The Judiciary has done a good job of upholding our constitutional ideals

The accusation by President Kenyatta and some members of the Senate and the National Assembly that the Judiciary is assisting impunity, corruption, theft, and irresponsibility is both wrong and unfortunate.

The truth is that Kenya’s Judiciary has, since the new Constitution was effected in 2010, observed some of the highest standards by any democracy. The judges have served as true guardians of the Constitution. Were they to heed criticism, they would abandon their oath of office to administer justice without fear or favour.

The criticism levelled at the Judiciary is based on several misunderstandings. First, the Constitution, which is an expression of the people’s will, is the supreme law. All the organs established by the Constitution, be they the Presidency, the Senate, or the National Assembly, must accept this fact.

Kenyans have allocated each of these organs powers and the Judiciary is mandated to declare the boundaries whenever disputes arise.

The people of Kenya have done away with the heresy of the supremacy of Parliament, which caused untold misery between 1963 and 1988, when amendments to the Constitution turned the country into an authoritarian state. Both the Senate and the National Assembly appear to be living under the illusion that Parliament is supreme.

The National Assembly is unhappy because the Judiciary has asserted the supremacy of the Constitution by ruling that only the Salaries and Remuneration Commission has the power to determine the pay of public officers, including members of Parliament.

No doubt the President was reacting to the ruling of the High Court to stay the special Gazette notice that appointed persons to investigate the conduct of six members of the in the Judicial Service Commission (JSC).

In a country governed by the rule of law, there is and there must be a court that declares the law.

TRANSFORMATIVE DOCUMENT

In a democracy, it is generally accepted that there will always be differences of opinion. Citizens may not like the particular outcome, but the choice of the institution to take the decision has been made. Those criticising the Judiciary are not playing by the rules of democracy.

As the Supreme Court has explained, the Constitution is a transformative document, the country’s formula for reconstruction. Kenyans made it so to fundamentally shake up the status quo.

Those criticising the Judiciary are the beneficiaries of the society that Kenyans resolved to reconstruct. The reconstruction involves a little pain, but what cure is possible without pain?

The tensions between the organs of the Constitution are to be expected if the status quo is to change. Governors, senators, members of the National Assembly, and the President, who shares his power with the National Assembly, must come to terms with the new constitutional order.

Third, tension between the Judiciary on one hand and the Executive or/and the Legislature on the other is normal, according to democratic practice the world over. Indeed, no democracy has matured without managing such tensions. For instance, in the 1930s, there was great tension between President Franklin Roosevelt and the United States Supreme Court, which the President accused of not supporting the New Deal legislation designed to address the Great Depression.

ALL MUST OBEY

Between 1967 and 1980, there was a great controversy between the Supreme Court of India, the Legislature, and the Executive, which held different views regarding supremacy. The Judiciary took the correct view that it was the Constitution, not the Legislature, that was supreme.

Fourth, in a democracy, all individuals and institutions must obey court orders.

Courts have said that the simple and only view is that an order of the court must be obeyed and that those who wish to get rid of it must do so through the Court of Appeal or applying for it to be set aside.

The Constitution and all the good laws in a democracy will not serve any purpose if court orders are disobeyed.

In all democracies, one thing is clear — that whoever disobeys a court order achieves absolutely nothing. In a country where court orders are not obeyed, chaos, not order, reigns.

For this nation to be as great as desired by Kenyans, this truism must be allowed to stand.

Well done, Kenya’s Judiciary!

Dr Kuria is a Senior Counsel.