Judges of the Supreme Court of Kenya. [Photo/ standardmedia.co.ke]

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When reviewing the functions of the Supreme Court judges, and how and why decisions are made, there are many factors which should come into consideration. In an ideal world, the court should be independent and neutral.

It should be immune from the ebbs and flows of politics i.e. it should make decisions solely based on the constitution.

The judicial branch should interpret the law and constitution, and to make neutral and impartial decisions. Judges, in theory, should be fair, unbiased, neutral, impartial and not linked to any political party or movement.

Eric Posner, a law professor at University of Chicago, has argued that judges’ decisions are best explained by their political preferences.

In the US, the Supreme Court Justices are certainly political. In the 2000 Presidential Election, all Democrat-appointed justices voted for Al Gore, and all Republican-appointed justices voted for George W. Bush. However, they are ultimately lawyers, as their power stems from interpreting the constitution, and are not allowed to state opinions on what the law should be, only what it is.

However, in Kenya, it has been argued in the past that judges are too alike to politicians, as decisions made by the Court judges have, and will not be mechanical, but in a lot of cases too biased and political.

This argument is strongly supported by the outcome of the major Supreme Court case, Roe vs. Wade. This case was a landmark decision which concerned abortion rights for women. Previously, abortion was a very questionable issue and was not allowed in most states. The case had two arguments put forward, one being 'pro-life', which did not support abortion, and was backed by Republicans. The other was 'pro-choice', which was supported by Democrats. Whichever decision was made, the result was always going to be said to be biased towards one political party, and therefore the neutrality, and whether judges were non-partisan, would be questioned. The Supreme Court judges also have a very large involvement with the people, and with civil rights. This again could encourage political involvement as many civil rights groups see the court as an avenue to achieving their goals.

Questions have been asked as to what explains the distinctly different approaches taken by the Court of Appeal and the Supreme Court regarding election petitions. One explanation, including from senior members of the Judiciary, is that the Supreme Court is defending a cause, its decision in the presidential election petition which has received strong criticism even within the Judiciary. Many judges in the lower courts say they feel a conscientious duty not to apply it in their own judgments.

According to this point of view, the Supreme Court has a mission to represent its troubling judgment as the norm, and is coming down on the Court of Appeal whenever it makes decisions that seem to question the approach in that judgment. For example, the Court of Appeal has endeavoured to explain its judgment by close reference to the constitutional provisions which the Supreme Court set aside in the presidential petition.

The Supreme Court judgment is objectionable not only because of the poor reasoning it represents but also because of its worldview that the elections of 2017 were not free and fair and had problems.

According to judiciary insiders, the Supreme Court views allowing petitions based on replica grounds as those it rejected in the presidential petition is a mockery of its efforts, and an attempt to create an alternative narrative that questions the 2017 elections. A number of insiders, therefore, deeply feel that the Judiciary is now embroiled in a game of power, and not justice.

The Supreme Court lacks the humility to recognise that just as the Judiciary has the constitutional duty to limit the power of others, its own power is not without limits, and that there are situations where a court, even the Supreme Court, cannot intervene. The judges and the courts should not be solving a problem by creating another one as it is happening every day. The problem is not that judicial ethics provisions only apply to lower court judges, a common but erroneous claim. The problem unsolved so far is creating mechanisms to regulate the justices’ behaviour that don’t create more problems than they might solve. It should not be assumed that judges are more intellectual than other judges just because of the offices they hold in the judiciary. But as it stands today, all judges are equal, but some judges seem more equal than others.