BY JASPER MBIUKI
Hardly a day goes by without the media carrying a report alleging the existence of an ever-expanding supremacy battle between the Legislative and Judicial branches of Government. While some of these reports can be dismissed as understandable sensationalism driven by the commercial imperative to sell more papers and achieve higher ratings; there can be no denying that the relationship between our parliamentarians and judges is not a good one.
Parliamentarians in both Houses see the Judiciary as ‘activist’ and insensitive to the principle of Separation of Powers; while judges depict Parliament as being contemptuous of judicial authority and disdainful of the precept of the rule of law.
The bone of contention is the question as to whether the Judiciary should issue conservatory orders against County and National Legislative Chambers, stopping them from undertaking certain action pending the full hearing and determination of court challenges.
While parliamentarians concede that the courts are constitutionally endowed with the power to issue such orders they however aver that what should be a circumspect power only utilised in the most extreme of circumstances is being used willy-nilly by a Judiciary that seeks to lord itself over the other two branches of Government.
What particularly pains legislators at both the County and National levels the most is that such orders are given ex-parte, that is, with only the claimant/applicant being present and without the knowledge and input of the concerned legislative chamber. They argue that it is a fundamental breach of the rules of natural justice for such orders to be issued in circumstances where the affected party is ignorant of the proceedings and is unrepresented before the court.
On their part, judges speaking off-the-record point to the numerous examples of previous Parliaments disregarding court orders given at judgment stage where no conservatory orders were issued at the beginning of the proceedings. They argue that without conservatory orders being issued the main matter is rendered academic; a situation compounded by the obvious difficulty in compelling obedience of final orders against the Legislature.
Both sides of this divide have valid points as well as obvious blinkers, in equal measure. This situation is to be expected, given that the Constitution of Kenya 2010 is still in its infancy. The new Constitution was a marked departure from the former constitutional order and the tried and tested processes of engagement that underscored the relationships between the three arms of Government can no longer apply. Everyone is learning, trying to assert themselves and make the best possible position for themselves in the ‘Grand Bargain’ that is constitutional democracy.
Parliament does not assist its own case by continually stating that it will defy court orders that it does not like. It is well nigh impossible to make a case against sweeping ex-parte conservatory court orders when legislators so often go on record and state that they will not abide by the decisions of the courts due to a British legal anachronism called Parliamentary Supremacy, which does not even strictly apply in Britain anymore and most certainly does not apply in Kenya post 2010.
Dicey’s legal theory on Parliamentary Supremacy was expressly written out of our constitutional order by the framers of the 2010 Constitution. No person or authority in modern day Kenya is above a court order.
That being said, parliamentarians do have a point when it comes to the alarming regularity with which the courts are issuing sweeping ex-parte conservatory orders against the other arms of Government. The universal practice is that such orders are only issued where the substance of the matter in court would be rendered moot without such orders. This does not appear to be happening in Kenya.
Stopping County or National Legislatures from performing their constitutional mandates pending the full hearing and determination of a case challenging the same is subordinating the legislative calendar and functions to the Judiciary. Where this is done without the judge hearing the other side of the argument it is tantamount to inviting disobedience. There can be no harm in allowing actions of the Legislature to proceed but assuring the claimant that the court will determine the matter expeditiously and if his or her claim is upheld the action would be declared illegal, null and void. Only in the direst of circumstances should the action be stopped pending full hearing and determination.
If at the end of the court case the Legislative Chamber chooses to defy the court; then the court MUST institute contempt proceedings. It is no good judges complaining that their orders are not obeyed when they encourage disobedience by not applying the tools of enforcement and compulsion available to them.
Ultimately, both the Judiciary and the Legislatures have not covered themselves in glory in all this. The People of Kenya do not want to see ego and posturing prevailing over commonsense and mutual respect. Our judges and our legislators should iron out their differences away from the media spotlight and develop the constitutional conventions that while not written into our sacred document are an integral part of Kenya’s Constitution.
(Mbiuki is the TNA Secretary for Legal Affairs. Email: firstname.lastname@example.org)