Virtual Bookshelf: Judicial Review in Kenya: A Review of “The Contested Empowerment of Kenya’s Judiciary, 2010-2015: A Historical Institutional Analysis,” by James Thuo Gathii

—Richard Albert, Boston College Law School

We know a lot about the theory of judicial review. We also know a lot about how the power of judicial review is exercised and why it has emerged in many constitutional democracies around the world.

For example, Tom Ginsburg has theorized what he calls the insurance model of judicial review in Asia. Ran Hirschl has advanced a theory of hegemonic preservation to explain judicial review in Canada, Israel, New Zealand and South Africa. And Mark Tushnet has theorized the emergence of weak-form judicial review in Canada, New Zealand and the United Kingdom, the same countries (plus Australia) which Stephen Gardbaum has grouped together as reflecting the Commonwealth model of judicial review. Many other scholars have written about judicial review in these and other countries, and the field public law has been enriched by their contributions.

But there are many countries and traditions that we still know very little about—and we should know more about them if we really wish to deepen our understanding of public law beyond the conventional sample of countries that we ordinarily read and write about.

One of those countries is Kenya.

In his most recent book entitled “The Contested Empowerment of Kenya’s Judiciary, 2010-2015: A Historical Institutional Analysis,” James Thuo Gathii invites readers to learn about the Kenyan Constitution. He focuses his attention specifically on the rise of judicial review in Kenya, but the book doubles as a modern constitutional history of the country.

Gathii’s point of departure is Kenya’s new Constitution of 2010, which constitutionally entrenched the power of judicial review. Article 165(3)(d) authorizes the High Court to determine whether:

1. Any law is inconsistent or in contravention of the Constitution

2. Anything said to be done under the authority of the Constitution or any law is inconsistent with, or in contravention of the Constitution;

3. Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between levels of government.

Gathii explains that the impetus for this constitutional provision “was a deliberate effort to reverse the legacy of judicial abdication from reviewing the political branches.” [p. 39] In pre-2010 Kenya, “the role of the Judiciary and the legal order was to bolster authoritarian governance.” [p. 1] Gathii describes the pre-2010 judiciary in greater detail:

In the pre-2010 constitutional era, courts routinely failed to review decisions of the President and Parliament. Consistent with this deference to the Executive, judicial review was regarded as only being available with respect to the decision-making process engaged of a public body in a public matter. Courts routinely declined to review the merits of the decisions of public bodies in general and of the President and Parliament in particular [p. 31] (internal citations omitted)

The story has been different since 2010. Gathii explains:

The 2010 Constitution transformed the nature of judicial review by endorsing values and principles upon which judicial review must be based. Thus unlike under the repealed Constitution when judicial review of the Executive and Parliament was regarded as illegitimate, in the post-2010 Constitution judicial review is constitutionally entrenched. [p. 31]

According to Gathii, Kenyan courts under the new Constitution have increasingly exercised the power of judicial review “as a baseline for guiding, informing and increasingly governing the conduct of other branches and units of government.” [p. 1]

The key to understanding how Kenyan courts have become empowered, explains Gathii, is the set of institutional reforms introduced by the 2010 Constitution. Those reforms include a new judicial recruitment and appointment process, new rules for the structure and jurisdiction of courts, as well as new measures to promote accountability and transparency in the judiciary. All of these reforms were meant to establish and thereafter to reinforce the separation of powers—and they so far seem to be having their intended effect. [pp. 105-26]

Taking a step back from the details of the chronology and evolution of how the Kenyan judiciary has acquired and exercised the power of judicial review, Gathii observes that the transformation of judicial review is “ongoing and incomplete.” [p.55] There has indeed been a transformation of judicial review in Kenya, he explains, but there remains much progress to be made. He therefore offers suggestions for how to complete the transformation of judicial review in Kenya. [pp. 55-68]

My reading of the book, however, suggests that something much bigger may be happening in Kenya. The judiciary in Kenya is both in the midst of and also the engine of transformation. The judiciary as an institution is being transformed just as it is transforming the country and its constitutional culture.

I recommend this book as an introduction to the judiciary in Kenya, and as an invitation to learn about a part of the world that remains under-studied in comparative perspective.

Suggested Citation: Richard Albert, Book Review, Judicial Review in Kenya: A Review of “The Contested Empowerment of Kenya’s Judiciary, 2010-2015: A Historical Institutional Analysis,” by James Thuo Gathii, Oct. 28, 2016, at: http://www.iconnectblog.com/2016/10/virtual-bookshelf-judicial-review-in-kenya