Legislative autonomy extends to court orders, this is why

Charles Kanjama
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Probably the most important judgment of 2013 is October’s appeal decision in Joseph Mwaura v Republic. A five-judge Court of Appeal overruled its own previous 2010 decision, Godfrey Mutiso v Republic, where it had declared the mandatory death penalty for murder unconstitutional. The Mutiso court had been guided by a plethora of authorities from Zambia, Uganda, England and various West Indies nations.

In a stunning rebuttal, the Mwaura court demurred, “It is incumbent upon any court intending to... determine a matter to first ascertain the entry point to the doors of justice, and that is jurisdiction... In our understanding, courts have no jurisdiction in matters over which other arms of government have been vested with jurisdiction to act... To say otherwise would be to act in complete contravention of the Constitution.”

The judges added, “As judges, our mandate is fidelity to the Constitution and to the law. We cannot interpret the Constitution and other statutes whimsically where no discretion or window has been provided... In our view, to say that there are other alternative sentences to the mandatory death sentence is a pedantic and preposterous interpretation of the spirit and letter of the Penal Code and the Constitution of Kenya 2010.”

And if that was not a sufficient beat-down of Mutiso, the Mwaura court nailed the coffin with this: “The Court cannot purport to be ahead of the people of Kenya or Parliament...” The Mwaura judgment can help to answer the question of the moment, namely whether Parliament was right to ignore court orders in the JSC tribunal matter.

Parliament answered this question in Speaker Marende’s “Solomonic rulings” of February 2011 and Speaker Muturi’s recent ruling of October. Marende had affirmed, “It is settled law in the Commonwealth and beyond that every independent Legislature is the sole judge of how it shall conduct its own affairs. The Speaker... is mandated and obligated to safeguard and jealously protect its sovereignty within Government, to determine what it shall or shall not do... without interference from any other person or authority.”

Marende added, “This position is recognised in parliamentary practice and traditions and in both the former and present Constitutions. The view that it can fall to another organ, whether the Executive or the Judiciary, to determine for Parliament a matter before Parliament is, to my mind, constitutional heresy; which I would urge that every person in this country... completely purges and disabuses themselves of.”

A week later, Marende noted that Parliament’s legal immunity meant that the Court could only rule on completed actions of Parliament. He spoke with pellucid clarity, “What the Judiciary cannot do is to stop or prevent the National Assembly from undertaking its mandate. Neither can the Judiciary compel Parliament. The principle ensures that Parliament... is not prevented from giving voice to the will of the people. An attack on this principle is an attack on the sovereignty of the people [and] a grave attack on the Constitution.”

Marende then proposed to avoid court injunctions, “The orders of the High Court... must be construed to have been made with the intention to abide by the Constitution, and will be so interpreted by the Speaker...”

So, question is, should Parliament go to court to set aside such offending orders? Courts have repeatedly affirmed that court orders must be obeyed, and if a party believes an order is wrong, it should apply to court to set it aside else the country falls into anarchy. This makes sense. Yet, a court order cannot be obeyed before its terms are understood.

Parliament cannot “jealously guard” its autonomy if it submits when courts issue conservatory orders then innovatively extend their mandate, a process called “creeping jurisdiction”. In Kenya, this was witnessed in the Vetting of Judges case, where both the High Court and the Court of Appeal asserted jurisdiction over the Vetting Board despite the Constitution’s sixth schedule stating, “a removal or a process leading to the removal of a judge from office [through vetting] shall not be subject to question in or review by any court”. (s.23(2))

The answer seems clear. If there is a conflict between the principle of obedience of court orders and the principle of legislative autonomy and separation of powers, which flows from supremacy of the Constitution and sovereignty of the people, the latter principle must prevail. Because one thing worse than legal anarchy is constitutional overthrow.

The writer is an advocate of the High Court of Kenya