Judiciary must change tact to save the country from downfall

Guest blog post

By Onguso Ochengo

Editor’s note: This piece was penned down in 2015.

A great man Charles Louis De Secondant, Baron Montesquieu espoused the idea of separation of powers. Though he heavily borrowed from Locke, the modern usage of the concept that has shaped democratic constitutions, has been inspired by his version. The basic argument is that governmental powers should not be vested in one body, individual or agency. Judicial, legislative and executive powers, if exercised by one individual could lead to despotism. The idea was noble. In 1748, Lord Acton had observed that power tends to corrupt and absolute power corrupts absolutely. However, all these powers are not supposed to be in competition on which arm is more powerful or which arm can frustrate the other the most. Legislative, judicial and executive powers are all governmental powers whose main aim, I suppose, should be the well-being of the people.

It is this well-being that even the laws of a given country should strive to achieve. Marcus Tullius Cicero noted ‘salus populi suprema lex’-the well-being of the people is the highest law. I agree based on the principle that it is the laws that are supposed to serve the people and humanity and not the people and humanity that are to serve the law with the exception that such service to the law would lead to well-being. Based on the aforementioned logic, the judiciary is mandated to regulate the constitutionality of legislative acts e.g. legislation. Constitutionality is nothing but the will of the people. It will be a misnomer to think that the will can be anything but the well-being of the people for rational beings will that which promotes their well-being. Therefore, even interpretation of the law must be limited to promoting the well-being of society. The executive too can only implement such laws through means that do not put the well-being of society at risk. The main argument here is that all the three arms should be connected to the principle of ‘well-being of society’ which has three implications: the legislature legislates nothing except that which marries with well-being, the judiciary interprets nothing except that which promotes the well-being and the executive implements nothing except that which promotes the well-being. Based on this argument, one cannot fail to see the flaw within our Kenyan set up. The judiciary has become a lone-ranger. It operates in the moon on matters affecting the earth of Kenyans. Clouds of utopia have taken precedence over stubborn realities. However much this might have been done in good faith, the dire consequences necessitate a reconsideration of how the judiciary operates.

A keen look at the US judiciary through its Supreme Court reveals a flaw within our system. In constructing the American Constitution, the founding furthers borrowed the concept of separation of powers from the works of Montesquieu. However, during periods of national crisis, the judiciary in the USA has always behaved-either through commission or omission-enabling the executive (the President in whom final responsibility of ensuring well-being of the society lies) to act to end such crisis. Before further discussion, it is important to note that no genius law-maker can foresee all cases so that they may be covered under law. Reality sometimes presents penumbra cases whose resolution by law as it is will be likened to fitting a square into a circle. Back to USA, during the civil war, one of the most celebrated US president, Abraham Lincoln, suspended a constitutional right-the right to the writ of habeas corpus. Only AFTER the civil War did the Supreme Court determine that it was unconstitutional. In the wake of World War I the Congress passed the Espionage Act which limited freedom of expression which outlawed any disloyal or abusive language that could cause contempt or disrepute to government. A socialist Presidential candidate Eugene Debs was imprisoned for speaking against the war. His conviction was upheld by the Supreme Court. The US Constitution provided for the freedom of expression! After Japanese bombing Pearl Harbor in 1941, Franklin Roosevelt ordered for the removal and internment of Japanese Americans living on the West Coast. The US Supreme Court upheld this overt violation of US Constitution then based on well-being of society.

The US congress later voted to make apologies and reparations for the surviving victims-46years later-long after the immediate danger was dealt with. Many other examples exist including during the Cold War. The trend has been that only when the perceived crisis is over are the courts and elites keen in reasserting their fundamental liberties. The moral of these examples is not to give the judiciary license to fragrantly violate the constitution but to ensure that consideration of the well-being of the society comes first in its interpretation. The recent examples of the provisions of The Patriot Act which introduced longer detentions for terrorist suspects, infringement of the right to privacy among other so-called limitations on liberties point to the role of the judiciary ensuring the well-being of society.
It is therefore, a humble observation that the continued interference of the judiciary with executive functions like recruitment of police without considering the consequences, suspension of security laws without immediate advice on how to deal with terrorism, stalling of government (executive arm) projects just because a case is filed must be reviewed. The executive cannot fight terrorism without the help and co-operation of the judiciary and legislature. Competition cannot help. Judicial activism cannot help. Ego-soothing cannot help. The tussle among the three arms, based on myopic patronage by some arms rather than cooperation based on well-being will only lead to a torn country that may never experience peace or justice.

Ochengo is a lawyer and political analyst