In Politics 101, one is taught that a democratic government has three arms — the Legislature, the Executive, and the Judiciary. The Legislature, also known as Parliament, makes laws, the Executive implements the laws, while the Judiciary arbitrates when there is a problem with interpretation of the law.
However there is a context under which they all these three arms of government operate. In Kenya’s case, the context is the Constitution — the social contract between the ‘governed’ (ordinary citizens) and the ‘governors’ — those who work and run the three arms of government. But the Constitution is also a living document that keeps morphing as and when citizens want to change something about how the ‘governed’ engage with their ‘governors’.
At a fundamental level, our Constitution assumes that there is a code of conduct that applies amongst the leaders of the three arms of the ‘governors’; a code derived from an understanding that though each runs an ‘independent’ arm of government, they are all interdependent and part of a chain of command that aligns them around each other to serve the people of Kenya. The Constitution then presupposes an unwritten hierarchy of power between and amongst the leaders of the three arms of government. The hierarchy might be unwritten, but it is also obvious.
At the top of the chain is the head of the Executive, the President. The President gets elected through universal suffrage and is the head of state and government and commander-in-chief of the armed forces.
Below the President the next in command is head of the Legislature, the Speaker(s). The Speaker is elected by the majority of the elected leaders, which means they get into office through an election by the people’s representatives, who oversight the government and make laws. Then we have the head of the Judiciary, the Chief Justice. The CJ gets into office through an appointment and vetting by a commission established by Parliament.
Today Kenya is struggling with political instability because the Judiciary decided to become a player on who becomes head of state, and then has continued a supremacy contest with the Executive. The Judiciary decided it has the power to determine how a President is elected — outside the Constitution, which says it is the vote that determines who wins. It decided, through the Supreme Court, that numbers do not matter as much as the process.
After this decision, the Judiciary, which had now more or less taken over overall leadership of the country after delegitimising the Executive, then failed to stop the sabotage of the repeat election they had themselves ordered. It watched silently as the opposition stopped the presidential election from happening in 26 constituencies.
Then again they watched silently as NASA attempted to establish an alternative but unconstitutional government and the CJ even made comments that were interpreted to mean the Judiciary did not see anything wrong with any of the judges swearing in a candidate as President, despite a legally elected President being in office.
Now, we are watching as the Judiciary turns court orders — which are essentially tools in the service of the rule of law — into weapons against the Executive exercising its mandate, which is to implement laws.
Judges are issuing ex-parte orders for the release of suspects who have just been arrested and have not even been presented before court, and way before the expiry of the constitutional period of presentation in court. We have even seen courts ordering the Executive not to investigate particular persons.
This unnecessary confrontation with the Executive will not pay. Courts cannot take up the role of investigating agencies or other roles of the Executive. They cannot make laws. Parliament will make laws and the Executive will execute. The Judiciary will then come in only where there is a conflict.
The Judiciary must, therefore, stop this supremacy fight. They must also stop operating like civil society activists. The nation’s safety and security is at stake.