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Judiciary's dilemma: Damned if they decide, damned if they don't

By Macharia Munene | Published Mon, March 12th 2018 at 00:00, Updated March 11th 2018 at 22:38 GMT +3

In the world of governance, unwritten principles of statecraft require that all organs of state work in harmony with each other, even when each maintains its separateness and independence. This is particularly the case in states that have “republican” forms of governance and in some monarchies, termed constitutional monarchies.

In those monarchies, governance is a mixture of traditions, paying homage to individuals called king/queen as symbols of state and the actual governors of that state. Irrespective of the form, governance is a blend of chosen institutions, working together in the interest of the state. Each is, or should be, manned by individuals with clear understanding of what the national interests of the particular state are.

In ordinary parlance, key institutions of state are the Executive, Legislature, and  Judiciary that purportedly balance each other within the context of that state. Although, in theory, all the three are separate and equal, the Executive is more equal than the others because it is the one mandated to defend, and to run the affairs of, state.

To deliver, however, the Executive needs the collaboration rather than the hostility of the other two. Similarly, the other two need the Executive to get their work done. The arising logic is that the three would collaborate on the essentials to secure and advance state interests, and probably quibble on small issues. None of the three should lose the “big” picture of the state survival and well being.

Unreasonable judgements

Knowing the limitations of each institution in the state helps in the collaboration and to avoid interfering with each other’s domain. It is this knowing that explains the unwritten principles of statecraft that players in each institution should strive to adhere to. Key among them is to avoid making decisions that cannot be enforced, those that are ultimately in vain. There are three possible reasons for making decisions in vain.

First, there could be possible good intentions of the decision maker, appealing to higher conscious, as he makes a decision that he knows cannot be enforced. Second, ill motive, vendetta, or simple desire to fix somebody. Although the decision maker would know the decision is wrong and not enforceable, he still does it out of spite. Third, institutional power play, trying to show which institution is more powerful than the other. In that case, the undermining of the others would be the driving motive. Irrespective of the rationale, decisions that are in vain hurt the institution doing it and the state in which it operates.

Of the three state institutions, the Judiciary is the most affected and should be most conscious of the need to uphold the principle of not making decisions that are in vain. It does not have enforcement mechanism and relies on the Executive, or its own funding, which comes from the Legislature. It is therefore an institution that operates on public veneration and faith that it can be trusted to act justly.

The Judiciary, therefore, is expected to be extra careful in making decisions that would ridicule it because of the absurdity or because of the unenforceability of the decision, or both. It is actually in the Judiciary where the principle of not making decisions in vain is most pronounced.

Smart jurists find ways to escape inherent dilemma while others who are not so smart plunge states into deep chaos. In the 19th Century US, Chief Justice John Marshall, figuring that he could not enforce a decision to help a party colleague in the Marbury case, outwitted President Thomas Jefferson and looked good simply by claiming he had no power to help. In contrast, Chief Justice Roger Taney precipitated the US Civil War in the 1857 Dred Scot case and looked bad. Taney decreed that blacks were not included in the US constitutional preamble of “We the people” and therefore could not sue because they were not US citizens.

Judges who show inclination to make strange decisions often encourage judicial entrepreneurs to be active. Entrepreneurs file petitions to specific courts often to embarrass. Not nobly driven, they use the courts as political weapons and some judges fall into the trap, either willingly or by not being alert to the chicanery involved.

Often, such judges sound ridiculous on two counts. First, they make decisions that interfere with the functions of other state institutions and thereby violate the principle of separation of powers. Second, they either know or should know that the decision they make cannot be enforced. They appear hostile to the interests of the state but what is not clear is whether that hostility is deliberate or inadvertent. Either way, in ignoring the principle of not making decisions in vain, they fail to act smart and subject themselves to long-term ridicule.


Prof Munene teaches History and international relations at USIU Africa


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