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Institutions
treading on each other's toes
DAILY NATION, Nairobi
Story by PAUL MUITE
Publication Date: 11/01/2005
In the recent past, we have
witnessed cases where the very basis of the doctrine of separation
of powers has been threatened by each of the three institutions of
government violating the law and encroaching onto each other's
constitutional spheres.
Such violation was witnessed when
the President refused to appoint Dr Julius Rotich as KACC deputy
director in charge of finance.
In this case, the President
violated the Constitution and the law in that his role in such
appointment is ceremonial; he has no constitutional or legal power
to refuse to appoint one who Parliament has confirmed.
Such conduct undermines the
constitutional authority and independence of the institution of
Parliament. Happily, if the proposed new Constitution is adopted
in the referendum, such violation of the law will result in
impeachment proceedings.
Another blatant example of
violation of the law by an institution of government, has
manifested itself through the interference of legislator David
Mwenje's Parliamentary Committee on Defence with on-going criminal
proceedings involving a haul of cocaine.
The chairman has even been quoted
as saying with regard to a court exhibit: "How do we know
whether the contents are cocaine or unga"?
This is a clear example of a
parliamentary committee encroaching on the constitutional autonomy
and independence of the Judiciary.
Again when the Judiciary issues an
injunction against Parliament not to debate the Ndilinge Report, a
report of a Select Committee appointed by Parliament, the
Judiciary is encroaching on the constitutional autonomy and
independence of the Institution of Parliament
Fidelity to law – submission by
individuals and institutions to the rule of law – underpins the
orderly governance of a democratic state.
For this ideal to be achieved, the
Legislature, the Judiciary and the Executive must first internally
be bound by the law, and secondly, respect the constitutional
limits of their respective roles.
The Judiciary itself and the
individual judges in their adjudicative function must scrupulously
observe the law. A judge can genuinely err, which is why we have
appellate courts. But what a judge must never do is to make orders
or give judgments which cannot be supported by any theory of law.
Rulings and judgments, even where
they advance new frontiers of jurisprudence on a point, must
consider and respect stare decisis (former decisions
including those of higher courts) and settled law on the point
under consideration.
The principle that a court order,
however wrong, must be obeyed unless it is set aside is not a
licence for judicial anarchy. This principle is premised on the
presupposition that the judges themselves submit to the law and
that such erroneous orders are genuine and the exception rather
than the rule.
Where the Judiciary is
institutionally weak, it invites disobedience to its own orders
where it fails to base such orders on sound law. Inferences of
political or other considerations become inevitable. Erosion of
respect for the Judiciary and the rule of law follows.
As every lawyer is aware, ex
parte orders are in law supposed to be given only in very
exceptional circumstances, and where such orders are applied for
in the eleventh hour, the court has to be satisfied on the cause
for the delay in applying.
In the recent Ogiek community case
regarding title deeds, the matter was in the public domain for
years, and judging by the large number of members of that
community who turned up to receive their title deeds, the question
arises as to why a minority who, for whatever reasons, did not
want title deeds given out should stop the majority receiving
their title deeds.
Were the interests of this majority
considered when issuing the ex parte orders? Was it not
also a legitimate consideration that the practical effect of the ex
parte orders was to embarrass the President as the Chief
Executive when it had been announced that he would be giving out
the title deeds? Why was the State itself not given the
opportunity to be heard before the orders were issued?
These are troubling questions, and
it is necessary for us to go back to the rule of law, especially
at this historic moment of re-writing our Constitution.
Mr Muite is the MP for Kabete
and chairman, Parliamentary Committee on Administration of Justice
and Legal Affairs
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