Normalised wickedness. That is what it is. I am talking about how one arm of government, the legislature, has seemingly comfortably wrapped itself in the warm arms of the Executive when, on the other hand, the Judiciary is strongly refusing to be wrapped and dropped in the locked box of the Executive.
The learned friends spent a good part of the ending week issuing press statements against the Kenya Kwanza government for what they see as an affront to their independence. Except for a few government apologetics, there was little doubt left in the public that the Judiciary is not willing to play second best to the Executive.
The principle of separation of powers is meant to ensure the Executive, legislature and Executive have distinct roles and responsibilities. One arm should not encroach on the territory of the other. They are interdependent to ensure no one arm usurps the power of the other to begin bullying, cajoling or abusing the other.
The Judiciary's protest in the past week is a clear indicator that the learned friends understand one or two things about the separation of powers. The legislature on the other hand, which, ironically, is the branch that creates and amends laws, watched the drama from a distance. There was no official communication from the lawmakers defending the principle of separation of powers.
The legislature is a very important arm of government. It should not sit in the arms of the Executive like a baby safely, comfortably and soothingly lying in the arms of the mother.
In fact, of the three arms of government, the legislature is a body of elected leaders. The Executive may or may not be composed of elected leaders. Citizens do not elect members of the Judiciary. In the legislature, the elected leaders enjoy unparalleled citizens' approval except, of course, those who rig themselves into office.
This goodwill from voters should be the reason for the legislature to be more vigilant against any form of Executive encroachment on its independence. We saw this during the tenure of Keneth Marende, the once upon a time, Solomonic Speaker of the National Assembly, who stood up for what was good for the country even when his political party, ODM, had a position to be defended.
Elected leaders are the first line of defence for public interest while the Judiciary is the last line. The Executive is meant to be the implementer, not law creators or judges. Elected leaders have the privilege of listening to the concerns, grievances and aspirations of voters and turning them into law.
As an elected leader one has a mandate to engage with primary data upon which law is enacted. This is indeed a privilege that one should never take for granted. Elected leaders have the power in their hands to transform the lives of Kenyans. They have the power to represent, legislate and oversight government operations.
With this kind of prestigious position in society, one wonders why Parliament would bend so backwards to entertain undue influence from the Executive. I still struggle to understand how lawmakers allow members elected in one party to cross over to support another party in a manner that contravenes the Constitution.
This example shows that the separation of powers is not just weak but compromised. Lawmakers stand on a high social pedestal from which they should thankfully serve the people who elected them.
The relationship between the Executive and the legislature should not blur the boundary between the distinct roles. The passing of the controversial Finance Act 2023 in which the contested housing tax is embedded is an example where citizens could not feel the independence of Parliament. It is not a matter of opposing any government agenda.
Far from it, an independent entity holds its credibility so high and so distinctively that the public will be able to make an informed judgment on the validity of any ruling in Parliament. In the same way, the public can tell when the Judiciary plays to the Executive.
-Dr Mokua is Executive Director, Loyola Centre for Media and Communication
