Wronging the Rights: Rights without remedies and Futilitarian Constitutionalism in the Supreme Court’s Tribunal Decision

Prologue

More than a decade ago, Kenyans constructed a great ship and called it their ‘new Constitution.’ In its design, they assembled the finest timbers they could find. In doing so, they believed they had brought to an end a long, tedious, torturous, and painful chapter in their history; confident that they had forged not only a durable vessel, but the most sophisticated instrument in their constitutional journey, a clean bill of constitutional health (as aptly captured in the celebratory reflections of the High Court at promulgation).

1 Today, that great ship is being dismantled by the very institution entrusted with itsprotection: the Supreme Court of Kenya. The finest timbers are being splintered and, in their place, weaker substitutes quietly installed. The very institution tasked with enforcing the Constitution asks the lower courts (and judges) to ‘shrug and turn their backs to intermittent lawlessness’ by issuing ineffective remedies.

2As the Supreme Court drifts from its original trajectory as a guardian of the Constitution and edges toward an increasingly deferential posture to Parliament, its excesses, and an ever-expanding conception of separation of powers, the present moment begins to resemble a darker constitutional irony. It recalls the (in) famous observation by Joseph Goebbels: ‘It will always remain one of the best jokes of democracy that it provides its own deadly enemies with the means with which it can be destroyed.

3. Recast for our purposes, replace ‘democracy’ with constitutionalism, and the warning becomes uncomfortably apt. For what the Court now appears to be constructing is a jurisprudence in which the very institution entrusted with enforcing the Constitution systematically withdraws from that task. Under the guise of separation of powers, Parliament is increasingly being insulated from meaningful judicial scrutiny. The message that emerges, however subtly, is that constitutional commands may be deferred, diluted, or selectively implemented, with little fear of decisive judicial intervention. Taken to its logical conclusion, this trajectory licenses a troubling possibility