Dilem­mas for the Ju­di­ciary

Nairobi Law Monthly - - Cover Story -

men­tal re­struc­tur­ing of so­ci­ety and state with a view to so­cial jus­tice, as op­posed to the more con­ser­va­tive con­sti­tu­tions which merely seek to pro­tect the sta­tus quo – for long time the stan­dard mis­sion of con­sti­tu­tions. Harbe­son's as­sump­tion seems to be that the Rule of Law is fea­si­ble (and in­deed nec­es­sary) for the con­ser­va­tive con­sti­tu­tion (and per­haps mar­ket economies) but most likely does not fit a trans­for­ma­tive con­sti­tu­tion. Why does he think that?

Pick­ing up from CJ Mu­tunga's elab­o­ra­tion of a trans­for­ma­tive con­sti­tu­tion, in par­tic­u­lar a key and ac­tivist role for the ju­di­ciary, Harbe­son con­sid­ers that the Rule of Law would not be ob­served closely; it must give way to other pri­or­i­ties. He quotes Mu­tunga's ex­pla­na­tion of the role of the ju­di­ciary in a trans­for­ma­tive con­sti­tu­tion, that the ju­di­ciary is be­ing asked to play a more cre­ative or at least an ac­tive role in the trans­for­ma­tion of so­ci­ety, than is im­plicit in the gen­eral un­der­stand­ing of the Ju­di­ciary's role un­der the Rule of Law.

He quotes Mu­tunga's the­ory of the ap­proach of the ju­di­ciary to­wards the in­ter­pre­ta­tion of a trans­for­ma­tive con­sti­tu­tion as fol­lows – as one “that shuns pos­i­tivism, that ac­cepts [that] judges make law”, thereby “es­tab­lish­ing the ju­di­ciary as an in­sti­tu­tional political ac­tor.” For his part, Harbe­son ex­plains the tra­di­tional role of the ju­di­ciary thus: first, un­der a con­ser­va­tive con­sti­tu­tion, the ju­di­ciary is re­quired merely ( but freely and fairly) to ap­ply the ex­ist­ing law to the facts of the case; se­condly, An­glo-saxon ju­rispru­dence fun­da­men­tally com­mits judges to “find­ing” the law, not mak­ing it which is the prov­ince of the leg­isla­tive and to some ex­tent the ex­ec­u­tive branches of demo­cratic govern­ment. This the­ory is deeply rooted in the Euro­pean me­dieval ori­gins of mod­ern An­glo-saxon ju­rispru­dence in which the very idea of leg­is­lat­ing law it­self had not yet been es­tab­lished.

By sharp con­trast, Dr Mu­tunga's con- cep­tion of trans­for­ma­tional ju­rispru­den­tial ex­plic­itly en­tails judges “de­vel­op­ing law in a way that re­sponds to the needs of the peo­ple and to the na­tional in­ter­est.” He con­sid­ers that Mu­tunga's ap­proach de­parts from the An­glo-saxon the­ory that judges are con­strained by the prin­ci­ple of stare de­ci­sis, the Latin term which means lit­er­ally “to stand by things de­cided,” to abide by prece­dent in cases and con­tro­ver­sies brought be­fore them. To be fair, he elab­o­rates that “Dr Mu­tunga would [not] dis­re­gard prece­dent so much as he would re­gard it is in­suf­fi­cient in and of it­self in for what con­sti­tu­tional ju­rispru­dence needs to be in the con­text of new evolv­ing de­vel­op­ing coun­try demo­cratic states.”

Thirdly, Harbe­son say that “it is ax­iomatic in An­glo-saxon ju­rispru­dence that judges are to be apo­lit­i­cal. They are to stand out­side the ex­plic­itly political pro­cesses of demo­cratic gov­er­nance in or­der to en­force the car­di­nal prin­ci­ple that demo­cratic gov­er­nance is gov­er­nance of laws, not of men (or women). Judges are to be the guar­an­tors that ev­ery­one plays by the ba­sic rules of the political game as en­shrined in con­sti­tu­tions. Dr Mu­tunga's the­ory of trans­for­ma­tive con­sti­tu­tion­al­ism, how­ever, makes the ju­di­ciary an

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