Judiciary, like executive and Parliament, must play role to keep the nation safe

Chief Justice David Maraga (left) and Registrar of the Judiciary Anne Amadi at Kisumu Law courts where they made a courtesy call on February 12, 2018. [Photo by Denish Ochieng/Standard]

The basis of any public office, as many have pointed out, is the people it serves. We, the people, are the owners of all authority and sovereignty. We only donate it in different forms to different individuals when it serves us right. And it should always serve us right.

So every time we donate out authority and power, the beneficiaries of the donation must always remember which side of their bread is buttered and pay due allegiance. Because, to paraphrase the sages, we are paying the piper and should by all means be allowed to choose the tune.

In our collective wisdom, complete with our fallibility as humans, we chose to define how to govern ourselves and donated that government to three institutions that we also elected to design in the best way we thought how. We also agreed in principal that the three will be institutions. Not individuals, not tribes and not families or fraternities.

But because institutions need drivers to deliver, we logically decided that we will fill them with persons complete with guidelines on what to do. The bottom line, however, is that the holders of the brief in the three institutions should always work for our good, the collective good.

To aid in the pursuance of the collective good, the Constitution always acts as the overall guide. The Executive, Parliament and the Judiciary are the three arms of government that to whom we have donated the authority to pursue and deliver the “good”. The three must work severally and communally to ensure that every moment is better than its predecessor. Decisions made and actions taken by the courts, the two houses of Parliament and the presidency must always be seen to be geared towards the overall good of the citizenry.

Separation of power

And that should bring us to reflect on some decisions made on our presumed behalf in the recent past and evaluate the wisdom behind them. The country is in a rather precarious situation now with too much anxiety, uncertainty and tension. It obviously is not “the good” we envisaged.

One can rightly argue that the rain, as novelist Chinua Achebe said, started beating us while we prepared to identify who to assign the two roles of Executive and Legislature last year. We all remember the confusion that marked the General Election of August 8 and its immediate aftermath! But the hailstorm and its attendant gigantic hailstones seem to have descended on us when we invited the third arm to intervene in the confusion, as it should.

When the Supreme Court made the unprecedented decision to annul the August 8 presidential election, it sent the country into a deeper level of the confusion it had been called to diffuse. First, because something like that had never happened in the history of the country and second, the guidelines it gave for the conduct of another election were too vague and unrealistic in the short period it prescribed.

The winner in the annulled poll was, predictably, appalled while the loser was ecstatic in his celebration. The situation was however to change a few days later when the seemingly vanquished picked up his pieces, counted his losses and bounced back to the battle ground with renewed vigour while the assumed victor recoiled and began crying foul, yet again. Then October 26, 2017 came and, as they say, the rest is history.

Flurry of activities

From then on it has been one decision after another from the Judiciary. The Legislature is uncharacteristically quiet while the executive seems to have decided to take charge, as it should. But there has been a re-energised debate on the decisions coming from the courts and the reaction, or lack of it, by the executive. Some court decisions have been met with disdain and indifference by the executive arm raising questions whether it is the presidency’s deliberate resolve to ignore its judiciary partner in government.

While I cannot pretend to know what the executive thinks, I cannot help but guess that it might have realised that to make an omelette, it has to break a few eggs, to fully defend and protect the greater public good, some decisions from some quarters have treated with reservations. While the judiciary should be applauded for sticking to the letter of the law, it should be alive to the spirit of the same and strike some balance.

It is time the three arms of Government had a discussion and find a common place to work and be seen to work together for harmony in the country, as they should, and realise the common good.We have seen situations in the past where courts, in good faith, grant rights to individuals only for those individuals to visit terror on larger populations.

As 33rd US President Harry Truman once said, "You know, it's easy for the Monday morning quarterback to say what the coach should have done, after the game is over. But when the decision is up before you -- and on my desk I have a motto which says The Buck Stops Here' -- the decision has to be made. "The buck of peace, stability and protection of lives in this country stops somewhere, the three arms must not pass it. The President cannot pass it.