Appealing to court of public opinion unwise

President Uhuru Kenyatta was resplendent in his red and black ceremonial military uniform. Donning the Commander-In-Chief of the Armed Forces colours, he cut a severe figure. The venue was Nyayo Stadium, the heart of Kenya’s premier city, Nairobi. The message, when it came, was delivered with controlled exasperation. Because the occasion was Jamhuri Day, Kenya’s independence celebrations, it did not leave the recipients with the right of reply.

The gist of the message was that the Judiciary was the weak link in the fight against corruption. The subliminal cues, however, spoke of an assertion of authority by one arm of Government over the other.

The head of the Judiciary’s response was as carefully curated as that of the president’s. Chief Justice (CJ) David Maraga made his remarks from the precincts of Kamiti Prison. The constitutional right to admit to prisons is reposed in the Judiciary and it is in this place that the CJ chose to exercise his right to reply. Nuanced in that reply was that this was one place where the President could not get audience.

There appear to be fault lines between the Executive and the Judiciary that have found expression in public spats. At the core of these disagreements is a pretended autonomy of the arms of Government. Constitutionally, the relationship between these arms is one of interdependence.

Independence is from interference with the operations of each other and not from each other. In practical distinction between the three arms of Government, the Executive is always the ranking arm.

The Latin phrase “Primus inter pares” meaning “First among equals,” aptly describes the constitutional relationship between the President, Chief Justice and the Speakers of the two Houses of Parliament.

The Judiciary

Because the Constitution is at the centre of this discourse, it is worthwhile to delve into how it relates to Government. First off, it creates institutions and electable positions and assigns functions to these. The Government is therefore a creature of the Constitution. Second, just as the institution of the presidency is established by the Constitution, so is that of the Judiciary, which is charged with the ability to interpret the Constitution.

The fact that the presidency is considered first among equals does not make the Judiciary subservient to it, or of less importance. If anything, it is called upon to give guidance to the nation at specific times. For instance, there is now a question of when the next date of Kenya’s national elections will be.

The Constitution expresses that elections be held on the second Tuesday of August every fifth year, as opposed to every five years. Some legal practitioners have stated that as a nation, we are operating on the premise that the next election will be held on August 9, 2022. However, the lawyers argue that would be the 2nd day in the sixth year, hence unconstitutional. If we were to be true to the Constitution, the second Tuesday of August in the fifth year ought to be August 10, 2021. This matter is before the court and is ripe for determination.

Riot act

It is, therefore, of utmost importance that there be amity between the arms of Government. Taking differences to the courts of public opinion can only serve to entrench a host of narratives that detract from service to Kenyans. When the President, in full military regalia, reads the riot act to the Judiciary, it is the credibility of the criminal justice system that is undermined in the eyes of the public. Similarly, when the CJ, an avowed Seventh Day Adventist, who would not take part in Supreme Court proceedings on a Saturday, chooses a church service on Sunday to respond, it is to the court of public opinion that he appeals.

The Director of Public Prosecutions (DPP) has also been guilty of making public pronouncements that seek to find fault with the Judiciary’s role in the corruption fight.

Many opine that this is just a way for the DPP to hide his inadequacies and is in many ways all theatre and very little serious substance.

Public altercations may erode the appeal of the corruption fight. There is, therefore, need for softening of the rough edges of the DPP. Because these are matters that concern the executional mandate of his ability as DPP, he would be well advised to appeal decisions he feels aggrieved about, even all the way to the Supreme Court.

As for Executive and Judiciary, they should have their differences attenuated by calm reason, away from public glare, lest they degenerate into a full-blown cacophony of harsh public displays.

Mr Khafafa is Vice Chairman, Kenya-Turkey Business Council.