Weakest among equals

By TNLM Writer

“The crowning feature of any democracy is the supremacy of the Judiciary over all other branches of government, and the independence of the Judiciary to exercise its sovereign power as envisaged in the Constitution. Further, Separation of Powers is a fundamental doctrine from which the principle of judicial independence is entrenched. The Constitutional provisions on judicial authority including Article 160 of the Constitution 2010 and independence expressly dictate that in the exercise of judicial authority, the Judiciary shall not be subject to the control or direction of any person or authority. This is because the principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies. Balancing these two principles is pertinent for the government of the day to maintain a healthy democracy. Both institutional independence and decisional independence and accountability is required,” – Statement by the International Commission of Jurists, Kenya Chapter, condemning the recent cuts in the Judiciary’s budgetary allocation.

Unfortunately, the Judiciary remains a weak species. In the words of Alexander Hamilton, it neither has influence over the sword nor the purse. In other words, 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. In spite of a periodic emphasis on judicial independence, a holistic reading of the Constitution 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 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 that, in their view, posed the greatest danger to democracy. It may be recalled that, 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.

It is this history that informs the disdain with which the executive and the legislature treat the Judiciary. President Uhuru Kenyatta’s promise to “revisit” may also be understood in this context.

Constant punishment

As the ICJ statement explained, Parliament has traditionally used budget cuts as an instrument of punishing the Judiciary for decisions made by the Courts.

In 2015, members of parliament threatened to undertake budgetary cuts to the Judiciary after the Courts ruling that the Constitutional Development Fund was unconstitutional. In 2017, the Judiciary and a number of Independent Offices and Constitutional Commissions faced budget cuts as the government sought to raise money for the fresh presidential election and enhanced free day secondary education. In particular, the Judiciary lost about 11.1 percent.

In June 2018, medical insurance cover for all Judges and its employees was suspended over insufficiency of funds in a move linked to national government threats to ‘revisit’ judiciary. Then there is the recent capping of the Judiciary’s budget from Sh31.2 billion to Sh17.3 billion through the National Government’s Budgetary Policy Statement, and a further reduction to Sh14.5 Billion by Parliament through the Appropriation Act.

ICJ Kenya noted with great concern, and even critics of the institution concur, that the actions by the other two arms of government to strangle and curtail the operations of the Judiciary through budgetary restrictions amount to a grave violation of the Constitution and attack to the Kenyan democracy and the rule of law.

As the statement rightly pointed out, Parliament and the Executive exhibit constitutional and legislative mandates to regulate and influence national budgets as envisaged in the Public Finance Management Act and National Assembly Standing Orders, which provide the National Treasury with the mandate to prepare annual Budget Policy Statement, the cabinet secretary to submit budget documents to the National Assembly and Parliament to oversee national finances.

Even so, it is important to understand that the Constitution only mandates the Legislature to APPROVE the budgetary estimates presented by the Judiciary. The act of the Treasury Secretary to plow into the estimates of the Judiciary before presentation to the Legislature therefore has no Constitutional basis.

While the legislature and the executive play a pivotal role in national budgetary controls, the two arms must acknowledge that financial security, alongside security of tenure and administrative independence, constitutes a pertinent element in judicial independence. The unsubstantiated, unfounded and malevolent reduction of the judiciary’s budget in light of the delayed implementation of the Judiciary Fund could only be part of a plan to deny the Judiciary financial security.

Financial allocation must be done in a proportional manner. Funds already allocated to the Judiciary and remaining at the end of the financial years ought not to return to the Treasury as is the case currently. Far from removing or interfering with the role of treasury and National Assembly in determining the budget and allocation, this will provide the Judiciary with financial flexibility and security and enable the Judiciary to plan its operation.

Most important, with a view to arriving at a permanent solution, Parliament and the Executive must move with speed to enact and implement legislations, regulations, and rules underpinning the provision of the Judiciary Fund. (