Moses K. Chelanga
“The Supreme Court’s only armour is the cloak of public trust; its sole ammunitions, the collective hopes of our society” Irving R. Kaufman
The Supreme Court of Kenya is now fully constituted and operational with progressive rules in place. In a matter of days, it shall have its maiden sitting, another stride to constitutional implementation. The seven member court being the highest in the system holds people’s judicial authority in trust and therefore people’s expectations to the court are both high and sometimes unfair to the court.
As the court rolls up its sleeves to do business, it is no mean task. The court is the Rosetta stone to redefinition of our jurisprudence, its decisions shall be religiously binding to all the courts subordinate to it, the State organs shall be also be guided by the court’s interpretation of the law. Pronouncements emanating from the court ought to be a reflection of our collective hopes, aspirations and public policy.
However the court is an endangered institution; endangered by the very public it intends to serve. If the debate on the interpretation of the Constitution is anything to go by, the most hopeless of cases may be on their way to the court.
It has become a joke that whenever there is a scintilla of difference of opinion on the import of an article of the Constitution, the protagonists swear to each other “see you in the supreme court”, referring to the advisory opinion jurisdiction of the court from the most clear question of whether Members of Parliament should pay taxes, the election date; whether State Ministers should continue holding political party offices to the pay of CIC commissioners!
At this rate there shall be 264 cases to the court seeking an advisory opinion on all the articles of the constitution leading to backlog of cases in the court, a malignant tumour in our administration of justice. This should be stopped in the track.
The US Supreme Court serving 50 states and a population of over 300 million with a robust economy besides being a highly litigious society admits less than 100 cases to its docket per year.
This represents between 1-2 percent of the cases submitted to the court. The cases submitted to the US Supreme Court are painstakingly reviewed by the law clerks and the justices to determine whether or not they merit the courts attention before admitting them to the docket.
For those who care to read the judicial pronouncement of that court will agree with me that they are highly reasoned and sometimes run through hundreds of pages to put the legal question straight and to rest. Its opinions are relied on far and wide within and without the American society.
Whereas the Kenya Supreme Court Rules 2011 have made cursory provisions of preliminary inquiry and directions, they are not enough to adequately protect the court from abuse, the judges should raise the bar of admission of cases to the court.
I am not proposing that the court should be an ivory tower but be circumspect lest it disappoint our expectations. If the court is anxious to entertain any semblance of a case presented before it, it will be quickly overwhelmed and incapacitated from performing its work.
It will just scratch the surface in the name of expeditious disposal of cases and we risk having hollow and shallow decisions that stand no scrutiny.
The court should be able to ward off frivolous cases presented to it summarily only taking on meritorious cases to enable it provide the necessary exposition on the legal issues making ground breaking decisions and guidance to our hitherto uncertain, ambiguous and sometimes conflicting case law.
Conscious of the danger of restraining access to justice, I believe that it would be more injustice to the country if the court fails to perform its duties because of admitting every case into its docket.
The court should therefore be able to separate the chaff from the wheat, in doing so, it shall need to lending hand from both the public and the legal fraternity. The contrary would make a big joke of an otherwise serious court.
Mr Chelanga is an advocate of High Court of Kenya and a Legal Consultant. Email: [email protected]