Newspapers love a constitutional crisis. Tuesday’s editions had headlines: “Koome bars Parliament from Judiciary oversight” (Star), “CJ Koome clashes with lawmakers” (Nation), and CJ Koome fires warning shot” (Standard).
The Constitution says the National Assembly exercises oversight over national revenue and expenditure, and over state organs.
It also reviews the conduct in the office of state officers, which include judges and magistrates and “initiates the process of removing them from office”. (In fact, the National Assembly has nothing to do with the removal of judges and magistrates.)
It is not entirely clear whether the Senate really has any functions that would involve questioning anyone from the Judiciary.
Apparently, it has been trying to do so — because one of the Chief Justice’s complaints is that a Senate Committee on “National Cohesion, Equal Opportunity and Regional Integration” wanted to question the Chief Registrar on diversity in the Judiciary.
The issue is not so much whether there was power to invite the Chief Registrar but the attempt to invite her to three different parliamentary committees on the same day.
But I really want to think about the whole question of Legislature/Judiciary relations under the Constitution, especially when the former summons the latter.
It is important to note that Article 125 of the Constitution says that either House or any committee may summon anyone to give evidence or provide information and for this purpose may compel that person to attend, or to provide documents.
The House or committee has the same sorts of power as the High Court for this purpose.
Basically, this means they may punish a person who disobeys their order to come or supply documents. Such disobedience is a contempt of court.
Though the current dispute is about inviting staff who are not judges, you might be asking yourself, “Can the National Assembly summon the Chief Justice to appear before it and if she does not, order her arrest and imprison her for contempt?
And if so, since the courts seem able to declare what Parliament has done unconstitutional, can they hold that what the National Assembly has done is against the Constitution?
MESS OF CONTEMPT LAW
The National Assembly’s Standing Orders say that it may order the arrest of someone who disobeys an order to come, and may punish them by a fine of up to half a million shillings “having regard to the witness’ condition in life and all the circumstances of the case”.
But why do they do this when the Constitution says its powers are those of the High Court?
At this point, I am less concerned with the law about contempt. In fact, it is horrendously complicated, and if I go into detail, I am bound to get something wrong.
The Contempt of Court Act was held unconstitutional in November 2018 (for the failure of adequate public participation).
For some reason, Parliament has never tried to pass a new Act. A court this year pointed out that the result is that an older Act is revived. And that older Act says: “The High Court … shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England.”
So the Kenyan Parliament’s failure to pass a new Contempt of Court Act leaves it in the rather humiliating position of having the powers of contempt enjoyed by the English High Court “for the time being” – in other words if the former colonial power changes the powers of its High Court, the powers of the Kenyan High Court and Parliament automatically change, too.
However, my concern here is less about the law and more about reaching a sensible way of dealing with this aspect of legislature/judiciary relations.
The biggest issue is dealing with judges. It is fairly obvious that Parliament should not discuss individual cases decided in, or to be decided in the courts. This is generally respected by Parliament.
Parliament is fond of relying on the separation of powers when it wants to object to the courts deciding that Parliament has failed to follow the law or its own standing orders.
In that it is wrong. But it would very clearly be against the separation of powers (which includes that courts decide disputes) for Parliament to try to interfere in a court’s deciding a dispute.
It would also go against the principle of independence of the Judiciary, which is very clearly set out in the Constitution – including that the Judiciary “shall not be subject to the control or direction of any person or authority”.
But does this mean that judges should never appear before a committee of Parliament?
IN THE US
The Parliamentary Select Committee in Naivasha in May 2010 decided that we should have a system of government modelled on the Americans.
So do judges in the US appear before Congress? Can Congress look into trends in judicial decision making or into whether there is too much delay in deciding certain types of cases, or into financial or other administrative matters – and insist that the head of the judiciary or other judges appear before it?
Judges do appear.
For Supreme Court judges, this is usually on budgetary matters. Occasionally, they have appeared to give evidence on judicial administrative matters.
Lower federal judges appear also in confirmation hearings sometimes – giving evidence about prospective appointees. And they have even appeared to discuss issues of possible policy or law.
Judges have refused to answer questions about individual cases.
Our Judiciary has reason to be grateful that Parliament has no role in removing them. Ten years ago, an article in the Atlantic magazine related how especially right-wing American state lawmakers were trying to control judges and create ridiculous impeachable offences.
The author said, “Every judge everywhere disappoints roughly half the population each time he or she issues a ruling. That's the whole point of an independent Judiciary; that it is not subject to the whims and caprices of the majority”.
In other countries, things are less dramatic – but varied, though refusing to discuss individual court decisions would be universal.
In Australia, Ireland and South Africa, it is rare or even unheard of for judges to appear before parliamentary committees. In the UK and New Zealand, it is much more common.
In all these countries, the independence of the Judiciary is given much importance – yet relations between judiciary and legislature are very different.
In the UK a low-key set of documents advises judges on what to do if they are asked to appear before a parliamentary committee.
The head of the judiciary will advise, and there are certain things they should not comment on, including possible changes in the law that may come before the courts.
The head of the judiciary’s office will informally contact the committee and smooth the way so that there is an understanding of what questions are appropriate for a judge. And interestingly “It is … very unlikely to be the case that a parliamentary committee will order a judge to attend”.
HOW ABOUT KENYA?
Clearly, there is no one right approach. And when there is a tendency for other branches of government to complain against the Judiciary it may not be easy to develop an understanding.
It is not that we want to see a cosy relationship between the judiciary and parliament.
There is supposed to be a degree of tension between them. That is what checks and balances are about. Yet open warfare would clearly be counter-productive.
Parliament passes laws that judges have to enforce. If they both understand each other, that can only be for the good.
Parliament passes the budget that includes money for the Judiciary (though it has no control over judicial salaries). Again some mutual understanding is desirable.
Over time, hopefully, there will develop a set of understandings about how judges and Parliament should interact.
Meanwhile, Parliament should surely be careful not to demand that busy public officers of any sort spend too much of their valuable time answering their questions.
