Judiciary is a political actor in a democracy

By APOLLO MBOYA

In democracies, courts have a crucial role to play in exercising checks and balances on the other branches of government. At times, this brings them very close to the political game itself, of power structures and competition for hegemony.

In every political process there are different parties, whether individuals, parties or institutions and it is only natural that disputes will arise.

 So it seems logical that when disputes like the impeachment of the Embu Governor Martin Wambora arises, a neutral third party — a court — will be the final arbiter. I was therefore prompted to explore the question of Justiciability or the limits upon legal issues over which a court can exercise its judicial authority of purely political disputes.

Whenever courts entertain political disputes, they also become political actors, although they may not be very eager to agree to such a description. Courts can gain from such positioning — they can gain political power, and legitimacy, if they maintain or perceived to maintain a neutral position.

However, there is more courts can lose as well.  In political contestations, the Court does not exactly act neutrally, and it is obvious (and predictable) on whose side it placed itself at the conclusion of the case. In any case, what we have is one party to the dispute which works very closely with the court, while in the eyes of the other party, the legitimacy of the court is questionable.

Judiciary as a neutral arbiter in political contests is a polite fiction that we occasionally tolerate, but in which most observers never truly believe.

With a Supreme Court of Kenya, it has become strong a political actor and even at any level of the judiciary, when a court intervenes in political matters, it will likely face accusations for coming to the rescue of one of the parties, for political rather than legal reasons.

The issue of constitutional petitions and judicial review by High Courts, is the most obvious and spectacular type  of judicial politics, as it often involves repealing a law passed by the legislative branch through judicial policy-making by means of creeping statutory reinterpretation.

The underlying theme that emerges is contemporary political responses to controversial exercises of the judicial power. Courts face intense criticism and the potential use of aggressive checking measures from political actors, a new climate of hostility which characterise the relationship between the arms of Government.

Assuming one takes law seriously, the question arises of whether we can conceptualize judicial behaviour as a choice between political or judicial action. The linkage of both arises because legal clarity and accuracy can never be achieved because legal decisions always involve political considerations.

The assumption is that there is an obligation of courts to deliver principled decisions resting on legal reasoning from the statute and/or prior case decisions.

Yet this still leaves much leeway for choice between competing interpretations and methods of legal reasoning that restrict and a shape policy choices.

DEVOLVE INTO FOG

Courts are a conglomeration of individual judicial officers whose activity focuses on their individual decisions, which are explained in terms of policy preferences, values and attitudes.

Therefore the court is as opaque as it is powerful and every attempt to understand the court’s rulings devolves into a fog of hypothesis and speculation.

When judicial secrecy is coupled with a one-sided presentation of the issues, the result is a court whose reach is expanding far beyond its original mandate and without any substantive check. Yet when the Judiciary is invited into political disputes, the question it must first determine is whether the issue is at hand is unripe or moot. An unripe question is one for which there is not yet at least a threatened injury to the petitioner, or where all available judicial alternatives have not been exhausted. A moot question is one for which the potential for an injury to occur has ceased to exist, or where the injury has been removed.

However, if the issue is likely to reoccur, yet will continually become moot before any challenge can reach a court of competent jurisdiction, courts must allow a politically moot case to be litigated.

According to the political question doctrine is closely linked to the concept of justiciability, court only has authority to hear and decide a legal question, not a political question.

Legal questions are deemed to be justiciable, while political questions are non-justiciable.

Some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political, then the court must refuse to hear that case under guise of lack of jurisdiction and leave that question to some other aspect of the political process to settle out.

The perversion of the justice system where political jurisprudence makes courts political agencies with judicial officers as political actors must be avoided.

Courts are well-advised to take into consideration what can be gained and what can be lost from such political engagement.

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke