Cleansing Ghana’s Judiciary using Kenya’s example

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The turbulence that has rocked Ghana’s Judicial Service, following the latest investigative work of Anas Aremeyaw Anas gives clear indication that the time is ripe for a complete overhaul of Ghana’s judiciary.

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Not that the revelations of endemic corruption contained in the said video are coming to Ghanaians for the first time, but that it is the first time incontrovertible evidence on a mass scale has been adduce in support of what is now a widespread perception.

The great strides that Kenya has made in recent times in Judicial and constitutional transformation should be something that serve as a guide to countries like Ghana on how best to restore the fast declining integrity of the judiciary.

Public Agenda therefore finds it expedient to share with readers, the speech of Dr. Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya delivered at the opening of this Year’s Annual General Conference of the Nigerian Bar Association, held at the International Conference Centre, Abuja. Dr. Willy Mutunga spoke pertinently, sharing his country’s experience on how Kenya surmounted the similar challenges faced by Nigeria, and now Ghana.

My address is organised in three parts with the first one offering a general commentary on claims pertaining to transformative constitutions and transformative constitutionalism. These claims seek to answer one of the burning questions of our time: Can Judiciaries contribute to the social transformation of countries in Africa? In the second part, I highlight key aims of Kenyan’s experience with struggles for a transformative constitution and transformative constitutionalism with a focus on:

a) The vision of Kenya’s 2010 Constitution
b)It’s new Judiciary
c) The Kenyan Constitution’s role in generating a theory of its interpretation.
d) Efforts by the Judiciary to decolonise its jurisprudence under the dictates of a progressive and transformative constitution.

In the last part, I highlight pivotal aspects of the Judiciary Transformation Framework that seeks to demonstrate that there is a paradigm of Transformation from the Margins that works notwithstanding resistance from external and internal anti-transformation forces. Thereafter, I very briefly conclude my address.

Transformation, Transformative Constitutions and Transformative Constitutionalism
The Claim:

Social transformation in any society is located within its global, continental, regional, and national contexts. Hobsbawm states, ?Our world risks both explosion and implosion. It must change.? Within the context of Africa and the Global South this ?World? is one of domination, oppression, exploitation largely by Western contemporary capitalism, and by an elite in the South that is insular, selfish and unimaginative.

Although in some parts of the Global South there are signs of gradual disengagement from world contemporary capitalism that is not the case for Africa and many states in the Global South. In the case of Africa the emergence of Afro-Chinese relations have heralded the debate on what these relations mean to Africa. I do not want to go into these debates but to state that I agree with Professor Kwesi Kwaa Prah who argues that the debate should not be whether the West or the East dominates, exploits, and oppresses Africa, but whether Africa can identify, articulate its material interests, and negotiate with the West and the East on that basis.

That argument entails serious interrogation of the crises of political leadership in Africa. In other words, can Africa (judges, politicians, scholars) summon its ‘confidence quotient’ to comprehensively identify its interests and engage the rest of the world on these terms?

In transforming judiciaries to contribute to social transformation those contexts are equally important.
The role of law in social transformation, once the source of serious and continuous jurisprudential debates, has acquired a consensus that law, indeed, has a role to play in social transformation. This consensus is multi-disciplinary and is shared by lawyers, economists, political scientists and anthropologists.

The question whether law and the courts can advance, stagnate or impede social justice and social transformation has a long genealogy. Perhaps one of the most trenchant critiques of the role of courts in producing social change is American Professor Gerald Rosenberg’s book ?Hollow Hope: Can Courts Bring about Social Change?? in which he stridently argues:

?Courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government?.. At worst, courts serve as ‘fly paper’ for social reformers who succumb to the ‘lure of litigation’?.. Court rulings divert scarce resources away from more productive uses while providing only an ‘illusion of change.?

