Judges in Nairobi have intervened to enforce citizens’ rights and protect democracy, writes Martha Gayoye.
A minority of judges in Africa are taking an increasingly assertive, critical and oppositional stance to safeguard the rule of law in defiant acts of judicial leadership in the face of political opportunism. This is important as African nations are enacting, amending, and reforming constitutions but without substantive regard for their realisation.
Kenya’s judicial leadership
A handful of judges in Kenya’s High Court have consistently tried to uphold constitutional rights and safeguard the rule of law amidst blatant disrespect for the constitution by the government over a period of 13 years. They have been particularly active in supporting socio-economic rights, gender equality, and against amendments to the constitution that suit politicians’ interests.
The Kenyan courts are made up of the magistracy, and higher superior courts that are made up of the High Court, Court of Appeal and Supreme Court. As far as human rights are concerned, the High Court is the original court that entertains such matters (in the Constitutional and Human Rights Division, and the Judicial Review Division). The Court of Appeal and Supreme Court entertain them only on appeal, which partly might explain why the High Court has exercised the foremost judicial leadership in human rights cases.
They have made personal sacrifices and faced retaliation from politicians – from transfers away from the centre of government power in Nairobi to regional courts, and to media insults and slights.
Judicial leadership
Administrative leadership is commonly associated with the governance of a judicial system, a role typically performed by Chief Justices.
Community leadership is about connecting the courts with members of the public through media engagements, public events and public lectures.
Adjudicatory leadership is “the influence of a given judge on the decisions or jurisprudence of the court, in a specific area, or more generally… and may involve influence over time, as well as persuasion in individual cases … the development of a line of thought at odds with the court’s general position but which is nonetheless jurisprudentially important.” This form of adjudicatory leadership can be crucial for democracy-enhancing judicial decisions that alleviate human and social suffering.
Socio-economic rights
Focus group participants described Justice Mumbi Ngugi, Justice Isaack Lenaola, and Justice Vincent Odunga as the foremost stalwarts in enforcing the right to housing in the High Court. They were supported by Justice Aggrey Muchelule and Justice Daniel Musinga. These judges have insisted that socio-economic rights must be respected and that the government cannot simply say they haven’t got the money.
In cases on the right to housing, such as Mitubell (2011), 30,654 households were evicted from Mitumba village near Wilson Airport in Nairobi. In Satrose Ayuma (2010), thousands of tenants were evicted from Muthurwa Estate in Nairobi, while in William Musembi, hundreds of tenants were evicted from Upendo City Village, South C Ward in Nairobi and the privately owned Moi Educational Complex Centre. In all these eviction cases, children’s education was brought to an abrupt halt in the middle of a school year, and families were suddenly cut off from livelihood.
The judges held the government to account and insisted they demonstrate their plans to provide alternative housing for those evicted out of informal settlements on public land. These plans needed to be clear with a timeframe, to which they must report back to the court. During previous eviction cases, the government simply stated that they didn’t have the money and that socio-economic rights are not compulsory. These new decisions had far-reaching implications on the question of resourcing for socio-economic rights.
Another implication was the extent to which courts can ‘borrow’ remedies from other countries (in this instance India). The Supreme Court upheld the High Court’s leadership in borrowing remedies from fellow developing Global South countries. This enriches a Global South-to-South borrowing that reverses the traditional North-South borrowing of best practice.
The final implication is the extent to which the courts can supervise the legislature and executive, which adds to ongoing debates on the separation of powers. Global South Constitutional Courts like Kenya, India, South Africa and Colombia are leading the debate towards a more active supervisory role of the courts.
Justice Mumbi Ngugi also spearheaded the Pumwani Maternity Hospital Case (2012) involving the highly subsidised public Pumwani Maternity Hospital, in Nairobi. Mothers give birth in deplorable conditions in which they share single beds with other mothers and their babies or lie on the floor with their infants. Those who couldn’t pay the modest fee were detained until they could pay, with little to no food. The judge did not spare the government in her scathing remarks about the disregard for mothers’ unique life-giving role. The judge gave the Government time to report back to the Court on plans to improve the hospital and stop the practice of detaining mothers who couldn’t pay the maternity fee.
The battle for gender parity
Despite numerous attempts from human rights activists and public interest lawyers to engage with policymakers and courts, Kenya’s parliament has yet to reach the required threshold for gender parity in Parliament. High Court judges – Justice Daniel Musinga, Justice Mumbi Ngugi, Justice John Mativo, Justice Joseph Louis Omondi Onguto (RIP), and Justice Chacha Mwita insisted that the government has a duty to put in place the policy and legislative framework for gender parity. Some of the judges gave the Government specific instructions and time to report back on plans and progress made, which have simply been disregarded. This disregard of these court orders has implications on the credibility of the courts if their orders can be disregarded, and Parliament carries on as usual with an unconstitutional gender imbalance in its composition.
The Famous BBI Five
The ‘famous BBI Five’ were Justices Joel M Ngugi, Vincent Odunga, Jairus Ngaa, Chacha Mwita and Mumbua Matheka who successfully prevented an amendment of the Constitution by popular initiative in 2020 (Building Bridges Initiative, a result of a political ‘handshake’ between the ruling and opposition politicians to consolidate their power after the 2017 general elections).
The five judges insisted in the Building Bridges Initiative Case (2020) that the constitution can only be amended through the exercise of the power of the people, clearly laid out in the Constitution – this decision was upheld by the Court of Appeal and Supreme Court.
The Kenyan example shows the importance of judicial leadership in alleviating human and social suffering and safeguarding rule of law. Judges however don’t do this in a vacuum – there are various public interest lawyers and human rights activists working tirelessly to engage with policymakers and courts. This is an essential piece of the puzzle in judicial leadership. Judges must never be placed on a pedestal, but an independent and fearless judiciary is key for a fully functioning democracy.
Photo credit: Ting Chen used with permission CC BY-SA 2.0
