Avoid parliamentary and judicial overreach

APOLLO MBOYA} MODERATION

Classic democratic theory identifies ‘three branches of government’: the executive, the legislative and the judiciary, each of which has its specific role. A complex system of checks and balances should ensure that no single branch of government comes to dominate another.

The ‘separation of powers’ should ensure the independence of each branch of government. The degree of separation between the three branches varies considerably depending on constitutional design and the overall architecture of the political system in any given country.

BEMOANING

The Constitution 2010 has witnessed the emergence of assertive Legislature and Judiciary that has culminated into structural conflicts between the two institutions. The Executive is also bemoaning with His Excellency the President appealing to members of Parliament to recognise that we have a new system of government in which we must work in a manner that is consistent with the choice of the 18 Cabinet Secretaries.

The President made the appeal against Parliamentary summons to the Cabinet Secretaries which he felt does not allow them to execute their mandates.

The medium fuelling tension between the Legislature and the Judiciary is the growth of constitutional litigation, in which judicial officers are issuing court decision that are calibrating bureaucratic institutions vis-à-vis the Legislature.

This is not a surprise whenever reforms are being undertaken which require increased appropriations of remedial goals, new enabling legislation, or some other kind of affirmative legislative performance. In this kind of scenario Legislators often resist intrusions into what they conceive as their legitimate realm of discretion and refuse to act in accordance with the judicial plan.

Parliament must always keep sight of judicial pronouncements and rulings because of three reasons. Firstly, the power of the judiciary to interpret the laws made by Parliament, to give meaning to the words used in a statute and to fill in the gaps. Secondly, the judicial power to declare a statute unconstitutional and thirdly, the power of the courts to invalidate constitutional amendments.

Parliamentary misadventure since promulgation of the Constitution has been witnessed in the enactment of the Division of Revenue Act where the National Assembly ignored the views of the Senate, the passage of the Kenya Information and Communication Bill targeting the freedom of the media and the refusal to abide by the court order with regard to the debate of the report recommending a tribunal against six members of the Judicial Service Commission.

To prod legislature into cooperation, courts must employ various means, including moral suasion or, in certain cases, the threat to close down the offending legislative institution.

PUNITIVE PENALTIES

In the face of parliamentary resistance, courts should not shy away from adopting more intrusive measures to overcome legislative intransigence such as ordering Members of Parliament, on pain of fine and imprisonment, to enact legislation required by a court decree and where there is defiance of a court order, imposition of punitive penalties on the members of Parliament who either vote against such legislation or participate in Parliamentary debates in defiance of a court order.

Attempt to ridicule the Judiciary by Parliament will always boomerang on the politicians because the Judiciary will always win the populace who look up to the Judiciary in a democracy.

The dividing line between the judicial activism and judicial overreach is a thin one. Even though the Constitution has spelt the functions of the Judiciary, the Legislature and the Executive very clearly and the lines demarcated for their territories are also well marked, the Constitution does not contemplate a super organ nor confer an over-riding authority on any one organ.

No organ has any power to superintend over the exercise of powers and functions of another, unless it is strictly spelt out in the Constitution. Judges challenging the acts of politicians may seem “super legislature” and “super executive” but not to the people who feel wronged and look for relief.

The right to make laws which is a function of the Legislature is not supremacy but a function to be discharged with humility. Moreover, this function is open to questioning by the people who can ask the courts to review them.

However, we should not worry too much because in common law countries, the tension between the Executive and the Judiciary is the inevitable result of the doctrine of separation of powers. Subtle shifts in the balance of powers are continually taking place, whether explicitly or implicitly.

Conflict between the three branches is inherent in the notion of “checks and balances”, as each branch of government seeks to impose its views. The perpetual interplay between the executive, legislative and judicial branches is one of the characteristics of a democratic system of government.

Being elected by the people does not transfer any unalloyed wisdom on the legislators and the sooner our legislators shed the illusion of their supremacy, the easier it will be for the people to keep their faith in democracy.

 

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

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