By Chris Bosire
Judicial restraint is usually invoked in a bid to ensure that the doctrine of stare decisis is enforced. However, the Constitution gives sweeping powers to the judiciary to interrogate matters that were traditionally a reserve of the legislature and executive. This therefore gives birth to judicialization of politics, which is a collective term referring to the deployment of courts and judicial processes by extension of the mandate of the judiciary beyond traditional judicial province, stretching into public policy formulation and shaping the political and moral landscape.
Brown v Board of Education best captures the concept of judicialization of politics. The policy of race-based segregation of children into “separate but equal groups” in public schools violated the Equal Protection Clause of the Fourteenth Amendment of the American Constitution and was declared unconstitutional. The political and policy effect of this judgement was the immediate outlaw of the policy of racial segregation and the introduction of a policy of non-discrimination in public schools in the United States of America.
In Bush v Gore, George Bush had been certified the winner in Florida and Al Gore contested the proclamation under Florida law. The Federal Supreme Court held that the decision violated the Fourteenth Amendment on Equal Protection because it granted more protection to some presidential ballots than to others.
It is largely contended that the court should have allowed the electoral body to complete the democratic exercise of counting votes whether manually or electronically in order to determine who the choice of the voters was in respect of those particular ballots.
In Rev Timothy Njoya &Others -Vs- the Attorney General & Others the court held that the constituent power of constitution making repose in the people of Kenya and that a plebiscite was necessary for the promulgation of a new constitution. The judgement fundamentally altered the legal framework which parliament had put in place for the promulgation of a new constitution.
In Teachers Service Commission (TSC)-Vs- Kenya National Union of Teachers (KNUT) & 3 others, the High Court awarded teachers an increase in basic pay as well as in their allowances. The increase on some of the allowances was backdated to 2013. The Executive held the policy position that a salary increment for teachers would have adverse macro-economic implications. On its part, the legislature had not voted to allocate any funds to increase teachers’ salaries. The Court’s decision to increase their salaries was not enforceable because the judiciary cannot compel the other two arms of government to allocate funds for an increase in the salaries. This is seen as one of the cases in which the judiciary should have insisted on judicial restraint.
Judicial restraint refers to the notion that judges apply law, they don’t make it. The definition is backed by assertions that judges are reluctant to declare legislative or executive action unconstitutional. Judicial restraint is the idea that the court has a passive role to play and that the theory of judicial interpretation requires judges to limit the exercise of their own power, and to hesitate to strike down laws and interfere with the actions of other arms of government unless they are obviously unconstitutional.
In this philosophy of judicial decision-making, judges base their decisions on the doctrine of ‘stare decisis which essentially means relying on precedents to maintain the status quo.
In Raila Odinga -Vs- the IEBC and 3 others, judicial restraint was submitted by counsel for respondents thus:
‘”…What is before the court is a political contest; for all politicians, their business is to offer themselves for elections; that of IEBC is to conduct elections; that of the people is to decide. Counsel submitted that in an electoral contest such as the instant one, the Court should have a very limited role.
The Court decided that in such a case, its guiding principle would be fidelity to the terms of the Constitution, and of such other law as objectively reflects the intent and purpose of the Constitution.
“A justice must be free to vote to overrule decisions that he or she deems are not supported by the constitution itself, as opposed to prior precedents.”
Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions…”
Judicial activism is the view that the Supreme Court and other judges can and should creatively interpret the texts of the constitution in order to serve the judges own visions regarding the needs of contemporary society. Another definition of judicial activism is when a court fails to follow precedent in its own prior decisions.
Judicial activism may be viewed with the idea that the law is organic and constantly growing and the role of the judiciary is to aid in its development. According to a former Chief Justice Baghwati of India,
“…the “judge infuses life into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society…”
He further asserted that the Supreme Court has become through its activism a “symbol of hope for the people of India.”
Courts should stick to their role in society with disenchanting legal formalism and scholarship. It is within the wisdom of the judiciary to develop good jurisprudence on political justice and save the society from precipitating into socio-economic crisis while serving justice. Judges tend to deviate from the traditional belief in case law and legal doctrines bound by certain key principles and pay more attention to societal needs.
