Judicial activism, populism and counterterrorism legislation in Kenya: coalition for Reform and democracy (CORD) & 2 others v Republic of Kenya & 10; others [2015

Abstract

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.