Politics and the rule of law

By Ali Abdi

“For today, in the name of freedom, we take the battle to them” – Optimus Prime

We all sometimes admire a politician who admits to being a puppet. But just as all those who call themselves developers are practically thugs, admitting to being a puppet does not mean cutting the string from the puppet master and when it comes to the rule of law and politics, just like a puppet, well, to cut the story short, who cares about the rule of law?

It is trite that one of the fundamental laws of logic is the law of non-contradiction on what is right and what is wrong. However, logic also dictates that there are times when breaking the law and doing wrong is necessary, where disruption becomes a prerequisite for any meaningful and positive social change. There are points in history where we should look at a crime and understand the larger social content and, potentially have that effect, our determination of guilt. It is said that everything happens for a reason, that there is a bigger plan and that what is meant to be, will be. Well, what happens when the rule of law becomes blind and our democratic free will becomes an illusion – the perception that we the people are malleable.

Evidently, even from a very early age, we are drawn to what we don’t understand, with an evolutionary incentive of trying to make sense of what seems to be unexplained, or else where else does one begin to understand the temerity fronted by democratically elected local leaders when, on one hand, they ask us, the people, to rethink democracy as it is not serving us well and, on the other, pose the question as to how, if ever, elections make our lives better?

Further, it is true that, elections are just but a tip of the undemocratic iceberg as evidenced by scenarios where key issues raised by elected officials are nowhere near reflected by public policy decisions. The clever despot, observed French philosopher Michel Foucault, binds us by the chains of our own ideas. We who seek to build democracy must not be bound by the false assertion that the rule of law is democratic. This is characterized by the hollow rhetoric we hear on a daily basis, that we live in a country with a contemporary foremost democracy, but a closer examination of current events exposes just the opposite.

From a narrow legal point of view, the rule of law consists of a number of principles such as ‘nulla poena sine lege’ – there is no penalty without a law – that new laws should be publicly promulgated, reasonably clear, and prospective, that judicial decisions should be in accordance with law, issued after a fair and public hearing by an independent and impartial court, and that they should be reasoned and available to the public, and a few others, and that therefore it is important to put our current travails in perspective. Is the rule of law, in our country, a cosmetic exercise designed to fool the people into believing that some kind of control is conducted by the judiciary for the government or, if loosely put, is it just but a commodity to be held by the judiciary in trust for the public? And can elected officials with dubious democratic credentials be truly democratic by promoting democracy in the rigorous sense of the word? 

Rule of law

Thomas Paine in his pamphlet, ‘Common Sense’, quoted, ‘The law is King’. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; there ought to be no other. However, our nation is rapidly becoming one where we no longer align ourselves with ideas and concepts on the rule of law but with demographics and demagogues. Ironically, it is the ones who are bleating the loudest about acceptance, tolerance and adherence to the law who do the least of either of these activities. Therefore on going back to the basics, what is the rule of law?

Rule of law can be loosely defined as an idea about law, justice, and morality. It is a principle of general evolution in democratic societies which holds the view that the law of the land is supreme. It signifies that everyone should be equal before law, that is, no matter who you are, whether a governmental official or a peasant, you will be subject to the same consequences if you breach the law. It demands adherence to procedure.

There is, however, no consensus on what “the rule of law” stands for, even if it is fairly clear what it stands against. An important part of the problem is that “the rule of law” is an “essentially contestable concept,” with both descriptive and prescriptive content over which there is a lack of widespread agreement. Like the concepts of “liberty” or “equality,” the descriptive meaning of “the rule of law” is dependent on the prescriptive meaning one ascribes to it; in the context of complex contemporary polities there likely will be vigorous disagreements concerning the relevant prescriptive standards at stake.

Yet, the deeper we dig into the concept of the rule of law, the more vexing the question becomes: What precisely does it entail, and how it should be operationalized? The rule of law is, as one commentator puts it, “a much celebrated, historic ideal, the precise meaning of which may be less clear today than ever before.” Rule of law is an attractive ideal, but its attractiveness may stem mainly from its imprecision, which allows each of us to project our own sense of the ideal government onto the phrase “rule of law”. Articulating a clearer conception of the rule of law is in one way vague as it is not clear whether the rule of law ought to be largely, if not exclusively, procedural, or substantive or whether it should be primarily concerned with predictability or fairness.

The profounder of modern ‘rule of law’, A.V. Dicey, in his ‘Introduction to the Study of the Law of the Constitution’ (1885) attributed three meanings to the doctrine of rule of law. The first was ‘The Supremacy Of Law’, which implies the absolute power of law, dominance and the supremacy of it. It is opposed to the influence of arbitrary power and wide discretionary power. In Dicey’s words, “wherever there is discretion, there is room for arbitrariness and that in a republic, no less than under a monarchy, discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.

The Second was, Equality Before The Law, which means that the law administered should be the ordinary rule of law applicable to all the people equally irrespective of caste and creed or religion. The understanding is that equity must not be equated with compassion. Equitable principles must emanate from facts which by themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that its endeavor to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law.”

The third one was the Predominance Of Legal Spirit, which loosely means that the Constitution is not the source but the consequence of the rights of the individuals. Here, Dicey emphasized on the role of the courts. Without an authority to protect and enforce the rights conferred upon citizen, their inclusion in a document is of little value. Mere inclusion is not authoritative and its provisions might be abridged, trampled or overlooked.

That the rule of law in the Kenyan society has not achieved the intended results is because the deeply entrenched values of constitutionalism or abiding by the Constitution of Kenya have not taken root in the society. Corruption, terrorism and all our other vices are an antithesis to the rule of law. But, on a lighter note, the perseverant role of the judiciary has, in certain instances, contributed to the development of rule of law while, on other occasions, we have slipped back into government grip by will where hard facts of human nature have been demonstrated by the selfishness and egotism of man, demonstrating the truth of the dictum that power corrupts and absolute power corrupts absolutely.
This has therefore led to the understanding of the rule of law as nothing other than a tool of the powerful to maintain the status quo in the legal system. The general consensus is that the status quo, far from being neutral, serves to protect the powerful at the expense of the disempowered. It is to no wonder that our so called people’s representatives (legislators), focus on the routine like pigs, though not necessarily efficient, on the application of the law but on the long run, they do not stress the necessity of subordination of the government (and the political class) to the rule of law. In their view, the law exists not to limit the state characterized as ‘rule by law’ rather than ‘rule of law’. This narrow conception is proving ruinous to our democracy.

Rule of law as a political weapon

If you are too emotionally attached to your tribe, religion or political leaning to the point that truth and justice become secondary to your considerations, your education is useless, as is your exposure. If you cannot reason beyond petty sentiments, you are a liability to mankind just like any other development strategy that relies on the moral compunction of a politician is a liability doomed to fail.

Evidently, the state of judicial independence in Kenya is seen by many observers to be, at best, anemic, and, at worst, a myth. The gap between political rhetoric and reality remains vast. The notion of judicial independence in the region is merely a notion that pays lip service to the ideal, since there exists a perception that inadequate institutional safeguards generate weak separation of powers and this renders courts vulnerable to political interference. Indeed even our respected judiciary is not immune to intimidation from other arms of the government.

The basic characteristic of the relationship between the rule of law and politics is that the law functions in relation to politics in three basic aspects, namely as a goal, a means, or an obstacle. First, politics can define certain predominantly legal values or institutions as its goal. In this case the political understanding of these values or institutions becomes almost identical to an authentic legal understanding of the same values or institutions. Second, politics can comprehend the law merely as a means for the fulfillment of certain political interests. In this case politics is neutral in its attitude toward the law. Finally, politics can interpret law as an obstacle on the way toward the realization of certain political goals. In this situation either politics prevails over law, or vice versa.

Let us assume that politicians want to be in office and to maximize their autonomy in decision making. On the other side, citizens want to avoid abuses by politicians. Citizens have two instruments to protect them: first, to throw the rulers out of office at election time or, second, to enforce, through institutions, legal limits to the political discretion of incumbents between elections. The first protection is provided by democracy; the second, by the rule of law. Prima facie they complement each other. However, under particular political and institutional conditions, politicians can turn democracy against the rule of law, and vice versa. In my understanding, politicians may focus their strategic instruments towards judicial independence that in turn bends to their needs.

The first argument is that, if the accountability of politicians is limited, the probability that politics becomes judicialized increases. Incentives for the opposition to embark on such a strategy exist, but it often colludes with the government or face reprisals. Institutions that provide insulation to strong executives or promote coalitions hardly removable by elections may restrict the accountability of incumbents. If elections are the only mechanism for enforcing political responsibility, if politicians turn electoral victories into exonerative devices, and if between elections they respond only to legal responsibilities, then parliament becomes irrelevant and political confrontation is transferred to a judicial terrain. If politicians collude, independent judges will take the initiative if they have powerful support from media and interest groups; if politicians do not collude, the strategy will be launched by the opposition. The likelihood of collusion increases if the opposition expects an electoral victory: in that case, it may be interested in preserving the conditions of limited accountability (an insulated executive, the control of public television, and so on).
The second one is as follows: suppose that government and opposition do not collude, and that the latter complies with democratic outcomes because it expects to have some chance of winning the elections in the future. Yet, when that expected future (i.e., the best imaginable conditions for electoral victory) arrives, the opposition loses again. This opposition may conclude that it cannot win under the present rules of competition. This may or may not be due to a lack of accountability of the government. Different circumstances can give a persistent advantage to the incumbent: elections may be strongly ideological and the median voter may be with the government; or the leader of the ruling party can be very popular. The opposition, however, does not turn to dictatorship, and instead introduces new dimensions of competition in which judicial activism becomes instrumental. In Riker’s (1982: 209) terms, “this is the art of politics: to find some alternative that beats the current winner.”

