March 8, 2014 Mad Hatter

SUPREMACY BATTLE, KENYA CAN LEARN AND MOVE WELL AHEAD

Of course, the Executive has reasserted itself as the ultimate. And it has given this claim legitimacy by drawing from tradition, but even so, controlling the legislature using extra-legal means. Tradition sets the presidency as the first authority, and this perception even if contradicted by law is the truth. While, whereas the Parliament should have real capacity to for instance to check the executive, it in reality is an agent of the presidency de facto. The Majority faction in the parliament is effectively whipped and has routinely accorded itself to the wishes of the presidency. If you were to suggest that Duale can check the President, well, that sounds laughable.

Since its promulgation, the Kenyan Constitution has managed to occasion several changes. A ballooning of the public wage bill, uncertainty of our legal regime and now the confusing supremacy wars that we are seeing as part of the disadvantages, on the positive, it has ushered in an era of pronounced civic knowledge on rights, restructured our national values, albeit on paper and facilitated creation of a second political structure at the county level.

The latter part of my sentence is deliberate; I do not believe the constitution has facilitated devolution. Not of resources, and not of political power. If you devolve resources, but retain the disbursement and monitoring rights (which is the real power) at the central level, ideally that makes governors and the county assemblies, agents of the national government. On the other side, no political power that was for instance reflected at the national level, say in the presidency, now vests at the county level, if there is, it is apparent, not real.

My interest though is not to question devolution; it’s to contribute to the dialogue on who is supreme, if there is, between the Executive, the Legislature & the parliament.

The Kenyan State, unlike other countries now has four organs of government, the Executive, the Legislature, The Judiciary and Independent Constitutional offices. As all states, the four are inter-linked in a manner meant to facilitate first, checks, and secondly balances. From here, we can make a logical conclusion, that viewed holistically, and then all organs are equal. For you can only check and even so, balance off the excesses of the other, if you equal them?

But logic as a concept often is in conflict with reality. And a political entity like Kenya, who beyond the law feels the impact of personality charisma and the effects of how institutions assert themselves, that balance is not a given.

My own view, a look at the Constitution, suggests that the Parliament may be the only body that can impose its will. In fact, the only form of imperialism capable of being exercised in Kenya is parliamentary. The Constitution vests onto the parliament powers to check and approve holders of office, distribution of resources and what have you(s).

In comparison, most powers vested in the presidency in the old constitution now rest either fully with the parliament or are spread between the parliament and the Executive.

Of course, the Executive has reasserted itself as the ultimate. And it has given this claim legitimacy by drawing from tradition, but even so, controlling the legislature using extra-legal means. Tradition sets the presidency as the first authority, and this perception even if contradicted by law is the truth. While, whereas the Parliament should have real capacity to for instance to check the executive, it in reality is an agent of the presidency de facto. The Majority faction in the parliament is effectively whipped and has routinely accorded itself to the wishes of the presidency. If you were to suggest that Duale can check the President, well, that sounds laughable.

On the other side, the Judiciary occupies what can be termed as the most pure status of the four organs. It’s the custodian of legality, and has a mandate to interrogate any action; by any authority as long that interrogation is founded on need to ensure its within the constitution.

To be crude, let me say, the Judiciary is traditionally powerful than the legislature. If the primary role of the legislature is to enact legislation, and the role of the judiciary is to interpret the law, who is powerful by fact. If I am to recall my social foundation class, with interpretation, is there law?

It would appear that what comes out of the parliament are expressions of intent, they only become the law when questioned through litigation and given an interpretation. Well, this could be viewed as abstractly academic, but that in my opinion appears as the reality.

Given its role, the judiciary had a chance to assert itself as the ultimate, which in my view would be desirable. Of the four arms, only judicial decisions are the ones reached at in a deliberative environment that can inspire the confidence of the whole society.

Indeed, the principal of constitutional supremacy has seen the transfer of powers from representative institutions to the judiciary. This primarily founded on an understanding that politics will always be partisan, and so political decisions rarely reflect the holistic view of the society and that if we continuously use politics as a determinant of what is to occur, we end up realizing that as we progressed, we left bits of societies behind.

The Judiciary has then had to move from undertaking its traditional role of solving conflicts, to adopt a new stature of the guard of a state’s aspirations.

This is what in my view the drafters of the Kenya Constitution envisioned, that questions of public policy, political conflicts and the confusion that comes with fusing morality into our legal notions should be adjudicated upon by the courts.
But the audacity the parliament today has to attack the judiciary was incubated by the judiciary’s inability to assert itself.

At the start of the new constitutional dispensation, the courts were invited to interpret the law, they did so through the politician’s eyes and set themselves on a path that suggested that euphoria and political considerations may outweigh the strictness of the law.
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Judiciary

I am glad as a citizen, that this path has haunted the judiciary quite soon. I hope it realized how untrustworthy politics and ‘public interest’ can get and choose to relentlessly assert itself from now henceforth.

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