Judiciary will always emerge victorious in wars with the Executive

The past week has witnessed an unprecedented outburst from President William Ruto on orders issued by the courts against his administration’ agenda on health, road construction, the housing levy among others.

The President has turned his guns on the judiciary reportedly on grounds that it is stalling his campaign agenda yet on some of the issues, even government agencies have raised objections on projects for violating  the Constitution.

For instance, President Ruto was angered with the Ihithe-Ndunyu Njeru road whose construction would see it pass through Aberdare National Park, thus threatening the ecosystem. This concern was initially raised by the National Environment Management Authority. 

On the ever controversial Housing Levy, the court issued orders halting it by dint of spirited challenges mounted by litigants on the constitutionality of the tax and by the court invoking its  powers bestowed on it by the Constitution.

In the last regime, the country witnessed then-Chief Justice David Maraga capture the attention of many in his defence of the independence of the Judiciary.

His comments brought to the fore the unending mistrust and turf wars between the post-2010 Constitution and the assertive and independent Judiciary and a fairly checked Executive.

Before the enactment of the Constitution, the president of the republic had a strong say and hand to literally determine who became judge.

That changed with the new constitutional order that has donated the power of advertising, interviewing and recommending names of judges to the Judicial Service Commission (JSC). This has inevitably has watered down the Executive’s influence on the Judiciary. It has in turn left the Executive restless, holding just a ceremonial role of organising swearing-in events.

The Executive the world over is never comfortable with a strong Judiciary.

In many jurisdictions, hardly is there a policy or political question which does not sooner or later turn into a judicial one whose adjudication may rattle the other, depending on how the judiciary rules.

In the US, the Supreme and the Federal Courts have taken the lead in deciding many of the most heated issues in politics than the President or Congress.

The Supreme Court has pronounced itself in affirmative action issues, passed judgments that eliminated racial segregation, decided whether women can procure abortion, defined the limits of free speech and free press, ruled on equality in representation and required legislative districts to be equal in population, made determination on life issue on capital offence.  Some years ago, then-Supreme Court Justice Felix Frankfurter stated that the court is the “moulder of policy rather than impersonal vehicle of revealed truth”.

It will be remembered that in all this turf of wars, it is the Judiciary that always emerges victorious.

For instance, President Franklin Roosevelt in response to the Supreme Court that annulled some of his legislations for being unconstitutional,   announced a plan to expand the court from nine to as many as 15 judges in order to appoint six compliant judges  whom he envisioned would deliver favourable rulings regarding New Deal laws the  court had ruled unconstitutional.

Roosevelt developed his plan to reform the court in secrecy, working with his Attorney-General, Homer Cummings, on a way to ensure the court would rule favourably about upcoming cases on Social Security and the National Labor Relations Act.

The war on the court was short-lived. Congress in a bipartisan approach opposed the plan and Roosevelt lost. The Supreme Court emerged victorious. No subsequent president has revisited the war against the independence of the US Supreme Court.

The Israeli Supreme Court struck down a component of Prime Minister Benjamin Netanyahu’s contentious judicial overhaul.

The planned overhaul had sparked months of protests, threatened to trigger a constitutional crisis between the judicial and legislative branches of government and rattled the cohesion of the country’s powerful military.

The court voted to overturn a law that prevented judges from striking down government decisions they deemed unreasonable.

Supreme Court justices struck down the law because of the “severe and unprecedented harm to the core character of the State of Israel as a democratic country”.

At the end of the day, it is Netanyahu who lost.

Back home, we witnessed then-President Uhuru Kenyatta unleash verbal attacks on the Judiciary and blatantly refuse to obey court orders. He, in fact, refused to appoint six judges on the basis of integrity concerns but whom the current President appointed immediately after taking office thus making the alleged concerns unsubstantiated and baseless.

Further, the country witnessed the prosecution of Justice Philomena Mbete  Mwilu – pointedly out of the stance she had taken in overturning the 2017 presidential election.

True to his word, President Kenyatta revisited the matter and had her arraigned.

In the end, the High Court barred her prosecution and the judiciary won.

If one were to analyse the cause of the friction between the Judiciary and the Executive, it would boil down to desire to wield imperial presidential powers and the big man syndrome.

A president who respects  judicial independence indeed must acknowledge that Parliament can and does enact vague laws but ultimately it’s within the province of the Judiciary to render an interpretation on whether the law is constitutional on not in line with  the letter and spirit of the law.

