Despite criticism, Judiciary remains guardian of Constitution and Rule of Law

By Gibson Kamau Kuria

Kenya: The accusation by President Uhuru Kenyatta, some member of the Senate and some members of the National Assembly that the Judiciary is assisting impunity, corruption, theft and irresponsibility is both wrong and unfortunate. The Judiciary is not doing any of these things. The truth is that the Kenyan Judiciary has acted in an exemplary manner since the new Constitution came into operation in 2010.

As demonstrated below, it has observed the high standards which are maintained by democracies. The Judges have served as true guardians of the Constitution. Those criticizing the Judiciary are the defenders of status quo ante 27 August 2010. Were the Judges to heed the criticism, they would abandon their oath of office which is to administer justice without fear or favour. Judges should treat the current criticism as normal and continue discharging the mandate which the Kenyan people have given them under the Constitution.

Those criticizing the Judiciary are the beneficiaries of the status quo which the Constitution was made by the Kenyan people to disturb or shake up in 2010. The new Constitution set out to turn Kenyans into new men and women and there are many who are finding this task difficult. The choice as to whether the status quo is to change or not was made in 2010 and there is no going back.

The criticism of the Judiciary by the President, the senate and the National Assembly is based on the following misunderstandings:

1.As explained by the Supreme Court in its advisory opinion in The Speaker of the Senate and the Senate of the Republic of Kenya vs. The Hon. Attorney General & Others, Advisory Opinion Reference No. 2 of 2013, following the enactment of the Division of Revenue Act, 2013, by the National Assembly alone, in our country, like such great democracies as the Republics of the USA, India, Germany, South Africa and the Republic of Ireland, the Constitution which is an expression of the people’s will is the supreme law.

All the organs established by the Constitution, be they the Presidency, the Senate, and the National Assembly, must accept this fact following the ratification on 4th August, 2010 of the current Constitution. the Kenyan people have allocated to each of the organs its power and must stay at its corner. The Judiciary is mandated to declare the boundaries whenever disputes arise.

The people of Kenya have done away with the heresy of the supremacy of Parliament which caused untold misery between 1963 and 1988 when amendments to the Constitution turned the country into an authoritarian state. Both the senate and the National Assembly appear to be living under the illusion that Parliament is supreme. It is not - and Article 2 of the Constitution so declares. That Article reads as follows.

2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

 (2) No person may claim or exercise State authority except as authorised under this Constitution.

 (3)         The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

 (4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

 (5) The general rules of international law shall form part of the law of Kenya.

 (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

The issue of the supremacy of the Constitution was resolved on 4th August, 2010.

The National Assembly is unhappy because the Judiciary has asserted the supremacy of the Constitution by holding, in Okia Omutata Okoit vs. Attorney General & Others, High Court Petition No. 227 of 2013 consolidated with High Court Petition No. 281 of 2013 that it is only the Salaries Review Commission which has power to determine the remuneration of holders of public officers including Members of Parliament. The Court merely upheld what Kenyans stated in Article 230 (4) of the Constitution. this reads as follows:

 230 (4) The powers and functions of the Salaries and Remuneration Commission shall be to—

(a)          set and regularly review the remuneration and benefits of all State officers; and

(b)          advise the national and county governments on the remuneration and benefits of all other public officers.

No doubt both President Uhuru Kenyatta when criticizing the Judiciary yesterday were reacting to the ruling of the High Court in High Court Petition No. 518 of 2013; Judicial Service Commission vs. The Speaker of the National Assembly. In that case, the High Court stayed the special Gazette Notice 15094 that appointed persons to investigate the conduct of 6 members of the Judicial Service Commission and generally ordered that the status quo obtaining then remains.

In a country governed by rule of law, there is and there must be a court which declares the law which applies at any given time. In a democracy the citizens accept the truth that there will always be differences of opinion, even on such issues as to whether the Chief Executive was lawfully elected.

As the Supreme Court in the case of Al Gore vs. Bush and recently in the case of Raila Odinga vs. Uhuru Kenyatta show, in the USA and Kenyan democracies, citizens have vested in certain institutions power to take decisions on their behalf. A citizen may not like the particular outcome, but the choice of the institution to take the decision has been made. Those who are criticizing the Judiciary are not playing by the rules of democracy.

2.As the Supreme Court explained in the same decision - The Speaker of the Senate and the Senate of the Republic of Kenya vs. The Hon. Attorney General & Others, Advisory Opinion Reference No. 2 of 2013, the 2010 Constitution is a transformative document or the country’s formula for reconstruction as the Supreme Court pointed out.

Kenyans made it to fundamentally shake up the status quo. Those criticizing the Judiciary are the beneficiaries of the society which Kenyans resolved that they would reconstruct. The reconstruction must bring a little pain but which cure is possible without a bit of pain? That shaking up to the status quo is to be done in accordance with the law and the Judges are the guardians of that Constitution to ensure fairness.

The apparent tensions amongst organs of the Constitution is normal and was expected to take place if the status quo was to be shaken up. The governors, the Senators, the Members of the National Assembly and the President, who shares his power with the National Assembly must come to terms with the new Constitutional order. To avoid tensions and changes is to condemn the country to remain in the unhappy and dangerous situation it was in before the new Constitution was made.

3. Thirdly, tensions between the Judiciary on the one hand and the Executive or and the Legislature on the other hand is normal according to the world’s democratic experience. Indeed, no democracy has matured without managing such tensions. For instance, in 1930’s there was a great tension between President Roosevelt and the Supreme Court of the USA which he accused of not supporting what was called ‘New Deal’ legislation to deal with the great depression.

Between 1967 and 1980 there was a great controversy between the Supreme Court of India, the Legislature and the Executive, which held different views regarding supremacy. The Judiciary took the correct view that it was the Constitution and not the legislature which was supreme. The Supreme Court declared that the Indian Parliament, no matter what majority it held, could not alter the basic structure of the Indian Constitution.

4. Fourthly, in a democracy, all individuals and institutions must obey court orders. Courts have said that the simple and only view is that an order of the court must be obeyed and that those who wish to get rid of it must do so by the proper course of appeal or applying for it to be set aside. For as long as it exists, the order must be obeyed and obeyed to the letter.

The Constitution and all the good laws in a democracy will not serve any purpose if court orders are disobeyed. We have two notable disobedience of court orders. The first one came from the National Assembly which went on to debate the issue of the JSC when there was a court order. The High Court stopped the then threatened disbandment of the JSC. That was disobedience of a court order by the National Assembly.

The second disobedience is the recent one of the Senate where it went on to debate the issue of Governor Wambora and purported to sanction his removal. In all democracies, one thing is clear – that whoever disobeys a court order achieves absolutely nothing. In a country where court orders are not obeyed, it is chaos, not order, which reigns. For this nation to be as great as the Kenyans want it to be, this truism must be given effect. Well done, Kenya Judiciary .

The writer is a Kenyan lawyer.