Pursuit for judicial independence appears like supremacy war

NAIROBI: Amid rising concern of acrimonious relationship between the Senate and the courts, the President reiterated to the Judiciary this week that they should respect the constitutional mandate of the other branches of government. He had also told off the Judiciary in February this year after the courts injuncted the Senate from summoning governors. The situation has deteriorated since, and the Senate Speaker has vowed to go ahead with the impeachment process of Makueni Governor after the courts barred it from doing so last week. In the past few weeks, the courts have challenged Senate’s mandate in summoning the governors on their oversight role, overturned their decision to impeach a governor, and suspended a legislation made by the Senate on county development boards, effectively crippling the work of the Senators.

But the overbearance of the courts is not limited to the Senate. It had summoned the National Assembly speaker to court over the media bill and threw the National Assembly’s suspension of JSC members into the dustbin last year. Recently, it stopped a county assembly from debating a motion, and challenged another assembly’s power to impeach a county executive. The Executive too has had a tiff too many with the Judiciary, particularly with the exparte injunctions awarded to plaintiffs in major procurement contracts.

The Chief Justice has made it clear that the courts will fight to ensure their independence and has told off detractors. His brief to legislators and the Executive is simple — if you are aggrieved by a lower court’s decision, proceed to a superior court! There is little doubt that Kenyans hold the courts in maximum high regard; in fact, opinion polls place it as the fifth most highly trusted institution in the country. And the import of its mandate in Article 165 of the Constitution is not in doubt — review and possible invalidation of the actions of the Executive and Legislature, and any other state organ, in order to ensure they abide by the Constitution.

But perhaps it is the exercise of this latter mandate by the some judges that seems to irk legislators. Whilst acknowledging their role in providing checks and balances in the powers of the other branches of government, there are legitimate concerns that courts may be intruding into functional spheres of the Legislature. And this raises concern on how prepared our judges are in our new constitutional dispensation that savours distinct roles, with clear timelines, for legislatures. In South Africa, prospective judges are extensively questioned by the Judicial Service Commission about their understanding of separation of powers doctrine.

In the US, rarely do courts intervene in the proceedings of the Congress; judicial unwillingness to impute an improper purpose to a Congressional investigation is a tradition. The courts hold that Congress’s power to investigate in oversight was as broad as their power to legislate. This is why their Supreme Court authorised Congress to compel production of information by the Executive, as outlined in Article 125 of our Constitution. The power to oversight and demand information is an integral part of the legislative function of Parliament. The general rule is that any matter that can be legislated upon can be investigated by Parliament. I hold the view that Legislature can diligently inquire into grievances such as that of Equity Bank sim card deal by Communications Authority whatever the status of the organisation.

Courts must appreciate that parliamentary hearings are adversarial, and the Executive is bound to rush to court but the courts must be restrained in issuing exparte orders when it is abundantly clear there is no irreparable damage suffered by the plaintiff. This is necessary to ensure that legislatures carry out the oversight mandate.

Oversight will ensure that the Executive complies with the legislative intent and executes the law, prevents executive’s encroachment on legislative prerogatives, ensures executive policies reflect public trust, and to deter waste, fraud and abuse of office. Clearly, vigilant oversight is just as important as making laws. And the courts will greatly help this country by allowing the legislature to execute its mandate.