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It’s possible to temper public good with primacy of the law

By Kamotho Waiganjo | June 5th 2021
Newly sworn-in Judge of the Court of Appeal Justice Amraphael Mbogholi Msagha takes his oath of office at a swearing-in ceremony held at State House, Nairobi on June 04, 2021. [PSCU, Standard]

In the midst of palpable anger against President Uhuru Kenyatta’s Madaraka Day speech targeting the Judiciary, including from latter day converts into constitutionalism, the essence of some issues the president raised, has unfortunately been lost.

Yet, these issues call for introspection as we nurture our young democracy. While the Executive is routinely under fire for flouting the constitution, most critically through its regular disdain for court orders, censure of the Judiciary is always perceived as a threat to its independence. Like all public institutions however, the Judiciary must be open to criticism.

One valid criticism was implicit in the president’s speech. On occasion, the Judiciary has issued decisions that appear shockingly inconsiderate of their dire social and economic disruption consequences.

Recently, the High Court determined that members and chairpersons of various parastatal boards were appointed illegally, hence required to vacate office. The soundness or otherwise of the decision notwithstanding, not much consideration appears to have been given to the institutional instability that would follow dissolution of the boards of key entities some of which give strategic services to the nation. The letter of the law was paramount, all other considerations deemed unimportant. Obeying that decision would come at a major cost on the nation. Would there have been less disruptive recourses that affirmed the law but balanced its immediate application against the broader public interest? To use the president’s words, who ought to bear the burden of that choice?

Some examples of when the courts have made public interest considerations include the 2017 case in which on the eve of the presidential election, Justice Odunga, while finding that the returning officers were in office illegally, refused to order cancellation of the election citing the possible chaos that would flow.

In another case in 2012, Mars Group filed a suit challenging the constitutionality of the budget passed by Parliament. Mwalimu Mati and team had wanted the National Treasury stopped from withdrawing the budgeted funds from the Consolidated Fund for spending. In his judgement, the late Justice Joseph Onguto agreed with the petitioners on the unconstitutionality of the budget passage but refused to stop the Treasury from spending the funds due to the disruption on the economy.

He, however, ordered the Treasury to ensure future budgets would follow the law. More recently, Justice Antony Mrima determined that the appointment of the CASs and some CSs without vetting were unconstitutional. However, the judge refused to send the affected officers home and instead required the Attorney General to regularise the matter and report to court within set timelines. The three judgements and several others show that it is possible to affirm the primacy of the law while ensuring the court’s decisions do not produce devastating consequences that injure the very public who the law is seeking to serve. When courts give judgements that are on their face unreasonable or even impossible to execute, it undoubtedly does not give the Executive legal justification to disobey them. It, however, grants the Executive legitimacy to argue that obedience of such orders is against public interest.

While we continue to fashion our democracy into one where the rule of law is supreme, the Executive must respect and abide by court decisions or subject them to a stay or appeal process where it disagrees. But the Judiciary must also introspect on ways in which judicial officers can temper their remedies so that compliance orders, even where impropriety has been found, do not cause severe injury to public interest. This is not about accommodating the Executive. It is about constantly asking the public good question as was done by Justices Odunga, Mrima and Onguto. 

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