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President not obligated to honour CJ’s advisory

By George Nyatundo | November 18th 2020

Kenya is constitutionally a multi-party republican democracy. It’s a unitary state with trappings of federalism through devolution of power to the county governments. We the people of Kenya are the repository of all sovereign power under this scheme. The Judiciary must, therefore, enjoy an unparalleled status as the sentinel of the rule of law and the Constitution.

Indeed, it’s now incredibly Kenyan to turn almost all disruptive social, economic and political questions into judicial games. In its effort to neutralise antagonising intentions, the Judiciary shall ensure that justice is served irrespective of status.

The great function of aligning all laws with the constitution by courts qualifies them as first among equals. In this endeavour, the Judiciary shall uphold standards that inspire an open and democratic civilisation founded on the desires and aspirations of Kenyans.

This judicial intervention has lately stimulated inexplicable uncertainties. In particular, the power balance between the three arms of government. Some political horses have labelled it as a defiant judicial behaviour. Raising the counter-majoritarian difficulty, they claim that political judging is a huge attack on the right of the sovereign people to self-govern. They denounce the increasing helplessness before an alleged antidemocratic bully; indeed, a despotic bench of a handful of law lords.

It is idle to debate about the supremacy of courts in a democracy. The Judiciary is distinguished by its high constitutional function of adjudication and delivery of justice. This does not posit that courts’ activities are beyond reproach. But, their pre-eminence epitomises the latest global urge and gesticulation to submit to the tenets of constitutional intercession and settlement.

Outright unconstitutional

Chief Justice Maraga’s dissolution of Parliament advisory to President Kenyatta ought to be considered from this perspective. His severe castigation of lawmakers for constitutionally failing to enact the gender law is a symbol of disciplined integrity guided by principles of justice and democracy geared to protect and promote sound national and constitutional values.

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Sadly, his wisdom has been attacked, questioned and condemned from almost all political leanings. And as a trend, the advisory has now evolved into a candidate for judicial intervention for supposedly being premature, dangerous, and outright unconstitutional.

This counsel follows a cycle of public salvos by members of the three arms of government. The annulment of the 2017 presidential election results gave rise to a call to fix something allegedly wrong in the Judiciary. The Executive’s blatant refusal to appoint 41 judges for more than a year after Judicial Service Commission’s recommendation extended bad blood between the Judiciary and Executive. The realignment of constitutional and independent institutions, including the Judiciary through an Executive Order was another source of ill-will. The hostility cemented with the CJ’s lamentation against impunity and contempt by the Executive.

The attacks directed at the CJ, therefore, imply a calculated plot intended to overawe and intimidate the Judiciary. It’s incontestable that Maraga’s authority personifies an institutional function that deserves utmost respect from the powers that be. It ought to be emphasised that upholding and preserving the ideals and principles of law and the Constitution is a collective calling and duty of all arms and instrumentalities of government

Six petitions filed pursuant to Article 261(7) of the Constitution ignited the prerogative. This provision underscores the law-making power of Parliament and calls for the president to dissolve the house on the CJ’s advice if it fails to legislate in accordance with the Constitution.

This jurisdiction covers any question of law or fact on which the existence or the extent of a legal right depends. In practice, when the president receives a recommendation from the CJ, he may, for sufficient and satisfactory reasons, respectfully refuse to comply with it.

Indian and Canadian courts have held similar intrigues non-obligatory. They have underlined that advisory opinions do not amount to properly established judicial adjudication. It’s a non-binding question of law in a dispute between two private parties. An opinion cannot be enforced or executed since it’s neither a decree nor an order of court. The president may, nevertheless, choose to accept and treat as binding an advisory by justifying such concession with relevant provisions of law.

Political wrath

Filing of petitions with the CJ asking him to render advice adds no compelling legal weight behind this jurisdiction. Nor does the use of the auxiliary verb ‘shall’ change anything. It’s a sweet-sorrow that actually means “may”. In fact, The American Supreme Court has ruled that “must” is the only word that imposes a mandatory legal obligation.

Undeniably, the objective of an independent and accountable judiciary is to ensure that the state cherishes the rule of law and accords fitting legal and constitutional guarantees for individuals. Thus, the process of administration of justice must be conducted with high standards of predictability and consistency. This requirement can best be met only by judicial officers due to their skills and rigorous legal training devoid of influence over the sword as the Executive or political wrath of the Legislature.

It’s evident that the Judiciary is the pivot around which our governance system and structure is built. Chapter Four is the chief cornerstone. The rights enumerated as well as contemplated therein are not granted by the State and are inalienable. To ensure the sanctity of such rights and freedoms, the courts have been clothed with a constitutional and statutory firewall against the might, whims or superintendence of any person or authority. It is, therefore, the role of courts to do justice and uphold the rule of law without pleasing anyone.

The begriming spectacle of Judiciary ombudsman as captured in the BBI report besmirches the concept of judicial independence. It will be a back-door extension of the long arms of the Executive in the province of the Judiciary. With such malicious and fatal recommendation, the bench will mutate into a cage of parrots through various bullying techniques. It’s a ploy that seeks support in a reed instead of a walking stick.

As a people, we have preferred through our brave and innovative constitutional promise to secede from our sour and bitter past. This pledge delivered a daring constitutional organism that not only regulates the sharing of power, the structure of representation, and the description of individual rights and freedoms, but also yearns to institute a transformed political and just underpinning for the Republic. Indeed, it heightens the jealousy between arms of government; a golden feather on its crown. 

-Dr Nyatundo is a legal scholar in India. [email protected]


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