Judicial activism has overtime acted as an instrument of advancing the transformative motif of the constitution in various ways. Courts have overtime been transformative by playing the oversight role against the legislature by overturning bad laws and create new policies thereby going against the principal of judicial restraint just interpreting laws and not legislating policies. In invoking judicial activism, the judiciary does not abdicate its duty, but interprets the constitution as assigning discretion over an issue to another branch of government.
The Doctrine of Stare Decisis
Stare decisis is the Common Law doctrine that courts should be guided by precedents or earlier decisions in like matters. Some scholars opine that judicial restraint emanates from the doctrine of stare decisis. This wing of scholars are exponents of the original or historical approach to constitutional interpretation. They support legislative freedom of Parliament and Executive discretion in matters of policy.
Those who view it as wrong for the courts to digress from its past rulings argue that it discounts the importance of stare decisis by compromising the uniformity and predictability of court decisions. They therefore, see departures from the accepted norm as wrong and an act of judicial activism.
In National Bank of Kenya Limited v. Anaj Warehousing Limited, a case that concerned the issue of validity of a charge drafted, attested and registered by an unqualified person contrary to Section 34(1) of the Advocates Act, Ibrahim J (as he then was) in his ruling, applied the doctrine of precedent, thus stating: “I am bound by the doctrine of precedent to follow the ratio decidendi in the Wilson Ndolo Ayah case, and I do hereby find that the charge dated 29th June 1994 was null, void and invalid.” The court in the latter matter had ruled that legal documents drawn by unqualified persons are null, void and invalid ab initio.
In the same matter, the Court of Appeal dismissed the appeal citing the Wilson Ndolo Ayah case, which had earlier invalidated the charge drawn by an unqualified person. The learned judges were of the opinion that to the learned judge Ibrahim of the then High Court, showed fidelity to the doctrine of stare decisis.
On appeal to the Supreme Court, the learned judges stated that even as stare decisis assures orderly and systematic approaches to dispute resolution, the common law retains its inherent flexibility, which empowers the Courts, as the custodians of justice under the Constitution, to proceed on a case-by-case basis, invoking and applying equitable principles in relation to every dispute coming up.
Legal Theorists, Judicial Restraint, Stare Decisis and Judicial Activism
According to Hart, in the majority of cases, the rules of a system of law are clear and the judge simply has to apply the rule to the instant facts. However, there may arise a case with a set of facts which are not covered by a settled rule (“a hard case” or “penumbral case”).
In such a case, Hart proposes that the judge would have to exercise his discretion in order to arrive at a decision. In this instance, the judge acts as a kind of legislature. In exercising this discretion, the judge must come up with a forward-looking verdict which serves the interests of the society.
Dworkin’s theory rebuts Hart’s theory that judges possess discretion in hard cases. Dworkin’s theory also rebuts the utilitarian view that the welfare of the community as a whole is the ultimate purpose of the law. In his theory, Dworkin concedes that rules form part of the law and that clear- cut cases are decided through the application of those rules. He however rejects the view that judges have discretion when deciding hard cases. He contends that the law does not only consist of rules but also comprises principles and standards.
Dworkin insists that judges do not decide cases on extralegal grounds but rather discover the correct answer in terms of institutional history and community morality. He maintains that existing law provides an answer to every hard case and therefore there is no necessity for independent discretion by the judges.
Judicial Discretion vis a vis Judicial Restraint
Courts have been expressly mandated protect uphold and enforce the law of the land. Article 159(2) provides for principles that shall guide the exercise of judicial authority. The exercise of judicial discretion enables the courts to do justice in each case to preserve the values and goals of the preservation of the rule of law and a stable Constitutional order and the prevention of chaos and anarchy.
Justice A. Aguda was right when he astutely observed;
“…., a judge in a developing country must regard himself (or herself) to the extent possible, as the bulwark against tyranny and oppressive laws. He must continuously remind himself (or herself) of the assertion by the International Commission of Jurists, that ‘The Rule of Law is of universal validity and application as it embraces those principles of justice which are considered minimal to the assurance of human rights and the dignity of man.”
