Ambassador Godec’s Remarks at the Law Society of Kenya National Conference

Ambassador Godec’s Remarks at the

Law Society of Kenya National Conference

August 24, 2017

Mabibi na Mabwana

Hamjambo!

Thank you for inviting me to address the Law Society of Kenya.  It is wonderful to be here with so many distinguished lawyers.  Thank you too for choosing Kenya’s amazing coast for your conference — it’s great to be back.

Your theme this year, “Safeguarding the Rule of Law and Democratic Gains,” is excellent.  It is a topic of critical importance, and a key concern to both Kenya and the United States.  Our mutual commitment to the rule of law is the cornerstone of so much of our work together in furthering justice and strengthening our democratic institutions.  Only through a commitment to the rule of law can we ensure sound democracies that advance our shared goals of prosperity and security.

When we consider the role the rule of law plays in a democracy, we often talk about safeguarding or protecting it, but from what?  First, to instill confidence in the law, it is fundamental that it be applied equally.  No one can be above the law.  Everyone must have confidence that no one will be deprived of its protections.  Transparent and equal application of the law to all is vitally important to any strong democracy.  Having a reliable process, especially in the most challenging of times, is essential.

Second, and just as important, is the idea that the government itself must be accountable under the law – just like any person.  When the government is placed in the same position as the individual with respect to the rule of law, private citizens can trust in the leaders they choose and the democratic institutions they have constructed.

Kenya and the United States share these ideals.  We have enshrined them in our Constitutions.  Article 27 of your great 2010 Constitution of Kenya requires that:

Every person is equal before the law and has the right to equal protection and equal benefit of the law.

Nearly 150 years earlier, in 1868 with the ratification of the Fourteenth Amendment to the United States Constitution, the same ideal was recognized as a fundamental requirement of our democracy:

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

But even in the mid-1800s this was not a new idea.  This is an ideal recognized from the earliest concepts of democracy.  In detailing the importance of the rule of law Aristotle explained, over 2000 years ago, that:

[I]t is more proper that law should govern than any one of the citizens [and that] if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws[.]

What Aristotle said then, and what the Law Society of Kenya is saying now, is the same.  The rule of law must be protected.  It must be safeguarded by all.

As we know, no system is perfect.  The drafters of the U.S. Constitution acknowledged this in our Preamble, understanding that our American democracy, as with all democracies, is always a work in progress.  As Kenyan lawyers, you all play a role in making a more perfect Kenya when you protect the rule of law.

In both Kenya and the United States there have been and will always be challenges to preserving and enhancing our democratic institutions — and to the rule of law itself.  Yet, when faced with any conflict or controversy, it is the rule of law, when applied independently, equally, and transparently, that allows us to overcome any challenge, no matter how difficult.

When no individual is above the law, and when even the government is held accountable to the rule of law, democratic institutions thrive and societies prosper.  This has always been true.  Certainly when Aristotle conceived of guardians and servants of the laws he must have been thinking about you all.  In your work every day you fulfill a crucial role of carrying out the essential function of a successful Kenyan democracy.  You safeguard, you protect, and you promote, the rule of law.

In the United States, as in Kenya, the strength of our democratic institutions is directly proportional to our adherence to the rule of law.  And it is the strength of those institutions which underpins so much of what we depend on in our everyday lives.

A simple property dispute between two neighbors, a major legal battle between corporations, disputes between different branches of government — no controversy is too big, or too small, to be resolved peacefully, transparently, and reliably when the rule of law is applied equally.

This is true, too, of political disputes… including the question now on the minds of many Kenyans.  Kenya’s Supreme Court, once again, is faced with a critical set of questions around the conduct of a presidential election.

Let me stress at the outset, as I have so often in the past, the United States has no preferred candidate in Kenya’s presidential election.  And we likewise have no preferred outcome with respect to the case before the court.  Our only goal is to help guarantee the right of the Kenyan people to choose their own leaders freely and fairly.  We seek only to defend democracy and protect the democratic process. With the IEBC having done its work conducting elections on August 8, now the Supreme Court must adjudicate the case before it, based solely on the evidence and the law.  The case must be given a full, transparent, and independent review by the court.  The Supreme Court is the proper constitutional venue to resolve presidential election disputes.

Courts and judges have a central responsibility for protecting the rule of law and delivering justice.  But with this right comes a responsibility, the responsibility to judge fairly in accord with the Constitution and the facts.  More broadly, the commitment of the judges and lawyers to the rule of law is critical to instilling confidence in your democratic processes.  The desire for democracy, fueled by a strong commitment to the rule of law, has benefits too that go far beyond the resolution of political contests.

One of the most encouraging features of the Kenyan legal system is the commitment to the goal of a law-based process.  Faithful adherence to reliable process transcends any dispute and any individual while guaranteeing to all Kenyans the benefits of a strong democracy.

For example, economic success is tied directly to sound democratic institutions and promotion of the rule of law.  The level playing field needed for businesses to compete fairly is dependent on a predictable and transparent legal and regulatory environment.  In that type of environment, reliability prevails and with that reliability investment, trade, tourism, and economic growth all thrive.  It is also essential to combatting corruption, a plague that continues to undermine Kenya’s future.

Beyond economics, successful administration of your criminal justice system depends on the same steadfast adherence to the rule of law.  Kenya is moving forward in this area as well.  Advances are being made in legal aid, through your Legal Aid Act of 2016.  And strides are being made to resolve cases more efficiently through the use of plea agreements.  Through these efforts, Kenya continues to invest in the promises and protections of your 2010 Constitution.

Each of you, in your own way, also invests in the promises and protections of your Constitution.  If you faithfully pursue the rule of law in your work as lawyers, it will instill confidence in the country’s institutions.  Indeed, the success of your nation, and ours, is tied directly to the shared respect for the rule of law.  So, I commend you for your work.  Each of you has it in your power to strengthen the rule of law in Kenya and advance the goals of your remarkable Constitution.

I urge each of you to do all you can to turn the ideals of that landmark document into reality.  I wish you heartfelt bahati njema (good luck) as you continue to strive to bend the arc of the moral universe toward justice for all Kenyans.

Pamoja Tusonge Mbele

Asanteni Sana