Judiciary the shimmering light in Kenya’s policy-making darkness

The courts are crammed to the rafters with all manner of high-stakes causes and actions, each bidding for prompt determination. But the court system falls under the Judiciary, an arm of government apparently doomed to invoke the least prepossessing reflexes of its constitutional counterparts.

Recently, the Executive enlisted Parliament in a curtailment of the judiciary’s budgetary allocation so severe as to be altogether improvident. Understandably, Parliament has long chafed at the bit for a go at the courts, wanting the opportunity to assert a dubious primacy and claim immunity from judicial oversight and sanction. On the other hand, the Executive has been on an unremitting rampage of broad-spectrum revisiting.

It has been quite ironic, then, to observe the unequivocal confidence Kenyans have in the Judiciary, simultaneously with a disdain, if not antipathy, for the Legislature and the Executive bordering on revolt.

Incurable violations

Policy measures promulgated by the Executive alone, or in cahoots with an obliging Parliament, as often happens, have been struck down by the courts for incurable procedural and substantive violations of a mandatory constitutional nature.

An online pastime of Kenyans involves assigning to officials of the Executive the disapproving epithets Irregular, Illegal, Unlawful, Null and Void; terms that invariably accompany judicial condemnation.

The credibility differentials between the arms of government plays out thus: decisions and instruments of the other two are tabled before judges for scrutiny more and more frequently, and often fall short of the minimum legitimacy threshold.

Taxation, appointments, legislation, even the school curriculum are a few of the areas where the courts have been invited by a suspicious public to examine executive and parliamentary outputs and set things right. The record so far has been painful and disgraceful.

Sympathisers of the Executive have gone to town with the lamentation that the Judiciary is ‘activist’ and settling scores of a political character instead of interpreting the law.

In the BBI, they even proposed to institute a judicial ombudsman to align judicial thinking with Executive propensities. It did not go well.

For its part, Parliament is Kenya’s most extravagant vanity. It has managed to revise its mandate into three main functions.

The first is to keep a keen lookout for any Executive wish, and rush to fulfil it. Nothing wrong with it, mind; that is the purpose of winning a majority.

The problem with our Parliament is that its expression of loyal alignment is invariably toxic – it never bothers to translate executive whim into clear, rational and legitimate policy that can be coherently articulated through legislation.

Parliament’s second revised function is to allocate itself a stupendous budget, and work extremely hard to exhaust every cent of it.

Worldwide junkets devoted to asinine pursuits as well as transparently pointless and farcical committee sittings are some of the more quotidian extravagances of these honourable characters.

Melodramatic hearings

We also pay them to live in Nairobi, to go back to their constituencies, to sign committee attendance sheets, and to take a seat in the chambers.

The melodrama of their hearings always ends with recommendations for further investigations, administrative action or no evidence of anything at all.

Once upon a time, they travelled to Switzerland to establish whether a locally manufactured beverage contained alcohol!

The third revised mandate of our Parliament is the vigorous twiddling of thumbs, punctuated by feverish passing of blame.

Last week, parliamentarians absolutely denied any involvement in the formulation of the Energy and Petroleum Regulatory Authority’s  fuel price management framework, strongly condemning the Executive for it.

Nevertheless, they still summoned a couple of Cabinet secretaries for ‘grilling’, to signal their concern for the plight of hard-done-by Kenyans.

This level of dysfunction drives individual citizens and civil society organisations to the courts as forums for judicial redress in the first instance, but also, increasingly, as alternative platforms for effective engagement with public policy.

The reasons are obvious.

First is the Executive’s disdain for wananchi, and therefore its allergy to public participation in policy making.

Pathetic grovelling

Parliament’s abdication of its representation, oversight and meaningful legislative role, and pathetic grovelling at the feet of the Executive, is the other reason.

Effective public discourse on the merits of various policy proposals is gradually shifting to the courts. Why is the Judiciary the only arm of government blossoming under the Constitution of Kenya 2010? How would this country be if Parliament woke up one day and lived up to its full constitutional potential?

Notwithstanding its imperfect policy-making credentials, the Judiciary has been the nation’s lux in tenebris: the light shimmering in the darkness.

By it, we read the tariff of the cost of government and governance failures, from monopolies, price controls, repressive regulation, reckless taxation, corruption and impermissible security measures.

Times are bound to get harder in days to come. It would be nice if the Executive and Parliament were more considerate and better behaved. Failing that, we will happily keep a loyal Judiciary and take our chances.

@EricNgeno