 Since our Constitution is the supreme law, it is clearly provided for therein that the Judiciary has the sole power to decide all cases and controversies and in doing so, decide whether a law as enacted by Parliament is constitutional.

It then behooves on us all, the President, included to respect judicial pronouncements as that is the essence of rule of law and of having a Constitution that establishes a government with limited powers, which simply put, is to allow the Judiciary to have the judicial power to review the constitutionality of laws and government actions. This power in a democracy helps maintain a check on Executive and legislative powers.

Writing about limited government in 1787, Alexander Hamilton stated: “The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare acts contrary to the manifest tenor of the constitution void. Without this, the reservations of particular rights or privileges would amount to nothing.” 

What all of us must appreciate is that judicial decisions can at times annoy and irritate but we have very little choice other than to respect them and if we do not agree with them appeal to a higher court as provided by the Constitution.

In the US, the Supreme Court has  overruled  the president on a number of occasions .As early as in 1866, the court ruled that President Abraham Lincoln could not suspend the writ of habeas corpus in the case of ex-parte Merryman 17 F. Cas. 144 (1861), which was challenging his powers of suspending the writ of habeas corpus in rebellion statutes during the civil war.

The court stated: “The constitution does not give the president the authority to suspend, or authorise the suspension of, the writ of habeas corpus. The writ of habeas corpus may only be suspended by Congress. The constitutional clause allowing such suspension is found in Article I, which details legislative powers. If the authority to suspend the writ of habeas corpus were meant to be given to the executive, it would be found in the second article.”

“The president may not take it upon himself to exercise a power reserved to Congress, even in times of emergency, tumult, or danger.”

By his pronouncement that he would disobey court orders President Ruto is on a trajectory of overthrowing our Constitution and eroding the rule of law. This impeaches on the oath of office he took, which only gave him powers to govern in accordance with the powers bestowed on him by the Constitution. The courts must remain firm and borrow from examples from other jurisdictions.

President Harry Truman was overruled by the Supreme Court when he attempted to seize the country’s steel mills extra constitutionally during the Korean War in the early 1950s. His act was declared illegal by the majority of Supreme Court judges.

The court stated: “There are no provisions of the constitution, or combination of provisions thereof, which gave the president the authority to take possession of property.”

Sometimes, even our Parliament should stand firm against the Executive over-reach on judicial independence. In the US,  it is Congress that came to the aid of the Judiciary and during President Franklin D Roosevelt term. Roosevelt had a super majority and attempted to enlarge the Supreme Court so as to dilute the power of conservative justices. He was defeated by Congress at the peak of his power and popularity. The bipartisan coalition composed of Democrats and Republicans wanted to uphold the independence of the Judiciary.

As president Ruto wages war on the Judiciary, perhaps he should pose and reflect on how he has been a beneficiary of court decisions that many of us disagreed with but chose to respect in furtherance of rule of law and constitutionalism.

When the Supreme Court upheld his election victory on September 5, 2022, the President heaped praises on the judges by stating: “I welcome it with tremendous humility. I salute the judges of the Supreme Court who have performed their duty with utmost fidelity to the Constitution. They listened to all parties, considered all issues, applied the law and demonstrated their learning with impartiality and patriotism. Their professionalism has elevated the stature of the Judiciary, enhanced the petition process in legitimising the election process as the true reflection of the people’s decision and afforded the nation an opportunity to reflect. I thank the Judiciary, and the Supreme Court in particular, for staying strong as the shining beacon of constitutionalism and the rule of law even in the most daunting of circumstances.”

It seems to the President that when the court rules in his favour, it is upholding the Constitution and rule of law. But when the courts issue orders against his administration, they are corrupt and  nay the judges have been influenced by outside forces.

Need we remind the President that the sword of justice cuts both ways and the principles of justice and fairness apply universally, affecting the accuser and accused.

The consequences of legal judgments impact both ways.

To cap, I quote a post dated May 15, 2021 at 12:13 on Twitter (now X) by Mr  Kimani Ichung’wah against the previous regime: “Having intimidated, coerced, threatened and bribed county assemblies, Parliament, governors etc, please STOP threatening the Judiciary. It is the people’s last line of defence against dictatorship, beyond them (Judiciary), it shall be the people’s REVOLT that will be undesirable to you.”

Be sure any attack on the Judiciary geared towards eroding judicial independence will receive significant resistance and opposition by the people. It will ultimately be unsuccessful.

- Senior Counsel Okongo Omogeni is the Senator for Nyamira County and former Law Society of Kenya Chairman.