Shaping judicial conduct under political constraints

By APOLLO MBOYA

A group of parliamentarians have made several threats to the Judiciary, ranging from fresh vetting of judicial officers to reducing its financial allocation.

The Leader of Majority in Parliament addressed a Press conference and accused the Judiciary of acting in the interest of militia, the corrupt and drug peddlers, among other criminals. All these have come about due to judicial decisions arising from parliamentary action.

Whenever a court handles a case involving the interests of those controlling the Executive and Legislature, those interests can threaten to obstruct the court’s intended outcome. The actual impact of judicial decisions often depends on the behaviour of executive and legislative bodies that implement the rulings.

There are two relatively permanent and potentially extremely powerful constraints on judicial review in democracies: threats of noncompliance and legislative override. Courts generally rely on the Executive and Legislature to implement their rulings. Consequently, when a court is handling a case involving the interests of the two institutions, those interests can threaten the court with disrupting implementation of its rulings. This can take one of two general forms. The Legislature can threaten to override the court’s ruling by drafting new legislation consistent with the ruling they prefer, or the Executives can threaten to obstruct, ignore, or mis-apply court rulings. These two types of threats are particularly relevant where the Legislature, Executive, and Judiciary are selected through (at least partially) independent processes and therefore are likely to have some conflict of interest.

In Kenya, the threats to the Judiciary reached a crescendo, as expected, with the enactment of the Constitution of Kenya 2010. Are courts, in fact, responsive to these threats? Separation of powers models generally assume that judges respond to these threats because they pursue policy goals with their rulings.

Obviously, both noncompliance and override can undermine attempts by courts to shape policy. In the long run, if court rulings are seen as toothless, potential litigants may choose to resolve their disputes elsewhere, thereby reducing opportunities for the court to affect policy.

So far there is no evidence that the courts do in fact respond to these threats. For these political constraints to shape judicial behaviour, a court would need the means, motive, and opportunity to decide cases counter to the interests of the actors controlling the constraints.

First, courts lacking the legal authority to interpret or strike legislative acts, for example, do not have the means to induce threats of override. The unanimity requirement is often cited as a reason that revision of law is a weak political constraint on the courts.

The threat of revision of law is essentially the ‘nuclear option’ – exceedingly effective, but difficult to use — and is therefore a relatively ineffective and non-credible means of controlling the Judiciary. The question is to what extent such constraints shape judicial rulings.

We would not expect political constraints to matter because courts cannot be expected to strategically adjust rulings to mollify legislators and avoid legislative override and noncompliance. Political constraints require careful theoretical modelling of the institutional setting of the Judiciary in order to overcome these problems. There are several ways of doing this. First, the Judiciary should deal firmly with those who act in contempt of its orders. This may require jailing of high valued contemptors, especially those who direct the threats and hurl abuse at the Judiciary and its officers.

Second, the Chief Justice must defend the institution he leads by condemning the bullying and threats directed to his judicial officers by the political class. Politicians have long questioned, or even been openly hostile to, the legitimacy of judicial authority, but that authority seems to have become more secure over time. Once the Executive is no longer perceived as a fundamental threat to constitutionalism, judicial power is construed as an obstacle to achieving political ends. But politicians should harness judicial independence to serve their aims rather than to openly undermine its legitimacy.

Our system of democracy depends on judges being supported in the exercise of their constitutional obligation to protect the basic rights of individuals and decide cases fairly. While we may disagree with decisions and actions of public officials including judges, it is unacceptable and unfair for our judges to be criticised and even vilified when no judicial basis for such criticism exists.

In times like this, the Bar must now be the greatest defender of the judiciary. Public vigilance to protect and defend the role of an independent Judiciary in the wake of this political attack is more than needed to safeguard the rule of law.