Respect for administration of justice is facing a serious crisis

By Charles Kanjama

Every advocate faces the moment when he must advise a client on obeying court orders. And numerous court decisions come to mind, where courts have insisted their orders must be obeyed, and the only remedy for a party who disagrees with a court order is to try to set it aside by review or appeal. This principle makes sense, and is the cornerstone of judicial authority and the rule of law.

Yet every practising advocate can also look back on instances when his client has been victim of disregard by other parties of court orders, and on efforts to correct this abuse through contempt applications or other enforcement processes. We have all come to learn that the one thing certain to get judges furious is parties blatantly disregarding court orders. And we’ve also come to learn, unfortunately, that when the rubber meets the road, not many judicial officers actually commit other parties to jail for contempt. And so our jurisprudence is littered with technical grounds for declining contempt applications, or giving one final warning to the party in contempt, or liberally distributing slaps on the wrist.

Judges and magistrates know this. Advocates have come to learn this. And inevitably, litigants have also realised this. So respect for the administration of justice is facing a period of crisis in Kenya today. And I join other lawyers in insisting that court orders must be obeyed, regardless of one’s status.

But I disagree that this crisis, or the fear of anarchy, has anything to do with the current impasse between the Judiciary and the Legislature. The Legislature is not an ordinary subject of laws. It is a constitutional organ, and even more, one of the three arms of Government, which together with the Judiciary and the Executive are the repository of state sovereignty. So it has special privileges that set it apart from other subjects of the law, and which require an approach of comity between it and the courts.

When a motorist encounters a siren-blaring ambulance or presidential escort, he gives way knowing that vehicle has right of way. To claim the traffic privilege of priority for an ambulance, which is part of the traffic rules, will encourage disregard of the same rules by others is clearly disingenuous. But that’s what some are claiming in regard to Parliament’s attitude to court injunctions.

It is time to rest this canard of anarchy, which has been deployed to compel Parliament’s subordination to the Judiciary. The concept of parliamentary supremacy is unconstitutional; just like the opposite concept of judicial supremacy. What our Constitution recognises is limited delegated authority arising from the principle of separation of powers. No arm of government is superior or inferior to the other, although each is supreme in its own sphere.

Each arm of government checks and balances the other two. I have detected an unconscious bias among many lawyers in favour of unchecked judicial power. Hardly will you find the legal debate about judicial authority recognising legal immunity, which is a balance against judicial power that insulates some constitutional offices from judicial scrutiny, either partially or fully, either temporarily or permanently. Immunity may also limit parliamentary scrutiny of these offices.

Kenya’s Constitution expressly provides legal immunity to four organs: Parliament (art 117), the President (art 143), judges themselves (art 160) and county assemblies (art 196). In addition, diplomatic and state immunity also apply in Kenya, arising from international law (art 2(5,6)).

Last week I doubted that county assemblies had immunity from court injunctions like Parliament. I have readjusted my position. Parliament’s immunity is inherent, while county assembly immunity is derived. However, a close study of the Constitution (art 1, 196), the County Government Act (s.17) and the National Assembly (Powers and Privileges) Act leads to the conclusion that county assemblies share similar immunity like Parliament.

So what is the proper relationship between Parliament and the Judiciary? Simple, each should regulate its internal procedure without trying to control the other. Parliament has freedom to discharge its functions, while courts can only declare completed parliamentary acts unconstitutional.

 

—The writer is an Advocate of the High Court of Kenya