• The current anachronism is symptomatic of the interplay between elective and appointive mandates and the order of precedents that espouse causative latent power within the structures of government.
• It also exposes the limitation of litigation due to courts acting in their own self-interest, versus the role of arbitration, away from legalistic procedures.
Kenyans have been treated to high drama between the Judiciary and the Executive. This time round, Parliament isn’t the usual suspect.
Chief Justice David Maraga washed the dirty linen in public, exposing the goings on between the two arms of government.
He first protested the executive order by President Uhuru Kenyatta to re-organise government. He claimed the President doesn’t have constitutional powers to institute changes in the Judiciary (Article 132).
The Constitution confers powers to the President to appoint the Chief justice and judges, after recommendation by the Judicial Service Commission, in which the Attorney General and the Law Society of Kenya are represented. The Chief Justice is the chairperson.
The Executive, on the other hand, claims to have intelligence on the conduct of some of the 41 proposed judges.
Maraga avers that the President doesn’t have residual constitutional powers when it comes to appointing judges, painting the President as a mere rubberstamp.
The CJ also says the Executive is defying court orders, for instance the recent Kariobangi evictions, and compensations for victims of accidents caused by government vehicles. Further, the sanctity of court orders is in question, as they have also been used to circumvent justice to the weak in society or abet corruption, ie the anticipatory bails.
Is Kenya truly governed by the rule of law, and is the peaceful co-existence between the arms of government beneficial to the people?
In our jurisdiction, the rule of law is more about the exaction of power as it’s more often unevenly applied. In Britain, which we borrow our legal regime from, the rule of law preceded state building, since the Catholic Church had a well-established ecclesiastical court system in the 12th century when there was widespread fragmentation of political power.
The Justinian code, the concordance of discordant canons (decretum) by Gratian and the magna carter all preceded effective state formation and accountable government.
What we are dealing with in Kenya is the existence of a constitution, versus legislation, as a means to exact rules of natural justice, within a coterie of competing ethnic micro-nationalities that are used as composites for nation building.
As Joseph Stalin asked with regards to religious law, how many divisions does the pope have? In our context, we can also ask, how many divisions do judges and magistrates deploy to make rulers obey the laws according to their interpretation?
What is the recourse to resolve these tensions?
The Law Society of Kenya led by Nelson Havi proposes a mobocracy in the name of an LSK AGM where all and sundry shall adjudicate and administer a verdict on the suitability of the holders of the positions of the AG and the Solicitor General to continue to practice as advocates.
In addition, LSK proposes to institute a petition to Parliament to impeach the President. The 12th Parliament is largely composed of Jubilee and NASA members, whose principles are engaged in the ‘handshake’, which is aimed at healing the ethnic fissures that threaten project Kenya.
Politics being a game of numbers, it doesn’t matter how eloquent or persuasive one is on the floor of the House. At the end of the day, it’s the numbers that count.
The Executive and the Judiciary resorting to the court of public opinion exposes the inadequacy of our dispute resolution mechanisms as far as checks and balances in the tree arms of government are concerned.
For example, it’s unprocedural for any court to injunct legislative proceedings. Also, we need to examine if the backlog of cases in the Judiciary is as a result of the number of judges and/or corruption and inefficiency clogging the courts.
Pre-emptively, the motivation of the Executive is to accumulate political power through nation and state building. The role of Parliament is to tame that political power through oversight, while the role of the Judiciary is to arbitrate that taming through legal interpretation.
This is the essence of the current hierarchical antagonism we are witnessing today. In short, the Executive would want to govern without the law, the Legislature restricts it by making the laws. The Judiciary interprets the law. This has now morphed to the Executive controlling Parliament by determining its leadership and proposing bills.
Parliament lays claim to the power of the purse (budget), while the Judiciary has increasingly exercised its tyranny on interpreting constitutional legalism.
The current anachronism, therefore, is symptomatic of the interplay between elective and appointive mandates and the order of precedents that espouse causative latent power within the structures of government.
It also exposes the limitation of litigation due to courts acting in their own self-interest, versus the role of arbitration, away from legalistic procedures. Those who have power have no knowledge and those who have knowledge have no power. This is the information gap that intelligence organs seek to fill in for presidents and prime ministers to complement their coercive power.
However, such information is usually not admissible in a court of law as evidence due to the very nature of how it is obtained. It is, therefore, critical that more work be done to ensure sound and seamless transitions between the political, legal and the executive design of our government to build a better Kenya.
The BBI is a good starting point since as the President said, he can sense a constitutional moment. This should be used to cure the malady of reform and implementation. We shall revisit.