The Perilous Path Of Bifurcation: Unraveling The Disastrous Implications Of A Two-Track Judicial Review System In Kenya
The Mt Kenya Times 
By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- One cannot help but marvel at the irony of a system that purports to enhance judicial efficiency while simultaneously creating a labyrinthine maze of legal distinctions that would confound even the most erudite of legal minds.
- The proponents of a two-track judicial review system, in their misguided quest for legal clarity, have inadvertently opened a Pandora’s box of constitutional conundrums that threaten to unravel the very fabric of Kenya’s legal tapestry.
- It is as if they have embarked on a quixotic endeavor to separate the inseparable, to divide the indivisible, and to compartmentalize the inherently interconnected realms of constitutional and administrative law.
In the hallowed halls of justice, where the scales of Lady Justice are meant to be balanced with unwavering precision, the specter of a two-track judicial review system looms ominously over Kenya’s legal landscape, threatening to cast a long shadow of inequality and injustice across the nation. This bifurcated approach to judicial review, which has been the subject of intense debate and scrutiny among legal scholars and practitioners alike, presents a clear and present danger to the very foundations of Kenya’s constitutional democracy and the rule of law. As we delve into the intricacies of this contentious issue, we must heed the warnings of eminent jurists and legal luminaries who have vociferously decried the potential pitfalls of such a system, lest we find ourselves navigating a treacherous legal labyrinth from which there may be no escape.
The concept of a two-track judicial review system, which ostensibly seeks to differentiate between constitutional and administrative law matters, has been met with widespread skepticism and opposition from legal scholars both within Kenya and beyond its borders. Professor Migai Akech, a distinguished Kenyan legal scholar, has argued persuasively that such a system would create an artificial and ultimately harmful distinction between constitutional and administrative law, potentially leading to a fragmentation of legal principles and a dilution of the constitutional values that underpin Kenya’s legal framework. This sentiment is echoed by South African constitutional law expert, Professor Theunis Roux, who has cautioned against the dangers of compartmentalizing different areas of public law, drawing on the experiences of post-apartheid South Africa to illustrate the potential pitfalls of such an approach.
The Supreme Court of Kenya, in its landmark decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, emphatically rejected the notion of a two-track system of judicial review, asserting that such an approach would be antithetical to the spirit and letter of the 2010 Constitution. The Court, in its infinite wisdom, emphasized the importance of maintaining a unified and coherent system of judicial review that is firmly grounded in constitutional principles and values. This judicial pronouncement serves as a stark reminder of the potential dangers that lurk in the shadows of a bifurcated system, where the lines between constitutional and administrative law become blurred, and the fundamental rights of citizens hang precariously in the balance.
One cannot help but marvel at the irony of a system that purports to enhance judicial efficiency while simultaneously creating a labyrinthine maze of legal distinctions that would confound even the most erudite of legal minds. The proponents of a two-track judicial review system, in their misguided quest for legal clarity, have inadvertently opened a Pandora’s box of constitutional conundrums that threaten to unravel the very fabric of Kenya’s legal tapestry. It is as if they have embarked on a quixotic endeavor to separate the inseparable, to divide the indivisible, and to compartmentalize the inherently interconnected realms of constitutional and administrative law.
The potential for forum shopping and the creation of a hierarchical system of rights protection loom large as critical concerns in the implementation of a two-track judicial review system. Professor Karuti Kanyinga, a renowned Kenyan political scientist, has astutely observed that such a system could lead to a situation where litigants strategically choose between constitutional and administrative law tracks based on perceived advantages, rather than the merits of their cases. This phenomenon, aptly dubbed “forum shopping à la carte” by the wit of legal circles, threatens to transform the hallowed halls of justice into a veritable buffet of legal options, where the most resourceful and well-connected litigants can cherry-pick their preferred legal venues, leaving the less fortunate to navigate the treacherous waters of an increasingly complex and fragmented legal system.
The South African experience provides a cautionary tale for Kenya, as elucidated by Professor Cora Hoexter in her seminal work on administrative law. The initial attempts to create a clear distinction between constitutional and administrative law review in post-apartheid South Africa led to considerable confusion and inconsistency in the application of legal principles. The landmark case of Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC) served as a wake-up call, compelling the Constitutional Court to reaffirm the unity of the legal system and the interconnectedness of constitutional and administrative law principles.
The potential for a two-track judicial review system to exacerbate existing inequalities and create new forms of discrimination cannot be overstated. As the inimitable Justice Willy Mutunga, former Chief Justice of Kenya, once quipped with his characteristic blend of wit and wisdom, “A two-track judicial review system is like a two-headed hydra – it may look impressive, but it’s bound to give you twice the headache.” This sardonic observation cuts to the heart of the matter, highlighting the inherent contradictions and complexities that would inevitably arise from such a bifurcated approach to judicial review.
The doctrine of constitutional supremacy, a cornerstone of Kenya’s legal framework, stands in stark opposition to the notion of a two-track judicial review system. As elucidated by the Supreme Court in the seminal case of Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR, the Constitution is the supreme law of the land, and all other laws, including administrative law, must be interpreted and applied in light of constitutional principles and values. To create a separate track for administrative law review would be to undermine this fundamental principle, potentially leading to a situation where administrative actions are shielded from proper constitutional scrutiny.
The potential for a two-track judicial review system to create a Byzantine bureaucracy of legal procedures and technicalities is truly mind-boggling. One can almost imagine the Kafka-esque scenario of a litigant, caught in the throes of a legal quagmire, desperately trying to determine whether their case falls under the purview of constitutional or administrative law review, only to find themselves trapped in an endless loop of procedural wrangling and jurisdictional disputes. This legalistic version of Schrödinger’s cat, where a case simultaneously exists in both constitutional and administrative law dimensions until observed by a judge, would be amusing if it weren’t so potentially devastating to the pursuit of justice.
The impact of a two-track judicial review system on the development of Kenya’s jurisprudence cannot be underestimated. As Professor Yash Pal Ghai, one of Kenya’s most eminent constitutional law scholars, has argued, such a system could lead to the fragmentation of legal principles and the emergence of parallel and potentially conflicting lines of jurisprudence. This balkanization of the law, to borrow a term from the geopolitical lexicon, threatens to create a legal landscape fraught with inconsistencies and contradictions, where the fundamental principles of justice and equality become lost in a maze of technical distinctions and procedural minutiae.
In conclusion, the implementation of a two-track judicial review system in Kenya would be nothing short of a jurisprudential disaster of epic proportions. It would be akin to attempting to perform delicate brain surgery with a sledgehammer – a blunt and heavy-handed approach to a nuanced and complex issue that requires the utmost precision and care. As we stand at this critical juncture in Kenya’s legal evolution, we must heed the warnings of scholars, jurists, and the Supreme Court itself, and resist the siren call of a bifurcated system that promises clarity but delivers only confusion. Instead, we must recommit ourselves to the principles of constitutional supremacy, the rule of law, and the pursuit of justice for all Kenyans, regardless of their station in life or the nature of their legal disputes. Only then can we hope to build a legal system that truly embodies the spirit of equality and justice enshrined in the Constitution, and avoid the perilous path of bifurcation that threatens to lead us astray.
The writer is a legal researcher
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