By Stanley Muema
In the last few months, the Kenya’s Judiciary has experienced a tumultuous and at times unfair and unjustified judicial criticism from the Executive and Legislative arms of government. It is evident from various quarters that the recent rulings by the courts has brushed the government the wrong way. It is common behaviour that when one is offended they get agitated and often take retaliatory actions against such offensive acts or omissions. However, it is the highest form of ignorance and immaturity for anyone to get aggravated over another for simply stating the truth.
I am aware that a lie has a way of convincing the majority, but am also aware that, truth crushed to earth will rise again. But even when such is the case, it appears the majority of the legislators in the National Assembly, have not understood the role of Judiciary opting to just reprimand every decision the court makes. They are simply miffed by how the courts wield much of power when it comes to upholding the principles of the rule of law and in the interpretation of statutes. This article is intended for those that did not like the way the court had pronounced itself when making such orders as;
• Quashing of the government’s order to close Dadaab refugee camp
• Order declaring that criminal libel was unconstitutional-a move to safeguard the freedom of expression & the right to information
• Suspending the Communication Authority’s decision to snoop into Kenyans phones and such other orders.
First, the law does not operate in a vacuum because, in the end, it is closely tied to power – to fine, to jail, to sanction, to regulate and to restrict. Law in its basic form is always speaking. Judges and Magistrates are only called upon to interpret the law but not to change it. That is why any purported illegality advanced by a party will be trumped and that makes it scary when it becomes unhinged from a sense of principle in its application. But that is the purpose of the law.
Recently, I was taken aback when legislators led by Garissa Town’s Aden Duale (National Assembly majority leader) had threatened that they would file a motion against High Court Judge George Odunga over his conduct.
They had threatened to do so as the judge was preparing to rule on an application to stop Parliament from debating the proposed amendments to the election laws. Though such threats were not new and that anyone would just seek to dismiss Duale’s remarks as just but wild and unthinkable verbose, any brilliant observer would say that his remarks were only intended to undermine the Judiciary.
Another instance that took the government by surprise was in early this month, High Court had ruled that it would be unconstitutional to close the world’s biggest refugee camp, which houses more than 200,000 people who have fled war in neighbouring Somalia.
The court ruled that the order by the government would adversely affect the refugees and that it was discriminatory in nature and went against international treaties that protect refugees from being forced to return to persecution, adding that the Kenyan government had failed to prove Somalia was safe enough for the refugees.
While on the one hand there could be underlying factors that prompted the government to issue such orders, the truth is the procedures in which the same was used and owing to the fact that Kenya has ratified various international treaties in so far as the protection of human rights is concerned, the manner in which the closure of the camp was ordered or done was the question before the court. And the court made its decision on the matter upon looking at both local laws and international treaties that Kenya is a party to.
Therefore, those that are vexed and infuriated by the way the courts are exercising their judicial responsibilities especially those in the Executive arm of government, allow me to break this to you;
There can be no difference of opinion in any public debate that our judiciary must both be independent of the executive and must also be competent in itself.
The people of a nation may lose confidence in the Executive or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human rights and civil liberties. The judiciary contributes vitally to the preservation of peace and order by settling disputes between the State and Citizens and among citizens which lead to a harmonious and integrated social existence. Equity, Justice and good Conscience is an accepted principle of judicial functioning in almost every legal system. The judicial institutions especially the Courts are not only Courts of law, they are also the Courts of justice. And what constitutes just act to one may not be necessarily a just act to another.
The greatest proponent of the “Rule of law”, the one, A.V. Dicey, in 1885 is quoted to have said, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence or arbitrariness, of prerogative, or even wide discretionary authority on the part of the Government.” Another significance, which Dicey attributed to the concept of Rule of law, was; “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts.” The principle implicit in the Rule of Law that the Executive must act under the law and not by its own decree or fiat is and should forever be the cardinal principle of our democracy.
For a democratic government, Rule of Law is a basic requirement, and for the maintenance of Rule of Law, there must be an independent and impartial judiciary. In a State professing Rule of Law, the aim should be to provide for a system which secures to its citizen’s adequate procedure for the redress of their grievances against the State before forums which are able to administer justice in an impartial manner without any fear or favour.
The judiciary is the final interpreter and the guardian of the Constitution. In the Kenyan jurisdiction, the judiciary is constituted as the ultimate authority to restrain any exercise of absolute, capricious and arbitrary power. The Legislative action of a majority has to undergo the scrutiny of the legal elite, the judiciary. The human rights are secured and the tyranny of the majority is contained, that is to say, the legislative and executive action are counter balanced by a judicial verdict. Democracy has no alternative but to accept the Courts as the sentinel and the guardian of liberty and freedom.
Therefore, those politicians who castigate every decision made by the courts merely because it does not favour them should learn that the doctrine of judicial supremacy is considered as a duty of every judge to treat as void any enactment that violates the constitution. This principle was expressed by Willoughby when he said, “the fundamental principle of the constitutional jurisprudence is that laws and not men shall govern.”
The proven truth in the saying that ‘a politician thinks of the next election, and a leader thinks of the next generation” must re-awaken our conscience in support of the judiciary to strengthen its wall from the influence of the Executive and intimidation of the selfish politicians. After all, there is only one thing worse than injustice, and that is Judiciary without her sword in her hand.
Stanley Muema is a research consultant with Savic Consultants.