By Daniel Benson Kaaya
Alexander Hamilton pointed out in his paper, Federalist 78, that the Executive “…holds the sword of the community… The Legislature…commands the purse…prescribes the rule… The Judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever.” This argument suggests that the Judiciary is the weakest of the three arms. In his measured opinion, the Judiciary has no will or force, merely judgement.
Hamilton is not the only scholar to make such a controversial observation. French Jurist, Montesquieu, in his treatise, The Spirit of Laws, argues that of the three powers, the Judiciary is next to nothing!
Markedly, this assertion is neither farfetched nor pretentious! The Judiciary has recently had a most testy period in recent times, epitomized by unashamed contempt of court orders. This is because, Hamilton argues, the only unique power that the Judiciary has is that of judgment. Therefore, where such power is jeopardised, it is a clear indication that this arm of government is comparatively weak compared to the other arms that hold state power.
Perhaps it is the fixing that the Executive promised to undertake on the wake of the annulment of the August 8th election by the Supreme Court of Kenya. When the President and his cohorts promised salvos on the Judiciary, it further demonstrated the flaw in this institution. It was an apparent affront to the merely academic and gradually eroding doctrines of separation of power, and that of rule of law.
Further, the steps taken by the Judiciary as a response to the insolent contempt of court orders indicates how meek the Judiciary is. The President of the Judiciary merely issued a statement on failure by State officers to comply with court orders – one had no legal force it. This piece and the statement issued by the Chief Justice share equal purpose; that of commenting on current issues bedevilling the Judiciary.
In addition, the Judiciary Fund is established under Article 173 of the current Constitution of Kenya, which requires the approval of National Assembly. The Article further provides that the Parliament shall enact a legislation to provide for the regulation of the Fund. This further demonstrates how the Judiciary is subservient to other arms of Government. If the Legislature fails to approve the Chief Registrar’s estimates of expenditure, the Judiciary will be crippled operationally.
The Judiciary’s dependence mostly originate from the fact that is a highly passive arm of government as Hamilton conceived in his paper. The Judiciary only receives matters for adjudication, but it cannot actively take part in matters that have not been instituted. Granted, the Judiciary has its powers, which cannot be underestimated. The point is such powers are comparatively weaker to the powers wielded by the other arms of Government.^