However, what is now generally acknowledged from this debate is that law has profoundly distributive effects and it cannot be ignored as a tool for social justice. Clearly, ‘Hollow Hope’ makes a pertinently hollow claim for litigation on social and economic rights or land or public finance have such far reaching developmental implications that evidences the place of the law as a change agent.

In the coming into effect of the new phenomenon of Transformative Constitutionalism, this debate has been both enriched and transformed (pun intended).

The very idea of a transformative constitution (like those of India, Colombia, Costa Rica, Bolivia, Ecuador, Venezuela, South Africa, and Kenya) is the idea that the Constitutional superstructure is embedded on a theory that the Constitution will be an instrument for the transformation of society rather than a historical, economic and socio-political pact to preserve the status quo as the earlier constitutions did. Fundamentally important to transformative constitutionalism are values of the rule of law, human rights, and social democratic sustainable development.

The claim, therefore, is that transformative constitutions and transformative constitutionalism are both engines of social transformation. A transformative Constitution and its attendant transformative constitutionalism are both about change from a status quo that is neither acceptable nor sustainable. Transformative constitutions are not revolutionary but could be the basis or fundamental revolutionary change in a society.

Transformative constitutionalism is anchored to progressive jurisprudence from the Judiciary and observance of the Constitution by other State Organs, and all people. It is a jurisprudence that allows us, as Africa, also to be producers, developers and shapers of international law.

It is part of that ‘Africa confidence quotient’ needed in our relations with the rest of the world. At the economic, social, cultural and political levels transformative constitutions and constitutionalism aim at social change that can put any nation in a social democratic trajectory and a consequent basis for democratic sustainable development.

Testing these theoretical and practical claims requires an in-depth study of particularly the many jurisdictions I have mentioned that claim to have transformative constitutions and attendant transformative constitutionalism. While the jurisprudence in these jurisdictions continue to enrich Kenya’s jurisprudence I cannot in this Address discuss the various limitations that have been the subject of various studies by scholars. I will, however, touch on some of these when I discuss our experience:

The Kenyan Experience
The Vision of the 2010 Constitution
Kenya’s constitution is not a child of fear resulting from the ethnic violence of 2007/2008. It is a product of 40 years of struggle of ambition and aspiration whose frustrations by the Kenyan elite culminated in the violence. It is the reason Kenyans ignored both the political and religious elite to pass a constitution that embodies their aspirations as a people.

In their wisdom the Kenyan people saw the old constitution as legitimising an unacceptable and unsustainable status quo.

They thus reconfigured and reconstructed the state from its former vertical, imperial, authoritative, non-accountable content under the former Constitution to a state that is accountable, horizontal, decentralised, democratised, and responsive to the vision of the Constitution; a vision of nationhood premised on national unity and political integration, while respecting diversity; provisions on the democratisation and decentralisation of the Executive; devolution; decreeing values in the public service; giving ultimate authority to the people of Kenya that they delegate to institutions that must serve them and not enslave them; prioritising integrity in public leadership; a modern Bill of Rights that provides for economic, social and cultural rights to reinforce the political and civil rights giving the whole gamut of human rights the power to radically mitigate the status quo and signal the creation of a human rights state and society in Kenya; mitigating the status quo in the land sector that has been the country’s Achilles heel in its economic and democratic development; the strengthening of institutions; the creation of institutions that provide democratic checks and balances among others.

In one of its transformative pronouncements the Kenyan constitution provides that judicial authority, just like executive and legislative authority, is derived from the people.

The Kenyan people chose the route of transformation and not revolution to end their poverty and deprivation and regain their dignity and sovereigntyIt can be argued that the 2010 Constitution reflects the vision of those patriots who struggled and fought against our domination, exploitation, and oppression by British colonialism and post-colonial political and economic elites. History records invocation of discourses of reform, revolution, human rights, social justice, patriotism, freedom, nationhood, among others that the 2010 Constitution decrees.

