to change the constitution except through mechanisms prescribed in the same document which, in our case, is encapsulated in sections 47 and 47A of the constitution.
Any other attempts to instigate alteration or replacement of the constitution would be regarded as a coup against the constitutionally established order, and most jurisdictions would deal with it as a treasonable offence.
If this decision is allowed to stand, it will deal a deadly blow to the last bastion of our nationhood, belief in the infallibility of the constitution.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine