Conference remarks · 4 November 2024
It is an honour to join you in commemorating twelve years since the establishment of Kenya’s Supreme Court, an iconic institution that, along with devolution and the Bill of Rights, stands as one of the most transformative innovations in our progressive constitutional dispensation.
As the nation’s apex judicial body, the Supreme Court is entrusted with the sacrosanct mandate to uphold and promote the purpose and principles of our constitutional order. By virtue of its unique complement of exclusive original, appellate and advisory jurisdictions, it possesses the necessary authority to arbitrate, advise, and guide the institutions of our Republic as they perform their roles of giving full expression to the will of the people, as inscribed in the constitution.
The Supreme Court, therefore, serves a powerful symbolic role as the highest representation of the value and institution of justice in our land and the fulfilment of people’s determined quest for a judiciary grounded in inclusivity, fairness, justice, and constitutionalism. It was designed not merely to interpret laws but to resolutely underwrite and defend justice for all Kenyans.
Fourteen years after the promulgation of the Constitution, we continue on the journey of implementing its vision for a stable, secure, prosperous, open, and democratic society grounded in freedom, justice, and the rule of law. Central to this monumental endeavour is the Supreme Court, which has guided the judiciary in orienting the national ideology towards the legitimate pursuit of every aspiration and resisting the temptation to compromise our values for the illusion of political expedience, however wellmeaning.
Twelve years after its establishment, it is difficult for us to imagine how the Republic of Kenya existed for many decades without the Supreme Court. It has helped us reject the many false dichotomies that once constrained our politics and policies, including the belief that freedom must be sacrificed for security, that democracy and stability are mutually exclusive, or that sustainable development is the monopoly of the centralised government.
It is, therefore, fitting that this conference invites us to reflect on the Supreme Court’s jurisprudence over the past twelve years. In doing so, we recognise both successes and areas for critique as we consider the Court’s evolution, its impact on Kenya’s constitutional landscape, and its commitment to protecting the rights and aspirations of all Kenyans. True to the Court’s philosophy, bold honesty is the best policy, and this occasion calls us to reflect candidly on its journey, its progress, challenges, and impact.
To appreciate the achievement represented by the Supreme Court’s creation, we must revisit the hard lessons of the 2007 presidential election crisis. That crisis exposed deep-seated systemic failures and a profound erosion of public trust in our electoral and judicial processes, fracturing the people’s trust in the rule of law. Consequently, a disputed election outcome triggered underlying conflicts that nearly drove the nation to the brink of total collapse.
It was realised then that rebuilding trust and restoring faith in the rule of law was indispensable and that a credible, authoritative mechanism for resolving presidential election disputes was the only way to prevent elections from threatening, rather than renewing, our nationhood.
The 2010 Constitution, therefore, established the Supreme Court as a unique institution with hybrid jurisdiction, symbolising its special status. Its exclusive original jurisdiction over presidential election disputes is a legacy of the 2007 “Never Again” moment. Its hybrid appellate jurisdiction, which depends on the existence of a unique issue deserving authoritative determination by the court, aims to restore confidence in the judiciary, while its advisory mandate enables state organs and county governments to seek authoritative guidance on best practices for policy formulation and implementation.
The body of work that the Supreme Court has developed over the course of 12 years is expansive and authoritative. It would be tedious for me to dissect all of the outputs today, and, in any event, the Attorney-General is here to do that for me. Suffice it to say, the Court’s jurisprudence demonstrates its capacity to address complex issues, clarify the law, stabilise policy, and meet the expectations of the Kenyan people.
There is no doubt that the Supreme Court has not been short of critics during the past twelve years; its decisions have been and will be debated and dissected vigorously, and in a number of cases, disagreement will linger for long. Nevertheless, it would be unduly pessimistic to overlook the Court’s clear efforts to interpret the Constitution with wisdom, reinforcing pillars of democracy, justice, equality, freedom, good governance, accountability, and the rule of law.