The New Judiciary
The Kenyan distinguished professor and constitutional law scholar, Professor Yash Pal Ghai, has argued that:
?Perhaps realising its own ambitious project, and hence its vulnerability and fragility, the Kenyan Constitution sets, through the judiciary, its barricades against destruction of its values and weakening of its institutions by forces external to itself. Such is the responsibility of Kenya’s judiciary.?

It is perhaps remarkable, and indeed, a paradox that, although disappointment with the judiciary was at least as great among the common Kenyan as frustration with politicians, it is also true that they chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

They did this by promulgating a Constitution that provides for the appointing of women and men of integrity by an independent and broadly representative Judicial Service Commission; and by providing for institutional and decisional independence of the Judiciary and the judicial officers respectively; through the vetting of judges and magistrates who served before August 27, 2010 by a Board which had a broad criteria upon which to determine the suitability of these judicial officers; by setting up the Judiciary Fund to signal financial independence of the Judiciary; and finally by creating a new apex court, the Supreme Court that would act as the final protector and custodian of the supremacy of the Constitution.

By vetting the old judicial officers and by recruiting new judicial officers in a transparent and competitive manner that called for public participation, the new Constitution created a new Judiciary. The interview for the recruitment of judges, including the chief Justice, is carried out in the open, in the full glare of the media. The Constitution required that the Kenyan Judiciary should transform itself first so that it could be imbued with the ethos of the transformative constitution to lead the change and be the true engine of societal transformation. The old judiciary was the first victim of the new constitutional order.

The Chief Justice was forced to resign after six months of its promulgation. This gave the judiciary the moral momentum to lead the transformation of the judiciary and society. The judiciary became the only source of oxygen for this new constitutional order.

Let me add here that the old judiciary operated under very difficult circumstances, as indeed, all judiciaries in Africa do, but the Kenyan people wanted to create under the new constitution a new judiciary. A transformative constitution required a transformed judiciary to generate the requisite transformative jurisprudence. This is what we have been doing in Kenya and the progress is encouraging, difficulties and challenges notwithstanding.

Mainstreaming the Theory of Interpreting the 2010 Constitution
The Kenya Constitution is also unusual in setting out a theory of interpretation. In the same vein the Kenyan Parliament, in enacting the Supreme Court Act 2011, (Supreme Court Act) has in the provisions of Section 3 of that Act reinforced this aspect of constitutional pre-occupation in its theory of interpretation.

The relevant provisions of the Constitution and the Supreme Court Act, 2011 respectively are:
259. (1) This Constitution shall be interpreted in a manner that-
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c)permits development of the law; and
(d) contributes to good governance.
(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking?

Section 3 of the Supreme Court Act provides:
3. The object of this Act is to make further provisions with respect to the operation of the Supreme Court as a court of final authority to, among other things-
c. develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth;

d. enable important constitutional and legal matters, including matters relating to the transition from the former to the present constitutional dispensation, to be determined having due regard to the circumstances, history and cultures of the people of Kenya.

In a recent judgment delivered on September 29, 2014 The CCK Petition 14 as Consolidated with Petitions 14A, 14B and 14C the Supreme Court revisited this critical issue of the theory of the interpretation of the 2010 Constitution.

[356] We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on Chapter Four ? The Bill of Rights ? of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of the Constitution that pronounce on its theory of interpretation.

?[232]?References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.

What is this interpretative theory? I believe it is a theory that shuns staunch positivism; that accepts judges make law; that by invoking non-legal phenomena in its interpretation it establishes the judiciary ?as an institutional political actor; a theory that is a merger of paradigms and that problematises, interrogates, and historicises all paradigms in building a radical democratic content that is transformative of the state and society; it a theory that values a multi-disciplinary approach to the implementation of the Constitution; its neither insular nor inward looking and seeks its place in global comparative jurisprudence and seeks equality of participation, development, and influence. Thus, this theory of interpretation of the Constitution will also undergird various streams and strands of our jurisprudence that reflect the holistic interpretation of the Constitution.

by : Willy Mutunga*

Source : Public Agenda

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