It's not just about the law, consider other aspects in making court rulings

Deputy Chief Justice Philomena Mwilu follows proceedings as Senior Counsel Philip Murgor is interviewed for the position of Chief Justice at the Supreme court on April 16,2021. [Collins Kweyu, Standard]

Recent developments enabled the public to watch the unfolding institutional power play between the Judiciary and Executive regarding who has priority over what.

The vetting of aspirants who wish to become the next Chief Justice or Judge of the Supreme Court was one. The courts nullification of Executive appointments was another.  

The vetting provided good public education on aspects of judicial operations and theories. At times, it seemed like an intellectual contest between JSC commissioners and the candidates on concepts of justice, law, and constitutional interpretations.

This came out clearly in Deputy Chief Justice Philomena Mwilu probing the meaning and impact of the 1803 US Supreme Court decision in Marbury vs Madison.

Former Chief Justice Willy Mutunga once made it clear that context matters in every case. Political context mattered as newly elected President Thomas Jefferson and newly appointed Chief Justice John Marshall tried to outwit each other on who interprets the constitution.

Marshall outwitted Jefferson by claiming he had no power to enforce unconstitutional law even if it favoured political friends/colleagues.

Since Marshall was a federalist, an Alexander Hamilton ally, the Jefferson-Marshall friction on constitutional interpretation was an extension of the Jefferson-Hamilton debate on what the government could or could not do; the narrow interpretation and the broad ‘implied powers’ debate.

Unless the constitution specifically allowed it, asserted Jefferson, it could not be done. The government had ‘implied powers’, countered Hamilton, to do everything and anything in delivering services and promoting national interests unless the constitution specifically forbid it.

Marshall repeatedly had his broad interpretation way until he found his match in General Andrew Jackson, the man who made ‘democracy’ popular, when Jackson told Marshall to enforce his own decision.

Courts probably issue orders in vain for either of two reasons. First, the judge might be obsessed with legal technicalities, oblivious of national interest, and does not consider the likely consequence of the decision.

Second, the judge might be engaged in mischievous contest of wills, as in Marshall and Jackson, fully knowing the decision cannot be enforced and tries to make the executive look bad.

In interpretation contests, the ‘rubberstamp’ question arises and forces search for balance between legalistic dictates and safeguarding the state. Should the executive accept everything given to it when it has serious reservations?

While avoiding being captive to executive desires, should the judiciary ignore concerns of the other branches of government? If it does, it erodes its own public standing. Kenya has faced scenarios in which the President and the Chief Justice differ on how the state should be run.

This became vivid when the court attempted to derail government operations. By declaring the position of Chief Administrative Officers unconstitutional, the court effectively revived the debate on narrow and broad interpretation of the constitution.

Former Senate Deputy Speaker Kembi Gitura, applying the ‘implied powers’ doctrine argued that Kenya’s 2010 Constitution does not ‘forbid’ appointment of assistants to Cabinet Secretaries.

This made creating CAS position ‘broad’ and ‘implied powers’ interpretation; court nullifying CAS was ‘narrow’ interpretation. The eventual verdict is not in.