Kenya: "Courts cannot interfere with internal process of Parliament"

AGORA moderator's picture

The true test of a democracy is the extent to which Parliament can exercise oversight of the Government by holding it answerable to the people for its policies and actions. As one of the three core democratic roles of Parliament, oversight requires the Executive in a democracy to play by the rules in executing its mandate in a transparent and accountable manner. It is pivotal for the checks and balances necessary in our system of governance. The main tool for parliamentarians in performance of this function is the power to summon anyone before its committees to provide information or documents. 

It is therefore quite alarming for the MPs when our courts issued orders that we cannot summon the governors to answer queries in the reports by the Controller of Budget that were submitted to the Senate. Equally baffling is the orders by the courts to stop the impeachment of the Embu governor. Both actions reveal growing judicial activism, which, if unchecked, will plunge this country into a constitutional crisis. Judges are not politicians and ought not to play politics with the law. They have a mandate to define principle but must not venture into making policies, which is the mandate of Parliament.

Though their action is not new, it is unexpected in the reformed Judiciary. In November 2008, Justice Nyamu issued orders to restrain Parliament from passing a bill to disband the defunct ECK, which was rendered inconsequential by the House Speaker, who ruled it as unconstitutional. In Zimbabwe, last year, the Local Government Minister obtained court orders to block Parliament from debating a private member’s Motion. Is that where our reformed Judiciary wants to lead this nation? In developed democracies, particularly Commonwealth countries, the power to issue injunctions and make declarations in relation to deliberative stages of proceedings of Parliament will virtually be refused by courts, out of the necessity to permit Parliament to conclude its deliberations and to uphold separation of powers.

Courts can determine the constitutionality of a legislation after it is assented to, or determine whether the Constitution was followed in the process of its deliberation. It does not interfere with the internal processes of Parliament. On the contrary, the courts may extend the scope of parliamentary privilege beyond what is provided for in the Standing Orders, by say, declining to allow use of evidence submitted before a parliamentary committee. In interpreting the Constitution, the court must promote good governance and not court public appeal. In the Embu impeachment and the Senate summons cases, the court’s decisions do not promote the values and principles that underpin public financial management provided for in law.

Governors are the leaders of their county administrations in their capacity as CEO. Article 2 of President Nixon impeachment case established the theory of accountability by leaders when it asserted that a president was accountable for the acts of his subordinates. The questions then raised in the US Senate were - what did the President know? And when did he know it? It was the answers to these questions that established the innocence or guilt for misdeeds of his administration. Last month, the New Jersey Governor Chris Christie accepted culpability for his administration’s misdeeds in the traffic jam crisis that hit the George Washington Bridge September last year, after months of dodging responsibility.

Our governors cannot purport to be accountable when they do not accept responsibility for the acts of their administration. As the CEO, it would be foolhardy to imagine that they can give directions and control to their managers and escape culpability. And our Constitution does not contemplate a place for free riders in the leadership of the country however hard the courts try to placate them.


The writer is Mandera County Senator and a political economist

SOURCE: Standard Media, February 24th 2014: