Parliament must exercise oversight role over JSC

By Charles Kanjama

In May 1787, James Madison arrived in Philadelphia for a constitutional convention. While waiting for the other delegates, he drafted the Virginia Plan, which became the first draft of the American Constitution. After four months of debate, the final draft of the Constitution was signed by the delegates and thereafter submitted for ratification by the 13 states. To promote ratification, James Madison and two colleagues produced the Federalist Papers, a series of 85 newspaper articles explaining how the Constitution would work.

Madison also played a critical role in getting the state of Virginia to ratify the new constitution.

Then as an elected ember of the first Congress, he sponsored ten amendments to the US Constitution, which became its Bill of Rights. He later became Secretary of State under Thomas Jefferson, America’s third president, and succeeded him as president in 1809.

In Federalist No. 51, an essay published in February 1788, Madison explained the concept of checks and balances within government. He observed, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself...”

This point comes into focus in the recent dispute between Kenya’s Parliament and the Judicial Service Commission (JSC). Parliament rightly claims a power to summon any person to appear before it to give evidence or provide information (art 125(1)). In response, JSC rightly affirms the independence of the Judiciary, (art 160(1)). The apparent clash between legislative and judicial power and authority is the question of the moment.

In presidential systems, Parliament exercises oversight of government mainly through committees. This oversight power has limitations. For example, by asserting executive privilege or presidential immunity, American presidents have limited the powers of Congress to subpoena any material or summon members of the executive. President George W. Bush claimed executive privilege against Congress six times, and President Clinton on fourteen occasions. But two decades earlier, President Richard Nixon’s claim of executive privilege in relation to audiotapes of White House conversations during the Watergate Scandal was overruled by the Supreme Court in the 1974 case, US v Nixon.

Nixon was a federal judge who was impeached by Congress, and sought to overturn his subsequent removal through the courts. The Supreme Court declined to interfere, noting that impeachment was both a judicial process exclusively within the powers of Congress, as well as a political question for which the Court was ill-suited to interfere.

In Kenya, it is clear that each branch of government has some control over the other branches. The Executive can veto Parliamentary legislation and is involved in judicial appointments. The Judiciary through judicial review can overturn Executive actions and through constitutional interpretation can invalidate Parliamentary acts. In like manner, Parliament can influence the Executive and Judiciary through the budgeting process, as well as through its powers of oversight (art 94(4,5)).

So the answer to the Kenyan face-off between Parliament and the JSC is this. If Parliament summons judicial officers to answer for their judicial acts, they should decline. However, when the Judiciary is exercising administrative actions, for example finance and procurement, staff acquisition, transfers or discipline, then Parliament clearly has an oversight power.

The exercise of administrative powers in the Judiciary is delegated to the Office of Chief Registrar (art 161(2c)), so as to avoid dilution of judicial power. However, the JSC has a dual supervisory role, as the overall body in charge of ensuring judicial independence, as well as accountability (art 172). In its former role it is independent, but not in its latter role. Indeed, the Constitution expressly requires all commissions, including the JSC, to submit annual reports to Parliament, as well as ad hoc reports upon request (art 254).

Since the recent JSC summons relate to administrative acts, Parliament’s recourse to JSC intransigence is clear. Under article 125(2), it can commence action for contempt. Under article 251, it can start a process of removal of intransigent JSC members. Or it can use its budgetary powers to bring JSC to heel. If Parliament does not assert oversight over JSC, we may soon have a rogue JSC unanswerable to anyone even when it mismanages the Judiciary.

The writer is an Advocate of the High Court of Kenya