All State arms must respect Constitution


The Supreme Court of Kenya. FILE PHOTO | NMG

On May 15, the Supreme Court of Kenya, in a majority decision, rendered an advisory opinion in a dispute that had gripped the country’s governance landscape for over three months in 2019. The dispute revolved around the amount of money that would be allocated to county governments as part of the budget-making process, with both the Commission on Revenue Allocation and the Senate suggesting Sh335.67 billion while the Treasury and the National Assembly proposed Sh310 billion before increasing it to Sh316.5 billion. Despite efforts at mediation, the standoff persisted leading to paralysis of operations at the county level hence the court action.

The dispute was resolved before the Supreme Court’s decision. However, because it has been a recurring contestation, it is important that the decision rendered over a week ago came out to try and clarify relationships amongst the key players in the budget-making process within the changed landscape brought about by the 2010 constitution and its various safeguards. The decision reaffirms a position that the court had taken in 2013 and adds a few more clarifications.

The decision demonstrates that, when necessary, the Supreme Court can rise to the occasion and provide needed clarity in the mechanisms of governance in the country. A constitution, with all good effort is never clear nor comprehensive. Interpretation by courts help provide guidance to its meaning, pathways to its application and objectivity to the resolutions of any disagreements that arise from these processes. The judgement is evidence, that despite its several failures, the rationale for the creation of the Supreme Court by the drafters of the 2010 Constitution was sound.

Like all rules and institutions, their efficacy is based on the interplay amongst various players in the equation and the manner in which they all approach their engagements. The words of Chief Justice David Maraga in the concurring judgment in that case may even be more important in this regard than the final opinion by the court. The CJ decried the disobedience of the law, especially court orders asserting that the law is not just about what is contained in the Constitution or those passed by Parliament but also includes court decisions.

A democratic society is one where there are clear rules that govern the conduct of citizens, their relationships with other fellow citizens and the powers and limits of organs created to govern the society. None of these has a carte blanche to do as they please. Their conduct is constrained by rules agreed upon by members of the society. Unless every person and institution adhere to this basic rule of modern democratic governance, anarchy soon reigns.

The ideals of checks and balances is a fundamental component of democracy. It ensures that the arms of Government to which power has been donated by citizens, conduct the tasks required of them within limits and in due regard to the laws and people that have given them those responsibilities. When they exceed their limits, the other arms exist to act as a check on their excesses. The operation of this principle, though presumes not simply good manners, but joint commitment to the ideal by all actors.

As the CJ warned in the Division of Revenue case above, the culture where the government and its organs operate as if the law applies to everybody else and not themselves runs contrary to this ideal and in the long run makes the ideal an impossibility to actualise. In its place we sow seeds of disobedience of the law-making Governing not just expensive but unsustainable. It is a recipe for disorder and violence.

Although the most criticism in the judgment was targeted at the Legislature, it is important that the Executive and Judiciary also introspect on their role and ensure that in discharging their mandate they promote the rule of law, respect the doctrine of separation of powers and encourage a culture of decency, good faith and fidelity to the Constitution. What may look only as political opportunism sows a dangerous seed that may come to bite the same people promoting it. The examples of such incidences in our country are legion.

The political class must especially recognise that political brinkmanship and disregard of the law will, at some point negatively affect them. Laws are put in place not out of luxury but to avoid a situation where might equals right. Once that happens, the two arms of government that will have the greatest challenges are those of the legislature and the judiciary.

For the Judiciary none of their judgments will make sense except those that the mighty prefer. And they will only need the judgments to support their predetermined actions.