The judiciary is one of three organs of State and thus a central pillar of governance in a democratic nation like Kenya.
The role of the judiciary however goes beyond interpreting laws and delivering justice. The courts have an integral role in promoting a country’s social and economic development. They are very much a part of the society in which they operate.
As stated in its official website www.judiciary.go.ke our judiciary “fosters social and political stability, and promotes national socio-economic development through its processes and decisions.” Kenya’s judiciary is therefore alive to its broader mandate of contributing to the country’s socio-economic development and political stability.
Upholding the rule of law and ensuring access to justice are not abstract concepts but ought to be viewed as components of the judiciary’s broader role in social progress. This implies that courts are not expected to play a bystander role for instance in the fight against poverty and inequality in society.
Various legal scholars and respected judicial voices have reiterated that courts should adopt a dynamic as opposed to rigid approach in dealing with important social issues. As the former Chief Justice of the Philippines Hilario G. Davide Jr., once said, “In the context of poverty reduction…. a well-functioning judicial system that provides efficient and fair justice to all is a key element of economic development and greater poverty reduction.”
The judiciary as a vital institution of governance cannot therefore afford an insular approach to matters touching on society’s development. Justice Albie Sachs of the Constitutional Court of South Africa cautions that judges should not “be unduly formalistic showing a passive and uncaring attitude to the real lives of actual people.”
This is not to say that independence of the judiciary does not matter. For courts to efficiently, expeditiously and impartially dispense justice, they must be accorded the space to function with minimal interference by government or citizens. But even that being the case, courts can hardly afford to cloister themselves in the arcane world of legalese or shirk their duty to positively shape society’s progress.
Chief Justice David Maraga in a speech marking his first hundred days in office spoke of a service-oriented Judiciary that is “sensitive to the social impact of its decisions and not one that is stone deaf to its societal context.” Judicial decisions ought to reflect the dynamic nature of society and must not be seen as impeding social progress.
This brings me to the role of the judiciary in the realization of the Big Four Agenda for Kenya’s socio-economic transformation.
The Big Four Agenda is anchored in Article 43 of Kenya’s Constitution which expressly entrenches social and economic rights as part of the Bill of Rights. Article 43 speaks of the right to “the highest attainable standard of health” and “accessible and affordable housing.”
Article 43 also provides for the right to “be free from hunger, and to have adequate food of acceptable quality.” These are all part of three pillars of food security, affordable housing and universal healthcare, which form part of the Big Four.
Article 21 of the Constitution requires the State to put in place the appropriate legislative and policy structures for the progressive realization of social and economic rights. Our Constitution therefore provides a legal roadmap for formulation and implementation of policies geared to the progressive realization of the social and economic rights and by extension the Big Four.
I will not delve into a detailed analysis of the constitutional framework governing social and economic rights. The point is that the Big Four has constitutional underpinnings. Our courts should view this transformative vision as integral to the realization of social and economic rights of all Kenyans as envisaged by our Constitution.
The Supreme Court of Pakistan declared in the case of Arshad Mehmood versus Government of Punjab (2005): “While interpreting constitutional provisions, courts should keep in mind the social setting of the country, growing requirements of the society/nation, burning problems of the day and the complex issues facing the people…Judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid…”
While the Executive is mandated by the Constitution to develop and enforce the policy and institutional structure for the realization of social and economic rights of Kenyans, the Judiciary should not be seen as an impediment to such efforts by engaging in rigid interpretation of the laws.
It should instead be an enabler not disabler of the Big Four by allowing itself to get bogged down by legal technicalities and obstructive litigation. This does not however mean agreeing with the Executive on everything.
A dynamic approach will help in achieving the Big Four – an important milestone in the realization of the social and economic rights of all Kenyans.
Mr Choto is a lawyer and public affairs specialist. firstname.lastname@example.org