Lawmakers and the drive to defy ‘stupid’ orders

A section of the media has reported a recent meeting between the Chief Justice and Speakers of the two houses of Parliament – the Senate and the National Assembly– apparently convened to clear the air about the prevailing disharmony that has seen several constitutional organs lock horns against one another.

It is reported that the two Speakers informed the Chief Justice that Parliament will not obey “stupid” orders if these are made by the courts.

The implication, therefore, is that Parliament will only obey the orders it likes and those it considers “stupid” will be disregarded.

Already, Parliament has disregarded orders issued by the High Court in Embu which sought to block the intended debate regarding the governor of that county, Martin Nyaga Wambora, whom the Senate eventually impeached, before the High Court reversed the impeachment order.

It is settled in law and practice that in a constitutional democracy like Kenya, Parliament and the Judiciary are both supreme when exercising the authority conferred on them by the Constitution. Therefore, if each organ stays in its domain, it will avoid conflict, such as have arisen recently in the country.

From time to time, as has been seen in the Wambora saga, Parliament and the courts get in each other’s way, leading to disagreements as to which of the two is right, and how differences are to be resolved.

The Zambian professor, Muna Ndolo, who teaches at Cornell Law School, has written on this subject, suggesting that “Parliament, acting on its own initiative, cannot pronounce on whether an order of the court is regular or irregular.”

In his view, “if the Speaker or Parliament felt that a court order was irregularly issued because parliamentary business was immune from court processes, the proper thing for the Speaker or Parliament to do would be to ask the Attorney-General to apply to the same court or a higher court to vacate the said order as being irregularly issued.”

The Commission on the Implementation of the Constitution took this same position with regard to the Wambora situation but its view has been disregarded by the warring parties.

TEMPORARY ORDERS

There is, of course, the question as to whether the order by the High Court in Embu should have been issued in the first place, even assuming that the court had jurisdiction.

Ordinarily, courts of law are required to hear all the parties to a dispute before they pass judgment. However, a court is sometimes approached to issue temporary orders, without hearing all the sides, because of the need to arrest an imminent development, the occurrence of which would irretrievably alter the nature of the dispute.

For example, if in the middle of a dispute over the custody of their children, an estranged spouse learns that the partner is about to leave the country with the children, the spouse might approach the court for orders preventing the children from leaving the country, before the custody dispute is resolved.

When requested to issue orders of this nature, the settled legal precedent, dating back 40 years, is that a court should ascertain that the person seeking such orders has a serious case, that is to say, that the case is not frivolous. Secondly, that if the injunction is not granted, irreparable harm will occur to the person.

If the harm that can occur is capable of financial compensation, for example, it is unlikely to be regarded as irreparable and an injunction may be refused.

If the court is in doubt about the answers to these questions, it should decide on a balance of convenience, that is to say, it should decide against the party that will suffer the least inconvenience in case the facts alleged were true.

It is easy to see the frustrations of the Senate if you apply these considerations to the decision made by the High Court on the Wambora case.

What harm would Wambora have suffered if the court had allowed the impeachment process to go on while the parties argued the case about his grievances in court?

Secondly, given the fact that the Embu County Assembly was acting within its powers when carrying out the debate on impeachment, how did Wambora manage to pass the first hurdle in court, the one that required that he demonstrates that he had a serious, rather than a frivolous, case?

Thirdly if, as it finally did, the High Court had the power to return Wambora to office, it means that irreparable harm was not a possibility. Why would the court not have required him to serve his adversaries and hold a hearing before making a decision?

On a day-to-day basis, less powerful parties than the Senate, perhaps private citizens, may have to put up with incorrect and highly inconveniencing injunctions that unreasonably stop their lives.

To such parties, the luxury of obeying only the orders they approve of does not arise. Because Parliament is powerful, it now seeks to create a new doctrine that excludes obedience of what it regards as “stupid” orders. If allowed, this would imperil the constitutional foundations of the country.

On their part, given the potential that courts have of putting public institutions and private citizens to great inconvenience, and even expense, judges should be careful when asked to exercise the power to issue temporary injunctions.

When such orders are issued against the powerful without merit, they invite comments like those from the two Speakers. When issued against the weak, they constitute an injustice.

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