In light of the foregoing, judges are encouraged to treat judicial restraint with proportional contempt since it would, of course, be erroneous and catastrophic if judges in developing countries accepted the formalistic interpretation of the Rule of Law, and thus, stood aloof while countries fall into the error.
Judicial restraint does not mean judicial timidity as this leads to the loss of confidence in courts by Kenyans. When required to defend the Constitution, the Judiciary must come out strongly and firmly, equally ready to strike down legislative acts and to sanction Executive overreach.
Dissecting the Supreme Court’s logic in the 2013 Presidential Election Petition
In the petition, counsel for the respondents argued that the new Judiciary should exercise restraint as opposed to judicial activism owing to the embryonic nature of the institution. This argument failed to take into account the context of the new progressive constitutional dispensation which would in fact require judicial activism to realise its objectives.
In the court’s judgment is there is the acceptance that in the case of a Presidential election, the court should be guided by an approach of judicial restraint as the question before it is more political than constitutional-legal. Therefore, the court was persuaded, with standard of proof in Presidential Election Petitions should be artificially higher than it ought to be so as to curb judicial intervention in matters where the electorate are deemed to have exercised their political choice by casting their vote.
In this vein, the words of former South African Judge Albie Sachs in Prince vs. President of the Cape Law Society and Others, are to the effect that undue judicial adventurism can be as damaging as excessive judicial timidity. This is the position adopted by the Supreme Court in the foregoing petition.
Judicial Activism vis a vis Judicial Independence
Judicial activism and judicial independence are closely linked to each other. However, a Judiciary does not need to be independent in order to be activist. There are cases where the Judiciary has been activist but in service of political interests. In Kenya, the historical judicial subservience makes the case for judicial independence as part of the on-going reform process.
Judicial independence is guaranteed legally as it is a separate branch of government, the other two being the Legislature and the Executive. Judicial independence then, is freedom from influences, whilst judicial activism is using the powers conferred upon the Judiciary to contribute towards the development of the law. Judicial independence is not however necessary for activism.
Judicial Restraint, Stare Decisis and CJ Maraga’s 2017 Bench
The 3rd respondent cited the case of Bush v. Gore and urged that the Court in determining the petition before it, should keep in mind the role of the Court in presidential election petitions. The Supreme Court of the United States of America in that case had held:
“… None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere…”
At paragraph  the court boldly observed that the electoral system in Kenya today was designed to be simple and verifiable and invited the IEBC to a soul-searching and to go back to the drawing board. Consistency and fidelity to the Constitution is a non-wavering commitment this court makes.
This decision, some may argue, is a departure from the doctrine of judicial restraint and observing of the doctrine of stare decisis as it departed from principles laid in the 2013 petition.
One can never say in a constitutional democracy that ‘the hands of justice are tied.’ The Constitution empowers judges (Article 20.3) to develop the law (statute and common law) to ensure it conforms with the values in Article 10 and the Bill of Rights. This means that judges can read in or sever words from a law to make it constitutional then require the legislature to act accordingly.
In Justice Pius Langa’s view, transformative constitutionalism demands that the legal profession must change the way it thinks about legal problems, the role of judges and the law in society. The exercise of restraint should only be resorted to when the court has reasonable cause to believe that deciding one way and not the other may have undesirable consequences either for the Judiciary itself or for the other arms of government.
The kind of judicial restraint referred to here is one born of judicial prudence and foresight. Moreover, such restraint should not be exercised because the Judiciary feels constrained to do so because of pressure from other quarters but rather because it feels that it ought to restrain itself in the matter in question because the dispute demands a political solution.
In a nutshell, Kenya’s post-2010 Judiciary should adopt the theory of principled constitutionalism. At the core of this theory is the philosophy that in a self-governing society, courts must generally defer to the preferences of the majority. Although courts ought to review governmental action whenever petitioned, to guard against arbitrariness or unreasonableness, the starting point must be the exercise of judicial restraint in judicialized litigation. Further, the judiciary should not be concerned with achieving specific desired outcomes without regard to the plain or intended meaning of the constitutional text.