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ABSTRACT
This article examines the relationship between populism and judicial activism in Kenya’s Security Laws (Amendment) Act, No 19 of 2014 High Court Case determined in 2015. The article defines populism as a political strategy rather than as a thin-ideology, and adopts majoritaianism and deference to elected branches, and judicial aggrandisement as indicators of judicial activism. The Act, which aims at, among others, augmenting counterterrorism, amended the provisions of 22 other security and security-related Acts of Parliament. The omnibus Act is an expression of penal populism. It is these amendments that precipitated the petition. The populism of both coalitions manifested itself in the issues raised for determination. Kenya’s parliamentary opposition Coalition for Reform and Democracy, the key petitioner, challenged the constitutionality of the Act on issues of legislation and human rights. The governing coalition Jubilee defended the Act on issues of justiciability and national security. Though judicial activism was apparent in relation to judicial aggrandisement, and majoritarianism and deference, both coalition’s populism, however, did not critically impact upon judicial decision making in the case. The implications for the integrity, independence and role of the judiciary in Kenya are offered in the conclusion.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See Brian Kimari and Melissa Mungai, ‘Case Digest. Decisions of Kenyan Courts on Terrorism’, Centre for Human Rights and Policy Studies, Nairobi, May 2020.
2 Keenan Kmiec, ‘The Origin and Current Meanings of “Judicial Activism”’, California Law Review 92 (2004): 1476.
3 Stefanie Lindquist and Frank Cross, Measuring Judicial Activism (Oxford: Oxford University Press, 2009), 32.
4 Lindquist and Cross, Measuring Judicial Activism, 33–40.
5 Aharon Barak, ‘On Society, Law and Judging’, Tulsa Law Review 47, no. 2 (2011): 305–8.
6 Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’, Melbourne University Law Review 30 (2006): 592; Clint Bolick, ‘The Role of the Judiciary’, Cato’s Letter 16, no. 2 (2018): 3–4.
7 Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, The Yale Review Journal 115 (2006): 1348–55.
8 Aileen Kavanagh, ‘Judicial Restraint in the Pursuit of Justice’, The University of Toronto Law Journal 60, no. 1 (2010): 24–5; Richard A. Posner, ‘The Rise and Fall of Judicial Restraint’, California Law Review 100, no. 3 (2012): 520–1.
9 Mia Stuart, ‘Independence of the Judiciary’, Oxford Constitutional Law, March 2019, 2.
10 Cas Mudde, ‘The Populist Zeitgeist’, Government and Opposition 39, no. 4 (2004): 542–3.
11 Cas Mudde and Christobal Rovira Kaltwasser, ‘Studying Populism in Comparative Perspective: Reflections of the Contemporary and Future Research Agenda’, Comparative Political Studies 51, no. 13 (2018): 1668–72.
12 Kurt Weyland, ‘Clarifying a Contested Concept: Populism in the Study of Latin American Politics’, Comparative Politics 34, no. 1 (2001): 12.
13 Ibid., 14.
14 Ibid., 18–19.
15 Kurt Weyland, ‘Populism’s Threat to Democracy: Comparative Lessons for the United States’, Perspectives on Politics 18, no. 2 (2020): 390.
16 Ran Hirschl, ‘The Judicialization of Politics’, in The Oxford Handbook of Political Science, ed. Robert Goodin (Oxford: Oxford University Press, 2013), 1–5.
17 Ibid., 17.
18 Nicola Lacey, ‘Populism and the Rule of Law’, LSE Working Paper 28, January 2019, 20.
19 John Pratt, Penal Populism (London: Routledge, 2007), 3–10; Marie Clark, ‘Penal Populism in New Zealand’, Punishment & Society 7, no. 3 (2005): 304.
20 Pratt, Penal Populism, 3; Clark, ‘Penal Populism in New Zealand’, 304.
21 Vincent Seron and Sophie Andre, ‘30 Measures Against Terrorism: Penal Populism Between Expected Efficiency and Potential Collateral Damage’, in Counterterrorism in Belgium: Key Challenges and Policy Options, ed. Thomas Renard (Brussels: Egmont Institute, 2016), 16; Seron and Andre, ‘30 Measures Against Terrorism’, 16; Lacey, ‘Populism and the Rule of Law’, 18.
22 Shylashri Shankar, ‘Judicial Restraint in an Era of Terrorism: Prevention of Terrorism Cases and Minorities in India’, Socio-Legal Review 11, no. 1 (2015): 104–5.
23 Shankar, ‘Judicial Restraint in an Era of Terrorism’, 105.
24 Kent Roach, ‘Judicial Review of the State’s Anti-Terrorism Activities: The Post 9/11 Experience and Normative Justifications for Judicial Review’, Indian Journal of Constitutional Law 3 (2009): 166–7; Lacey, ‘Populism and the Rule of Law’, 18.
