DIALOGUE IS NOT THE BEST WAY TO END EXECUTIVE WAR ON THE JUDICIARY

Camara Castro Ouma

Discussion on the essence of promoting and upholding the rule of law should not create sympathy towards any arm of government. It is something that is enshrined in our constitution which actually indicates there has to be total adherence to it. Negotiation with regards to obedience of the law creates a roadmap to anarchy. Different arms of government should work within their constitutional limits as enshrined in various provisions of the law. The president as the chief custodian of the rule of law should always ensure that any of the decisions he is making are law abiding and they do not create cause for a declaration of unconstitutionality.

Our country has recently witnessed a series of onslaughts on the judiciary which could potentially lead to anarchy. Article 131(2) of the Constitution of Kenya states that the president shall respect, uphold and safeguard the constitution. (Article 131(2) Constitution of Kenya) The constitution clearly states any action of the president should protect the law. However, that has not been the case. The executive has put foward negotiation as a basis for adherence to the rule of law. Even though Alternative Dispute Resolution is enshrined in our constitution under Article 159(2)(c), dialogue is not the best way to end executive war on judiciary. (Article 159(2) Constitution of Kenya ) An impartial and independent judiciary promotes protection towards the law hence, it should be protected from any internal or external war.

The Bangalore Principles state that the judiciary is the bedrock of democracy and even the rule of law. Even when all other protections fail, the judiciary provides a bulwark to the public against any encroachments . (UN Economic and Social Council (ECOSOC), UN Economic and Social Council Resolution 2006/23: Strengthening Basic Principles of Judicial Conduct, 27 July 2006, E/RES/2006/23,)Article 160 of the Constitution of the Republic of Kenya provides that during the exercise of judicial authority, the judiciary shall be subject to the constitution and the law and shall not be subjected to the control or direction of any person or authority. (Article 160 Constitution of Kenya 2010) There should be no favouritism when deciding who is subject to the rule of law and negotiation when it comes to upholding the same is unacceptable. If the executive has a problem with any judicial officer, there are avenues that can be followed in addressing such issues. Some of the channels that can be followed include initiating a petition against a rogue judicial officer. There is the Judicial Service Commission which has been given the power pursuant to Article 168 of the constitution.(Article 168 Constitution of Kenya 2010) A citizen, including the president can petition JSC through writing, and setting the alleged facts constitution grounds for the removal of a judge.

Decisions are based on the jurisprudence of the law, when an individual is unpleased with a decision, there is a legal framework that should be followed for the decision to be reviewed and also there is the appeal process. Martin Shapiro proposed “political jurisprudence” as an organizing principle for the study of courts and judicial decision making. In his combination of politics and jurisprudence, Shapiro expounds on reasons why the courts should be understood as part of political and governmental structure. (Shapiro Martin ‘Political Jurisprudence’ (1963) 52 (2) Kentucky Law Journal.)

The Chief Justice as the chair of the Judicial Service Commission should not tolerate negotiation as a way of promoting obedience of the law. This is because it creates a culture of disobedience of the law.