Courts, Parliament ‘Supremacy’ Battles Unwarranted

Posted by on 25th September 2014

Categories:   Uncategorized

By Shitemi Khamadi

Parliament is aggrieved by the Judiciary in how it has exercised its powers in the recent months. On Tuesday 23rd September, when the Senate resumed sittings, Senators led by nominated Senator Beatrice Elachi discussed the Judiciary at great length. They were all united that the Judiciary is overstepping its mandate with its temporary orders that are impeding the work of the house. Two weeks ago, the National Assembly had raised the same concern.

In fact, National Assembly speaker Justin Muturi is on record castigating some court orders as ‘stupid’. These comments have largely been expressed in the 11th Parliament. The reason could be that each institution is finding its space within the constitutional dispensation that is four years old. It will take time for both to underline and live in spirit with this separation of powers principle.

James Madison, the fourth US President (1751-1836) once said “… the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others… Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.”President Madison appreciated humans are not angels, as such, ambition defines man’s desire to exert power and influence, which is likely to go beyond constitutional restrictions.

Article 93 (2) states that parliament shall perform its function in accordance with the constitution. Article 94 (1) adds that the legislative function of parliament is derived from the people. In general, parliament has three distinct roles; legislative, oversight and representation.

On the other hand, Article 159 (1) is explicit that the judicial authority is derived from the people and shall be exercised by courts and tribunals established under the constitution. Article 160 (1) explains that the judicial authority of the Judiciary shall be subject only to the constitution and the law and shall not be subject of control or direction from any person or authority.

From above, it is clear that;

  1. Each institution derives its powers from the people,
  2. Each institution does not take direction other than the constitution,
  3. They all have distinct functions enumerated in the constitution.

Parliament can decide to censure the Judiciary in whatever manner but until the constitution is changed, Judiciary will stamp its authority as the law expects. Litigation has been a common practice under this constitution as a way of resolving disputes. This practice is unlikely to end despite provisions in Article 159 (2) (c) that encourages alternative dispute resolution mechanisms.

Parliamentarians should therefore ensure they always abide by the law so that their decisions are not impeded by temporary court order or injunctions. Separation of powers is a gift the constitution prides the country and all leaders must learn to respect and abide by it. Your thoughts?