It has pronounced itself on a broad range of pertinent issues across the legal landscape and, in so doing, entrenched certain principles and values as non-negotiable procedural and substantive elements of good policy. It is because the Court has been emphatic in its dispositions and firm in its guidance of subordinate courts that Kenyans are confident that their rights are intact and due process is indispensable. In turn, this confidence has fostered courage, openness, and vigour in our society values the Constitution envisioned for the Supreme Court and the judiciary.
It is, therefore, quite fair to say that the Court has stood as a faithful custodian of our Constitution, a defender of fundamental rights, and a pillar of democracy. Its sustained capacity to resolve complex constitutional matters remains critical to our nation’s institutional vitality.
Even as we celebrate the Court’s achievements, we must recognise that there remains some way to go for us to reach the Constitution’s Promised Land, that the pursuit of justice is unending, and that as long as we are a free and democratic nation, competition and disagreement will require resolution. The Supreme Court must continue to evolve, maintain ideological clarity and intellectual rigour, and remain connected to the lived experiences of all Kenyans. A forward-thinking, innovative, and responsive Court is essential for addressing the complex challenges of our time.
What has become clear during the course of constitutional implementation, and in the life of the Supreme Court, is that notwithstanding the principle of separation of powers and the need for checks and balances, cooperation between organs of the government and among state institutions is necessary and desirable for the promotion of national interest and constitutionalism.
Effective collaboration in the national interest is vital to the realisation of the Constitution's transformative vision. No single institution or organ is entire of itself or viable in isolation.
I am encouraged by the increased confidence with which various arms of government are exploring areas of partnership and collaboration, breaking long-standing barriers to unlock the power of institutional synergy.
As we have repeatedly demonstrated, such partnerships are beneficial when pursued transparently in the public interest. Through this approach, the Executive has found an opportunity to engage the Legislature and Judiciary over the national budget and to support the expansion of the judiciary's infrastructure, among other consultative endeavours.
We remain committed to partnering with the judicial and legal fraternity in building a more accessible, empathetic, and efficient judicial ecosystem which delivers justice to all in a timely, fair, effective and accessible manner.
Each branch of government plays an important role in supporting the Supreme Court as it leads the judiciary in delivering justice. We are committed to working alongside the judiciary to continue developing a justice system that honours the aspirations of all Kenyans and upholds our Constitution, reinforcing the foundations of our democracy. We must work in unity and with a singular sense of purpose to ensure that the Supreme Court remains a shining beacon of integrity, a trusted guardian of our rights and freedoms, a champion of the rule of law, and a leading force in producing progressive jurisprudence both in Africa and globally.
Beyond serving as the ultimate arbiter, the Supreme Court is a driver of national development. Its decisions shape our institutional framework, define our socioeconomic landscape, and guide our path towards an equitable society where justice underpins development.
In guiding our institutions to articulate the national values and principles of government as coherent parameters of sustainable development, the constitution designates the Supreme Court as the umpire charged with auditing policies to ensure that they promote inclusive growth and economic empowerment. When it supports access to essentials like health, housing, and education, it strengthens the foundation for inclusive policies that uplift communities and break poverty cycles.
As recognised and amplified by the Supreme Court itself, the greatness of our nation is based on fidelity to the Constitution and the rule of law. Our commitment to constitutionalism and the rule of law is the bedrock of Kenya’s quest for prosperity. Consistent and fair application of the law builds trust, encourages civic responsibility, and fosters social cohesion. By championing a jurisprudence that simultaneously upholds fundamental rights and freedoms while supporting development, the Supreme Court helps Kenya achieve Vision 2030 and the Bottom-Up Economic Transformation Agenda.
I congratulate the Court on its twelve years of steadfast growth. Without a doubt, it has now matured into a respected constitutional authority and fountain of progressive jurisprudence. I encourage the Court to sustain its progress, become a global beacon of judicial wisdom, constitutional clarity, and foster developmental dynamism. May this conference inspire deeper reflection on the Supreme Court’s role in national transformation and energise all participants in their pursuit of a more just and equitable Kenya. Thank you. God bless you, God bless Kenya.