In the third argument, the strategy is carried out by the government. Under particular political and institutional conditions, with independent but not neutral judges, a government may manipulate judicial activism in order to consolidate its power and weaken the opposition. This strategy depends on whether the government finds stronger support within the judiciary than in the electorate and believes that its electoral vulnerability will persist in the future. Hence the value that the government attaches to the probability of winning in the future under the present conditions of competition is lower than the value attributed to the probability of winning after the politicization of the judiciary minus the risk of failure. A government can then try to modify in its favor the balance of power and influence, using the rule of law against political opponents. The target may be the parliamentary opposition, hostile interest groups, or critical media.

The central point deduced from the above , is the political manipulation of judicial independence. To quote Madison again, “if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary” (Federalist Papers 51). But why would membership of the judiciary be restricted to angels? Judicial independence has generally been seen as protection from the government or the legislative majority: if rulers are to be controlled, the checks provided by the rule of law must be immune to their influence. But the protected checkers are unchecked. ‘Quis custodiet ipsos custodes’ is the weak spot in the role attributed to the rule of law in liberal democratic theory. Examining judges in America in 1835, Tocqueville (1969: 206) wrote that “The arbitrary power of democratic magistrates is even greater than that of their counterparts in despotic states… Nowhere has the law left greater scope to arbitrary power than in democratic republics, because there they feel they have nothing to fear from it.”

When the rule of law becomes a political weapon, some of its principles are eventually undermined. Thus, the end justifies the means; cases are selected for political reasons; “judicial populism” leads to violations of the presumption of innocence and legal guarantees; cases last several years and become general inquisitions in search of causes; secret proceedings become public. A network of complicities develops among judges, the media, and politicians. The judicialization of politics does not just end with political conclusions; it starts with political intentions.

Skepticism toward the rule of law and “the assumption of its overriding importance” has been expressed by Raz in the following terms: “One should be wary of disqualifying the legal pursuit of major social goals in the name of the rule of law…. Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty” (Raz 1979: 210, 339). The skepticism expressed here, however, does not stem from the prevalence of economic security against social reforms, but from the disconnection between judicial independence and political impartiality. That is, it stems from the risk that such a formidable weapon can pose to democracy as a regime or to the rules of democratic competition.

Judicial independence and judicial supremacy work together in an attempt to guarantee that the rule of law will not be eroded by the political pressures in existence at any particular point in time. By removing the ultimate interpretation of constitutional provisions from elected officials, the principle of judicial supremacy reduces the likelihood that basic legal protections will fall victim to the passions of the moment. Insulating judges from political influence advances the same objective. Of course, neither the principle of judicial supremacy nor the principle of judicial independence guarantees the rule of law. Nevertheless, they are important underpinnings to the rule of law which we cannot afford to take for granted.

Conclusion

I have always believed in our country Kenya: not in our inherent goodness, I am too black for that, but in our sheer animal will to survive. Crisis after crisis, our country has evolved to meet the moment, even if that meant changing the way we thought the world worked or striving to upend the imbalance of power.
If politicians can undermine the rule of law with democratic instruments, subvert democracy, or alter the conditions of competition with strategies that use the independence of judges, then the combination of democracy and the rule of law will simply be a normative stereotype, not reflective of the real world of politics.
However, the expanding power of judicial review afforded the Kenyan courts under the current democratic dispensation has tremendous implications for both the judiciary and the political system. A virile judiciary is a veritable instrument for bringing sanity into the practice of democracy. But the operational dynamism of the law courts and their ability to serve as veritable checks on the excesses of the political class are a function of its relationship to its patently political peers, the legislature and the executive. It is for this reason that the issue of independence of the judiciary has been a major concern to successive generations of Political Scientists and legal scholars.
The relationship between Political Science and Public Law is intertwined, complex and inseparable. The two disciplines are conjoined fields of study. The courts, particularly when exercising constitutional jurisdictions, are politically significant institutions of governance, democratic or otherwise, and, hence, incapable of being insulated from the vagaries of day-to-day practical politics.
The inextricable link between politics and law is never static but rather fluid, responding at different times to the dominant issues and ideas of the days. Rather than seeking to detach the judiciary from politics or remove politics from the judiciary, which our experiences show has been impossible to achieve, we should rather accept the fact and seek mutual accommodation. That is the only way the anarchy and disorderliness of politics could be “punctuated by justice, fairness and orderliness. (
Author is an Advocate of the High Court of Kenya.