This week, the creative tension burst out in the open between the Judiciary and Executive branches of government when Chief Justice David Maraga, on behalf of the Judicial Service Commission, delivered an address to the nation at a press conference in which he complained about what he said was maltreatment of the Judiciary, intimating that it was being taken as a less important arm of government.
The complaint was that the communication to the Judiciary of some decisions made by the Treasury on austerity measures in government appeared to have unfairly targeted it in a way that would have seriously hampered its operations as a service function within the government.
The austerity measures that were communicated were to the effect that the Judiciary should cut back on all budgeted expenses by up to half with the exception of salaries.
The complaint was not just that this action on the part of the Treasury was unlawful, but it also actuated by more than just prudence in managing public funds in the quest for austerity in lean times.
In principle, objections to this directive came from the apprehension not only from the Judicial Service Commission speaking through the Chief Justice but also defenders of the rule of law that the Judiciary needs maximum protection from short-term budgetary pressures felt by the Executive.
SEPARATION OF POWERS
Many people were shocked by this outright challenge to Executive authority by the Judiciary in this manner.
Even those who appreciated the concerns that were being expressed as valid, and I share the view that this was justified, may have thought that the tone and manner of expression of the situation was rather rich, having been expressed so fervently and in such a public manner and regrettably depicted a government engaged in a war with itself.
Exchanges and disagreements between branches of government are thought to be normal and even healthy in a modern functional democracy.
The underlying theory on separation of powers surmises that the branches of government should work in the creative tension that comes from being neither friends nor foes.
This is realised by respectful discourse that takes into account the necessary interdependence alongside the compelling separation.
But exchanges between the Judiciary and the Legislature are not always calm and even polite and not just in Kenya but worldwide.
A common one is the extract of a letter written in 1980 to the then newly-elected prime minister of India by the chief justice.
Justice PN Bhagwati wrote to felicitate Premier Indira Gandhi as follows: “May I offer you my heartiest congratulations in your resounding victory in the elections and your triumphant return as the Prime Minister of India. I am sure that with your firm will and iron determination, uncanny insight … you will be able to steer the ship of the nation safely to its cherished goal.”
When this letter became public, it was seen as an attempt at reaching out to the executive in a manner that lowered the esteem of and confidence of the people in it.
Another judge wrote that if judges start sending bouquets or congratulatory letters to a political leader on his political victory … the people’s confidence in the judiciary will be shaken.
In so doing, the latter judge was asserting that the judiciary was no stepsibling to the other arms of government and was an equal branch of it.
But my favourite public communication of displeasure by judges towards the executive is that of Malaysia’s supreme court judges directed at Prime Minister Mahathir Mohamed in 1988.
When Dr Mohamed tabled a bill in parliament to amend the federal constitution to remove “judicial power of the federation” from the courts and limiting the powers of the judiciary to such powers as parliament granted them, the Lord President of the Judiciary, Tun Salleh Abas, reacted with a statement asserting the autonomy of the judiciary.
This was followed by a meeting in which all the judges of the Supreme Court of Malaysia addressed a letter to the King in these terms: “All of us are disappointed with the various comments and accusations made by the honourable prime minister against the judiciary, not only outside but within the Parliament.”
This letter, speaking truth to power, triggered a struggle between the judiciary and the executive arms of government that led to a series of actions known in legal circles as the Malaysia Constitutional Crisis of 1988.
It ended with the dismissal of Tun Salleh Abas from office of Lord President of the Supreme Court of Malaysia, a regrettable act for which a future government apologised.
Last year, the Registrar of the High Court of Lahore took the language of intra-governmental correspondence to a new level when communicating displeasure at the actions of the Punjab Provincial Government department in Pakistan.
The issues at stake were financial and somewhat similar to those for which the Chief Justice of Kenya raised concerns about earlier this week.
A decision had been made by the finance department to reject proposals for expenditure relating to promotions and payment of allowances in the district judiciary.
The registrar responded in testy language, saying that the rejection by the provincial financial department was nothing but simple bigotry, hatred and antagonism.
The registrar went ahead to add that the rejection was a frivolous attempt at emasculating the independence of the judiciary generally.
Another exchange worthy of mention here was in the United States, where late last year a federal judge passed an order that blocked the Trump administration’s new immigration policies that would limit migrants to seeking asylum at established border checkpoints.
In reaction to this decision, President Donald Trump commented publicly that the judgment was politically motivated, in reference to the fact that the judge had been appointed by President Barack Obama.
In an apparent but firm response to the President, Chief Justice John Roberts said that all Americans should be glad for having an independent judiciary.
Another polite but firm talkback at the executive arm of government by the judiciary was by the United Kingdom’s then-House of Lords in the Spycatcher case.
The case arose following the publication of a book by a former member of the security intelligence services about his work.
The government of then-Prime Minister Margaret Thatcher spent over two years and about three million Sterling pounds going worldwide to try and injunct the publication of the book for revealing state secrets.
The Law Lords, as the judges of the then highest court in England were then known, attacked the government's conduct of the litigation and its claims that it is for the government alone to decide what information must remain confidential.
They made it clear that the case raised issues of principle going far beyond the book.
In fact, one of the judges went as far as stating the government’s actions in that case was a misuse of the law it was bound to respect and protect.
But it is not only judges who make testy communication exchanges with the executive.
Members of the executive arms do attack courts and sometimes even individual judges, particularly when the government falls on the wrong or unenviable side of the decisions of the courts.
Kenyans are too aware of the fulminations against judges by various members of the executive and by parliamentarians too after decisions that have gone against their wishes and desires, not to mention the recorded examples of US President Donald Trump’s attacks on a judge on account of racial heritage following a ruling by the judge to which he took umbrage.
The most unabashed attack of this kind was then-UK Home Secretary David Blunkett’s article published in a newspaper under the title “It’s time for judges to learn their place”, in response to a decision by a judge in 2003 that upheld the right of six asylum seekers to receive assistance from the National Asylum Support.
In conclusion, it is therefore clear that the communication by the Judicial service Commission through the Chief Justice was just the beginning of many more exchanges that would be expected between the arms of government, while all are acting to keep the constitutional structure of the separation of powers at its best.
Kenyans will have to get used to the executive being challenged by the other arms of government, and the latter will have to learn that there is no hierarchy of supremacy among the three arms of government.