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{
    "id": 665699,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/665699/?format=api",
    "text_counter": 221,
    "type": "other",
    "speaker_name": "",
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    "content": "We had a delightfully enlightened conversation, bound by the fact that regardless of our institutional location in the Constitution, we all swore to uphold one Constitution and not just sections that create or apply to us. I hope that there will be no alarm that the Chief Justice is addressing the Senate. We are not about to judicialize the Senate or politicize the Judiciary. The alarmists forgot that the Constitution says that judicial authority, as is Executive and Legislative authority, is derived from the people of Kenya and it commands every organ of State to obey it and exercise power in public interest. This alarm that a dialogue between two independent organs of the State triggers is grounded on a fundamental misunderstanding of our Constitution. That is why I always get amused when some observers, clearly powered by a weak appreciation of the origins, content and context of our Constitution, charge that the Judiciary, through its decisions and conduct, has become “activist”. The Constitution, 2010 is exactly activist by origin, design, text and intent. It has almost eliminated or blurred the traditional activist-judicial restraint divide. That is why it commands the courts in Article 159(2) to exercise judicial authority, guided by the ‘purpose and principles of this Constitution---’ - principles which are in Article 10 and which include such progressive principles as human dignity, social justice, human rights, sustainable development, protection of the marginalised, integrity and so on. I sometimes wonder what the conservative meaning of this principle is. I wonder, too, what possible conservative meaning one could assign to the constitutional commandment of Article 259 that the Constitution must be interpreted in a manner that advances the rule of law, human rights and fundamental freedoms, while permitting the development of the law and while adhering to the delightful doctrine that the law is always speaking. Further, judicial authority is derived from the people. This means whether you choose common, civil or religious law; whether you choose to don or doff foreign attire, or use exotic or vernacular accents, the primary source of judicial authority is the people themselves. I wonder why some people think Kenyans are a ‘conservative’ people despite evidence to the contrary. Conservative societies do not overwhelmingly vote for such a progressive Constitution. It is only an activist or progressive society that could have recommended the total disbanding or vetting of the Judiciary; not a conservative one. It is only an activist and a progressive society that could have provided for an open, competitive recruitment of a Chief Justice in the full glare of the media. Conservative societies do not do that. It is also a progressive and not conservative society that frowns upon legislative supremacy in favour of constitutional supremacy, even while acknowledging the important role played by the representatives of the people in a democracy. Mr. Speaker, Sir and Hon. Members, if by “conservatism” they mean what I found in the Judiciary, then I am so glad I am not conservative even by unconscious accident. Let me illustrate by drawing a portrait of an institution I found. Many Members here who were advocates remember that the current Supreme Court building used to stink; literally. Courts in many parts of the country were dilapidated and judicial officers The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate"
}