Derrick Wamalwa has posted Judicial Legislation or Constitutional Imperative? Abortion Rights, Democratic Deficit, and the Counter-Majoritarian Dilemma in Kenya on SSRN. Here is the abstract:
On 21 st September 2019, police Officers walked into a hospital in Kilifi County, and they arrested a 17-year-old girl from her bed. She had just received post abortion care. She was coerced to sign a confession, detained for two nights, and eventually charged with procuring her own miscarriage. The CoA decision sparked a series of constitutional debates, precisely, who gets to decide what the law on abortion should be? By Dint of article 26(4) of the 2010 Constitution, the 2010 CoK, addressed the issue of abortion and on what situations it is permissible. This paper examines the tension between judicial adjudication and democratic legitimacy in the context of abortion rights in Kenya, with particular reference to the High Court judgment in Petition No. E009 of 2020 and its subsequent appeal before the Court of Appeal. At the nucleus of this discourse Article 26(4) of the Constitution of Kenya 2010, which grants parliament a legislative mandate to enact law permitting abortion in defined circumstances, a mandate that has remained dormant for over fifteen years. Ergo, the paper seeks to interrogate whether courts, in intervening to protect the reproductive rights of women and girls in the absence of such legislation, engage in illegitimate judicial legislation that undermines democratic governance, or whether they discharge a constitutionally necessary function that parliament has abdicated. Borrowing from Realism, Positivism and Dworkinian philosophy, the paper argues that the Counter-Majoritarian Critique tends to misdirect its censure at courts rather than at parliament sustained failure to exercise its constitutional mandate. It concludes that the protection of rights that are inherently incapable of attracting majority political support is not a democratic deficit but the very purpose of a justiciable Bill of Rights.
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