Judicial intervention in Kenya's constitutional review process.

• Published date: 22 March 2012
• Author: Juma, Laurence,Okpaluba, Chuks
• Date: 22 March 2012

3. The "Political Question" Doctrine

As a theory of interpretive deference, the political question doctrine demands that a court decline to exercise jurisdiction on a dispute that it is either ill-equipped to deal with or where the political organ may render the best possible resolution. The doctrine has its origins in U.S. constitutional jurisprudence, which largely recognises--although in many instances this is contestable--that there are certain matters that are better left to the other organs of government to decide rather than the courts. (215) While advocating for judicial modesty, Chief Justice Marshall, a strong proponent of judicial review, argued that powers of judicial review were not without limits. (216) "Questions, in their nature political," he wrote, "or which are, by the constitution and laws, submitted to the executive can never be made in this court." (217) According to Chief Justice Marshall, there were questions or issues over which political organs had the power and discretion to decide, and these fell outside the constitutional competence of the court. (218) Such issues would fall under one of the following categories: those matters with political subject matter; those that concern the nation and not the individual; and those areas in which the constitution vests the political organs with discretion. (219) This reasoning was based on his understanding of the distribution of powers by the Constitution, which delineated the respective competence of organs of government. Therefore, when political organs made judgment on matters of policy which fell within their competence, they were fulfilling their constitutional obligations. He believed that although the judiciary had power to say what the law is, it was not the only branch with such a power. (220) Indeed, if such a division of power did not exist, then some functions would end up being swallowed by the judiciary. (221)

We have taken time to analyze Chief Justice Marshall's postulation so as to show that the classical version of the doctrine had constitutional underpinnings. Undoubtedly, the classical version of the doctrine traces its pedigree to the Constitution of the United States itself. (222) That is why those who may be skeptical of the doctrine's relevance to judicial review may take solace in its limitation when fundamental rights and individual freedoms are at stake. Moreover, the U.S. Supreme Court has refined the doctrine leaning towards limiting blanket deference on political grounds. (223) Unlike other courts of similar stature, the U.S. Supreme Court chooses its cases and therefore has wide latitude to decline jurisdiction on the basis of the political question doctrine. This discretion, however, has often created doubt as to whether the doctrine in its maiden formulation would be readily applicable in other judicial systems. In Kenya, for example, the High Court (which technically is also the constitutional court) exercises both original and appellate jurisdiction in all matters. (224) As a result, if the court chooses to decline jurisdiction on any basis, the avenues for litigating constitutional questions may be constricted.

The question is whether political organs in Kenya can really be trusted to determine the meaning and scope of a constitutional provision in a climate of political incongruity. Perhaps the best way to examine this issue is to consider the criteria that US courts have adopted and compare it with the Kenyan position. The U.S. Supreme Court set the criteria in Baker v. Cart (225) in the following terms:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (226)

Professor Jesse H. Choper, of Berkeley Law School, breaks down the criteria for limiting the application of the doctrine set in Baker into four considerations. (227) First, courts should not exercise jurisdiction where there is a textual commitment to a coordinate government department, that is, where the constitution expressly confers the authority to a branch of government. (228) Second, courts should not intervene in circumstances where judicial review may not be necessary for preserving the Constitution or its values. (229) Here, Choper has in mind issues of institutional competence and human rights. In his view, courts may reduce "discord between judicial review and majoritarian democracy" when they abstain from deciding issues where political branches may produce sound constitutional decisions. (230) Indeed, this may enhance the court's ability in the future "to render enforceable decisions when their participation is vitally needed." (231) Third, a court should not attempt to adjudicate issues where its opinion hinges on no coherent tests or formulations because of "lack of judicially discoverable and manageable standards." (232) This criteria is extremely important for the courts own assessment of its capacity to assist the parties by developing appropriate constitutional standards to guide litigation. Also, it is important for creating some kind of consistency in constitutional litigation. The test, according to Choper, is whether a particular standard is "constitutionally warranted[,] ... desirable, and sufficiently principled to guide the lower courts and constrain all jurists from inserting their own ideological beliefs in ad hoc, unreasoned ways." (233) The fourth criterion, which is Choper's own, is that when the court is convinced that the constitutional injury suffered is "general and widely shared," it should decline jurisdiction. (234)

The respondents in Patrick Ouma Onyango had invited the court to consider the political nature of the constitution-making process and to find that questions on the referendum, constituent assembly, and content of the draft Constitution fell within the competence of other constitutional organs and not the court. The court agreed with this view:

The argument that certain objectives were not attained in managing the process is a matter this court would be unable to judicially enforce at this stage since the collection of views, the framing of proposals has already taken place and the question whether or not the objectives were met is largely a political question .... [T]he process leading up to the publication of the proposed new Constitution is in our judgement non-unjusticiable ... due to the political nature of the process .... (235)

In this respect, the court agreed with the dissenting opinion of Justice Kubo in Njoya. (236) In that case too, the judge had observed that the process of collating views and assembling proposals was political, and therefore the court was "not equipped to adjudicate on this part of the process under the political doctrine principle since it is also not justiciable ...." (237)

Both courts failed to distil the actual criteria that it used to determine whether particular questions were of a political nature and thus incapable of being adjudicated. Had the court in Patrick Ouma done this, this area of the law in Kenya could have been developed in the later cases. Yet, there were weighty constitutional issues involved. Could the very fact that Parliament had established a mechanism for collating views of the public and drafting a proposed constitution insulate the process from judicial inquiry if the applicant's right was allegedly violated? If the court held the view was that it lacked capacity to make an assessment of the process, then it should have articulated more clearly the role of the Constitution in creating a framework for reform, so as to put in context its inability to exercise its powers of judicial review in this regard.

4. Mootness and Ripeness

The applicants in Patrick Ouma contended that the imposition of security for costs of KSh 5 million was a violation of their right of access to court. (238) They also contended that about 56% of Kenyans were living below the poverty line and that this clause would deny them the right to approach the court. (239) In the court's view, the matter was not ripe for adjudication because the referendum, which would trigger the application of Section 28 B (4), had not occurred yet. (240) The court held that "the right or interest must be in existence now for it to be infringed or threatened with infringement under [Section] 70 of the Constitution." (241)

This unsound reasoning was not backed by any constitutional reference or facts. How could the matter be unripe when it was a provision in a statute that was already in force? Moreover, the applicants had alleged that the provision infringed on their right as enshrined in the Constitution. This necessarily should have triggered judicial review and the court ought to have made a Finding on the constitutionality of the provision. The argument that any decision on the matter would amount to giving an "advisory opinion" is in our view untenable.

III. PHASE III OF THE CONSTITUTIONAL REFORM PROCESS: THE WAKO DRAFT--A SHORTCUT TO HELL

Upon failure of Parliament to ratify the Bomas Draft, the government quickly mobilized its supporters to impose the task of rewriting the law on parliament. (242) This was mainly to save face because it was now evident to many Kenyans that the government was stalling the process of implementing a new constitution. Amid accusations of high level corruption implicating the ministers who...