Justice Bahati Mwamuye in the ‘legal emergency room’: Protecting the Constitution through conservatory orders
by admin on | 2025-12-04 08:36:14
Share: Facebook | Twitter | Whatsapp | Linkedin Visits: 26
When democracy is threatened, and state suppression reigns supreme, progressive judges either emerge and arrest the decline, or disastrous judges take charge and embark on a frolic of their own, inventing self-imposed limitations in a bid to appease populist and authoritarian regimes. Autocratic legalism and abusive constitutionalism are normalised when disastrous judges are at the tiller. In the age of populism and democratic backsliding, constitutions and human rights risk being rendered otiose. As such, constitutional drafters have invented ways of preserving the Constitution, which others have described as self-preservation mechanisms/tools. Judges and Military Constitutionalism In other jurisdictions, the self-preservation mechanisms or tools are famously known in András Sajó’s term, military constitutionalism, a concept that has By Joshua Malidzo Nyawa received less attention in Kenya.1 Military constitutionalism is closely related to the sister concept of military democracy. The only difference between the concepts is the timing. Jerg and Stefan point out this difference: militant democracy tries to prevent non-democrats from acquiring power, whereas militant constitutionalism tries to contain the damage even if enemies of the rule of law have acquired power.2 So when populists or would-be authoritarians get to power, constitutions have ways to constrain these autocrats. Tools of military constitutionalism include judicial guardianship of the Constitution, unamendable constitutional provisions and the creation of democratic institutions. Judicial guardianship, as a tool of military constitutionalism, requires a military defence of the Constitution.3 As sentinels of the Constitution, judges are required to be active and alert to arrest any attempt of backsliding. For this reason, conservatory orders, also known as interim, emergency, or provisional measures, are an essential arsenal in the armoury of military constitutionalism.
