“There shall be a fundamental right to good standing locus standii, including the fundamental right to epistolary standing (through written correspondence) to move the court for a remedy…for anyone acting in the public or common good.”
This is just one of the proposed provisions of the new constitution that would mark a radical departure from the legal principles and practices in Kenya in this presentation to the Constitution of Kenya Review Commission (CKRC) by Shermit Lamba, Kenyan Jurist. It is couched in a comprehensive proposal for democratizing the judiciary, and for the administration of justice and courts in Kenya-areas that in the past have failed to foster trust between the ruled and the rulers in the context of an unequal social contract.
The proposals are, therefore made in the context of genuinely fresh constitution making-with the end of restoring trust between the people and a new people owned state.
This solidly valuable contribution covers wide ground. It addresses the concept of the role of the judiciary in the administration of the rule of law, in enforcing fundamental rights, creating trust between state and government and republic. It addresses the question of locus standii and boldly proposes opening up the courts to the people by the liberal interpretation of the right of good standing. Beyond this the contribution grapples with the political, procedural and bureaucratic aspects of liberalizing access to justice by the broad spectrum of Kenya’s citizens.
It proposes the creation of three councils that will ensure a democratized judiciary. The Judicial Appointment Council will be anchored in the people, for the council will be recruited through advertisement, which will give broad sections of the society (including disadvantaged groups) the opportunity to apply for inclusion. The Judicial Complaints Council will listen to accusations against Judges. And the novel Judicial Marches council will be based on the Indian model, a programme that encourages judges to “take long marches through remote villages to solve people’s grievances”; these judges are empowered to convert letters alleging rights violations into petitions.
The Contributions finally addresses the question of enforcing the concept of the separation of powers in rural villages, by creating empowered village and and neighborhood courts-thereby liberating the majority of Kenya’s people from the unconstitutional domination of a provincial administration which plays a quasi-judicial and quasi punitive role.
After grappling with the nitty-gritty of matters like court buildings, court adornments and creating filing systems, the author of this contribution offers convincing answers to his initial questions: What does the most socially just legal system look like? How do you build it? How do you operate it?
It is constitution-making time in Kenya. All of us want to study this document.