The past week has witnessed an unprecedented outburst from the President against orders issued by the courts against his administration regarding his perceived agenda on health, construction of roads, and the housing levy.
The President has turned his attention to the judiciary, allegedly on grounds that it is stalling his campaign agenda, yet on some of the issues, even government agencies have raised valid objections to the said projects for violating the Constitution.
For instance, the President was angered over the Ihithe-Ndunyu Njeru Road, whose construction would see the road pass through the Aberdare National Park, thus threatening the ecosystem of the National Park.
The National Environmental Management Authority, a government agency bestowed with powers of protecting the environment, declined to issue a license authorising the construction and advised the government to redesign the project and search for a route that would leave the Aberdare ecosystem intact.
On the other hand, regarding the ever-controversial Housing Levy, the court issued orders halting its collection due to spirited challenges mounted by litigants on the constitutionality of the said Levy.
The court invoked its constitutional powers bestowed on it under the Constitution to declare any law that violates the constitution as invalid.
Independence
In the last regime, the country witnessed the country’s top judge, Retired Chief Justice David Maraga, capture the attention of many Kenyans in his defence of the independence of the judiciary.
His comments brought to the fore the ever-unending mistrust and turf wars between the post-2010 constitution and the assertive and independent judiciary and a fairly checked Executive. Before the enactment of the new constitution, the president of the day had a strong say and hand in literally determining who becomes a judge.
All that changed with the new constitutional order that has wholly granted the power of advertising, interviewing, and recommending names of judges to the Judicial Service Commission, which inevitably has watered down the executive influence on the judiciary.
This has left the Executive restless, holding the ceremonial role of organising swearing-in ceremonies.
However, worldwide, the executive is never comfortable with a strong judiciary. In many jurisdictions, hardly is there a policy or political question that does not sooner or later turn into a judicial one, whose adjudication may rattle the other depending on how the judiciary rules.
In America, the Supreme Court and the Federal Courts have taken the lead in deciding many of the most heated issues in American politics, more so than the President or Congress.
Vehicle of truth
The Supreme Court of the US has pronounced itself on affirmative action issues, passed judgments that eliminated racial segregation, decided whether women can procure abortion, defined the limits of free speech and free press, ruled on equality in representation, and required legislative districts to be equal in population.
It has also made determinations on life issues in capital offenses. Some years ago, former Supreme Court Justice Felix Frankfurter said the Supreme Court is the “molder of policy rather than an impersonal vehicle of revealed truth.”
Moreover, it will be remembered that in all these turf wars, it is the judiciary that has always emerged victorious.
For instance, it will be remembered that President Franklin Roosevelt, in response to the Supreme Court annulling a number of his legislations for being unconstitutional, announced a plan to expand the Supreme Court from 9 to as many as 15 judges to appoint 6 compliant judges whom he envisioned would deliver favourable rulings regarding New Deal legislations that the Supreme Court had ruled unconstitutional.
He developed his plan to reform the court in secrecy, working with his Attorney General, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.
The war on the court was short-lived. Congress, in a bipartisan approach, opposed the plan, and Roosevelt lost. The Supreme Court emerged victorious, and no subsequent president has revisited the war against the independence of the Supreme Court.
In Israel, Israel’s Supreme Court struck down a key component of Prime Minister Benjamin Netanyahu’s contentious judicial overhaul. The planned overhaul had sparked months of mass protests, threatened to trigger a constitutional crisis between the judicial and legislative branches of government, and rattled the cohesion of Israel’s powerful military.
The court voted to overturn a law that prevented judges from striking down government decisions they deemed “unreasonable.”
The Supreme Court justices struck down the law because of the “severe and unprecedented harm to the core character of the State of Israel as a democratic country.” At the end of the day, it is the president who lost, and the judiciary won.
Verbal attacks
Back home, we witnessed former President Uhuru Kenyatta unleash verbal attacks against the judiciary and blatantly refuse to obey court orders. He, in fact, refused to appoint six judges on the basis of integrity concerns, but the current president appointed them immediately after taking office, thus making the alleged integrity concerns unsubstantiated and baseless.
Furthermore, the country witnessed the prosecution of Justice Philomena Mwilu, pointedly out of the stance she had taken to overturn the 2017 presidential election. True to his word, the former president revisited the matter, and had her arraigned in court, but in the end, the High Court barred her prosecution, and the judiciary won while the president lost.
If one were to analyse the cause of the friction between the Judiciary and the Executive, it would boil down to a desire to wield imperial presidential powers and a big-man syndrome.
A president who respects judicial independence must acknowledge that parliament can, and indeed does, pass vague laws, but ultimately it’s within the province of the judiciary to render an interpretation on whether the law is constitutional or not, in line with the letter and spirit of the law.
Since our constitution is the supreme law, it is clearly provided for therein that the judiciary has the sole power to decide all cases and controversies and, in doing so, decide whether a law as enacted by parliament is constitutional or not.
It then behooves all of us, the President included, to respect judicial pronouncements as that is the essence of the rule of law and having a constitution that establishes a government with limited powers. Simply put, this is to allow the judiciary to have the judicial power to review the constitutionality of laws and government actions. This power in a democracy helps maintain a check on executive and legislative powers.
Exceptions
Writing about limited government in 1787, Alexander Hamilton stated, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one that contains certain specified exceptions to legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.
"Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
What all of us must appreciate is that judicial decisions can at times annoy and irritate, but we have very little choice other than to respect them. If we do not agree with them, we can appeal to a higher court as provided by the constitution.
In favour
It seems, to the president, that when the court rules in his favour, then it is upholding the constitution and rule of law. But when the court issues orders against his administration, then the courts are corrupt, and the judges have been influenced by outside forces.
As president Ruto wages his war against the judiciary perhaps he should also pose and reflect on how he has been a beneficiary of court decisions that many of us disagreed with but chose to respect in furtherance of rule of law and constitutionalism.
Need we remind the president that the sword of justice cuts both ways, and the principles of justice and fairness apply universally, affecting both the accuser and accused? The consequences of legal judgments impact both ways.
To cap it off, I quote a tweet dated 15th May 2021, tweeted at by Ichung’wah, Anthony Kimani, against the previous regime. He tweeted, "Having intimidated, coerced, threatened & bribed County Assemblies, Parliament, Governors, etc., please stop threatening the judiciary.
"It is the people’s last line of defence against dictatorship, beyond them (judiciary), it shall be the people’s revolt that will be undesirable to you.” Any attack on the judiciary geared towards eroding judicial independence will receive significant resistance from the people.
-The writer is Nyamira senator