25 Ariel L. Bendor, ‘Are There Any Limits to Justiciability? The Jurisprudential and Constitutional Controversy in Light of the Israeli and American Experience’, Indiana International & Comparative Law Review 7, no. 2 (1997): 312, Lindquist and Cross, Measuring Judicial Activism, 26, 38.
26 Republic of Kenya, The Constitution of Kenya, 2010, Kenya Gazette Supplement No.55, Special Issue, 27th August, 2010 (Nairobi: Government Printer, 2010), 63–113.
27 Uhuru Kenyatta, Statement by President Uhuru Kenyatta During a Televised Address to the Nation After Signing into Law the Security Laws (Amendment) Bill 2014, 19th December, 2014, 1.; National Consortium for the Study of Terrorism and Responses to Terrorism (NCSRT). 2018. Global Terrorism Data Base, Kenya. https://www.start.umd.edu/gtd (accessed November 30, 2019)
28 Republic of Kenya, The Security Laws (Amendment) Act, 2014. Kenya Gazette Supplement, Acts, 2014. 22nd December 2014. (Nairobi: Government Printer, 2014).
29 National Council for Law Reporting (NCLR), Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] (Nairobi: NCLR, 2015), 32.
30 NCLR, Coalition for Reform and Democracy, 32–3.
31 Ibid., 33.
32 NCLR, Coalition for Reform and Democracy, 33–4; Republic of Kenya, Parliament: The National Assembly Standing Orders, 4th ed. (Nairobi: Government Printer, 2018), 105.
33 Ibid., 33–4; Kenya, The National Assembly Standing Orders, 108.
34 NCLR, Coalition for Reform and Democracy, 34–5.
35 Oscar G. Mwangi, ‘Political Corruption, Party Financing and Democracy in Kenya’, The Journal of Modern African Studies 46, no. 2 (2008): 269.
36 Raila Odinga, ‘Statement on the Proposed Security Amendment Bill’, December 11, 2014.
37 Ibid.
38 Ibid.
39 Ibid.
40 Ibid.
41 Uhuru Kenyatta, Statement by President Uhuru Kenyatta During a Televised Address to the Nation After Signing into Law the Security Laws (Amendment) Bill 2014, 19th December, 2014.
42 Ibid.
43 Ibid.
44 Ibid.
45 Ibid.
46 Ibid.
47 NCLR, Coalition for Reform and Democracy, 47–8.
48 Lindquist and Cross, Measuring Judicial Activism, 37–8.
49 NCLR, Coalition for Reform and Democracy, 48.
50 Ibid., 49.
51 Ibid., 49.
52 Ibid., 50.
53 Ibid., 51–2.
54 Ibid., 52.
55 Ibid., 52.
56 NCLR, Coalition for Reform and Democracy, 52.
57 Ibid., 53–4.
58 Lindquist and Cross, Measuring Judicial Activism, 33.
59 NCLR, Coalition for Reform and Democracy, 55.
60 Aileen Kavanagh, ‘Constitutionalism, Counterterrorism, and the Courts: Changes in the British Constitutional Landscape’, I*CON9 9, no. 1 (2011): 177–8.
61 Roach, ‘Judicial Review’, 140–1.
62 Kavanagh, ‘Constitutionalism, Counterterrorism’, 180.
63 Roach, ‘Judicial Review’, 155.
64 NCLR, Coalition for Reform and Democracy, 57.
65 Ibid., 59.
66 Ibid., 59.
67 Ibid., 59–60.
68 Kenya, The Constitution of Kenya, 77.
69 NCLR, Coalition for Reform and Democracy, 61–3.
70 Ibid., 63–4.
71 Ibid., 63–4.
72 Ibid., 64–5.
73 Ibid., 65.
74 Kenya, The Constitution of Kenya, 75; Republic of Kenya, Parliament: The National Assembly Standing Orders, 108–9; NCLR, Coalition for Reform and Democracy, 65.
75 NCLR, Coalition for Reform and Democracy, 68–9.
76 Ibid., 68–9.
77 Ibid., 116.
78 Ibid., 117.
79 Ibid., 117.
Additional information
Notes on contributors
Oscar Gakuo Mwangi
Oscar Gakuo Mwangi (PhD) is Associate Professor of Political Science at the Department of Political and Administrative Studies, National University of Lesotho. His research interests are in in the areas of governance, conflict and security in the Horn of Africa, east and southern Africa. His teaching areas are in the fields of Comparative Politics, International Relations, and Political Theory.