By Shadrack Muyesu
Often unsaid about Marbury v Madison is that the Supreme Court did not demonstrate judicial independence in an order but only asserted it in dicta. Apart from brief, sporadic spells of renaissance, courts have, since then, followed this trend. They rarely stand up to the Executive. Its perhaps time we asked ourselves, is Marbury the powerful authority (on judicial independence) it is made out to be? More importantly, considering the obvious conflict between legal text and historical reality, will the Judiciary ever be an equal partner in government?
The Judiciary is a weak species. In the words of Alexander Hamilton, it neither has influence over the sword nor the purse; it has no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the Executive arm even for the efficacy of its judgments. As he (Hamilton) argues elsewhere, the Judiciary is left with little choice but to consistently bend to the whims of the Executive to guarantee its survival.
Although in Hamilton’s mind was perhaps the idea of a judiciary that could be limited by the conjunctive effort of the Executive and the Legislature, even doing away with it, his argument remains true for our government set up today. A holistic reading of the Constitution of Kenya, 2010 reveals an arm that is still at the mercy of it’s should-be equivalents. Budgetary allocations, appointment procedure, arrest and investigation as well as the inherent weakness of the law of contempt of court are some obvious loose ends.
From a deliberate effort to weaken it at conception (as in the case of the Constitution of the United States) to contempt, history is defined by a consistent presidential defence of the executive power. At the base of this defence are the electoral legitimacy the Executive enjoys in comparison and the frustration that comes with courts limiting the Executive’s agenda. It’s been argued that if the president were to be held responsible for everything from air quality to voting rights, he would want to have the power to actually set the standards
Critics warned that independent judges would gradually elevate the Judiciary over the other arms and to the pinnacle of government, a reality which in their view posed the greatest danger to democracy. In a letter to Charles Hammond, Thomas Jefferson wrote:
“It has long been my opinion, and I have not shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity day and night, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all shall be consolidated into one…”
Presidents Franklin Delano Roosevelt and Andrew Jackson present perhaps the most absurd attack on the Judiciary by the Executive in the free world. In 1937, afraid that his legislative agenda risked being undone by the courts after integral elements of his New Deal program had been defeated in the Supreme Court, and riding on a popular wave of public anti-judicial sentiment – coupled with his own (popularity) – President Roosevelt launched a judicial reform plan in which he attempted to change the composition of the courts. He failed.
President Jackson was even more elaborate. In 1832, displeased with the decision of the court in Worcester v Georgia, he remarkably declared, “John Marshall has made his decree, now let him enforce it.” Jackson summarises the courts’ powerlessness in enforcing decisions against state agencies.
The Legislature remains the most powerful arm of government in the liberal democratic set-up. Almost every presidential decision has to be approved by it (in principle, executive decrees though important tools of presidential function, lack the force of law). The Legislature also makes law, controls the purse, the military and the presidential term. The idea that an arm could have so much power yet so little political responsibility has been a source of great frustration for proponents of centralisation of state power.
For this reason, it is important that the President controls parliament. While, in principle, such a powerful organ should stand beyond executive control, independence is hard to achieve in highly differentiated societies where politics is defined by tribe. Locally, as long as the alliance between the President and his regional point men (the de facto party leaders) remains strong, legislators have no choice but to dance their tune. Rebellion means political disaster. The Judiciary cannot win against a powerful alliance of the Legislature and the Executive.
On October 31, 2016, the Hon. Justice Onguto rendered a judgment against the then Cabinet Secretary for Devolution and Planning, Mwangi Kiunjuri, among others, compelling the CS to, within 14 days, appoint and gazette a date for the coming into operation of the Public Benefits Organisaton Act, 2013 (Act No. 18 of 2013). The CS ignored this order. And when the matter duly came to court for contempt, the High Court, though acknowledging that the CS was in contempt, bizarrely ordered an amendment of the original judgment and decree to remove the name of Kiunjuri and replace it with that of the Cabinet Secretary, Ministry of Interior and Coordination of National Government as the first Respondent who was then granted 30 days within which to comply with the order.
While the ruling of the court in this instance made good sense (considering that the functions in relation to the Public Benefits Organisation was transferred to the Ministry of Interior and Coordination of National Government shortly after the judgment was delivered), the development only highlights the escapist nature of the Executive when faced with unfavourable judgments and the inability of the courts to punish this behaviour aside from further escapism. Yet, with fairness to the courts and in criticism of the applicants in this matter, not only was the agent who gave the orders (for the deferral of the functions in issue to another ministry) cited for contempt, he/she is not known.
There are many more examples all of which can be traced back to the weakness of the legal regime governing contempt in Kenya (in spite of recent improvement), the weakness of the legislature and the apparent disinterest of the public (informed by tribalism and ignorance) in spite of a progressive constitution.
Currently, the Government Proceedings Act Cap 40 does not envisage execution proceedings against government. A decree-holder’s only salvation is to obtain a writ of mandamus against a public duty bearer which he holds in hope since contempt proceedings against the duty bearer (where he fails to comply) neither guarantee a payment of any entitled monies or punishment of the relevant public agency. At best, the duty bearer or the accounting officer will be committed to jail or the agency prevented from prosecuting any other matters in court pending compliance with court orders – the former order which often is incapable of enforcement depending on the importance of the officer and the agency he represents to government.
Although these officers could still be jailed this does not stop the hidden hand of the Executive from continuing to manipulate issues in the background. A friendly officer could always be appointed as replacement. With the introduction of Chapter 6 on leadership and integrity and other powers of oversight and impeachment, the drafters of the Constitution hoped that, in such instances, the legislature would be a final defender of public good. It was meant to investigate and punish public officers where courts were unable to do so. Unfortunately, because of political and ethic interests culminating in an alliance between it and the Executive, neither House of Assembly has been able to duly carry out this function. Contemptuous public officers are rewarded with contempt, as a section of the public cheers and as the Judiciary watches, helpless. ^