Governments, courts and litigation

Image: Judiciary/X

Two things early this week resonated nicely with each other. First let me share some quotes:

“The Judicial Review process is being abused by campaigners who disagree with policy set by a democratically elected government.”

“Judicial Activism, by people who know nothing about security and the safety of our citizens, is putting our country in great danger.”

“Elements in the police and the prosecution joined forces with the leftist media … to manufacture baseless and absurd cases against me.”

“There is something fundamentally wrong with … litigation, sponsored by hostage-taking vested interests, with the sole aim to delay, derail and sabotage the delivery of public programmes and defeat public interest.”

Not just in Kenya

You might have thought that they were said by our President (though he is unlikely to have spoken of left wing elements, if only because we do not talk ideology in this country).

The first was by the former UK Solicitor General Lucy Frazer when Rishi Sunak was taking office as Prime Minister. The second by President Trump while in office. The third by Prime Minister Netanyahu of Israel – who is being prosecuted.

The fourth is indeed by our President in his New Year’s Eve address, where his main target was people who go to court (and why I chose similar targeted comments from other countries).

Of course, on Tuesday this week President Ruto moved on from attacking litigators to directly attacking the judiciary, particularly alleging that corruption plays a significant role in decisions that hold up government policies.

Again one would find direct attacks on the judiciary in other countries with strained relations between government and courts, though not so often alleging corruption. In the UK, at least, such behaviour is not limited to one political party. And. again not in this country alone, judges are often threatened. Just as President Ruto reportedly said “We will deal with” alleged corrupt judicial officers, so then British Prime Minister Bori Johnson threatened “consequences” for the Supreme Court after it decided against him on his attempt to prevent Parliament being involved in finalising the UK process of leaving the European Union.

The other event this week (other than President Ruto’s speeches) was the  Israeli Supreme Court’s rejection, as least in part, of Prime Minister Netanyahu’s effort (backed by enough legislators) to curb the courts’ ability to hold government actions unreasonable, even highly unreasonable, and illegal

A Google translation of the Court’s own summary includes that the decision was: “8 out of 15 judges [held] that Amendment No. 3 to the Basic Law…, which comprehensively excluded the judicial review of the reasonableness of the decisions of the government, the prime minister and the ministers, should be declared null and void. This is due to the severe and unprecedented damage to the nuclear characteristics of the State of Israel as a democratic state.” The specific case is of limited relevance to us – though it is interesting how both sides in such an argument reply on democracy!

What is interesting, however, is the similarity of all government responses to what they view as judicial obstacles to their powers or their programmes.

Why should the President (and others) be restrained in their comments on the judiciary?

Sometimes people say, “But the President has freedom of speech like the rest of us”. True, but just because we have a right does not mean it is always wise – politically, morally, or for one’s own dignity – to exercise it. Members of the judiciary have the same right, but you do not find them rushing to complain about the way they are attacked. In fact defences are most likely to come from the LSK – which is not ideal because it is easy to imagine that the legal profession wants to keep “in” with the judges.

Unfortunately our Attorneys General do not seem to think that standing up for judiciary is part of their role to “promote, protect and uphold the rule of law.”

A few years ago an informal committee of interested members of both houses of the British parliament examined the issue in that country. It commented that government attacks severely undermined judges’ morale. We need excellent lawyers to become judges. If they can earn more and not suffer these attacks in other areas of legal activity, why should they chose to become judges?

That committee even suggested that there was some suspicion that these official attacks may have been a factor in an attack on a lawyer’s office

The committee, while not criticising particular decisions as wrong, seemed feel felt the judiciary had in fact allowed political attacks to influence their decisions, and that significantly fewer decision had gone against government thereafter. If this does happen, no doubt attacking ministers, and Presidents, would feel happy. But what is really happening? It is of course just as bad for courts to decide cases in favour of government for fear of the consequences, as to decide against for reasons for political or personal corruption. And it is almost as bad for the public to believe they are doing either.

The public will lose faith in the judiciary – and faith is crucial, and is hard to restore once lost. And the rule of law is undermined – and indeed the whole constitution. To attack the judges is to attack Kenyans.

How should the executive behave?

It is not that courts cannot be wrong, nor individual judges corrupt or politically motivated. And it is true that projects may be held up. Even that sometimes injunctions holding up projects may be misguided.

Does motive matter? Public interest litigation procedures under the Constitution should not be used for personal interests. But over the centuries important law is often made through cases brought for personal reasons, by unattractive people.

But not all questionable decisions are corrupt. There can often be room for disagreement. (Since the  Israeli Supreme Court heard that recent case, two judges have retired, and some believe that the new court might have decided differently.)

We see a general tendency in this country for politicians, who run into any trouble with the law to complain that this is their “political enemies”. A dignified denial of wrongdoing and meeting the charges properly is by far the better approach. They don’t seem to realise that to blame their “enemies” suggests they do not have any real answer to the allegations.

Same with the executive. The main aim should be to be “judge-proof”. Follow the right procedures, including public participation. Plan properly so you are not caught unawares. This includes having contingency plans (for example not allowing NHIF to cease functioning before a new system is in place). Learn from past court decisions!

If legal challenges occur, the executive is surely able to draw on strong legal talent to deal with the issues, as lawyers, not as political rhetoricians. If not why not?

Our Constitution ensures that any complex constitutional case is not decided by a single judge even at the first level which may have as many as five judges.

If a court case goes against you, there are ways to challenge it – through the appeal system. Some constitutional cases have involved as many as nineteen judges at various levels (like the BBI case).

Unlike politicians, judges have to give detailed reasons for their decisions and anyone can read those decisions. Yet politicians do not refer to the judges’ reasoning (do they even read it?).

Politicians do not seem to attribute to bias, or corruption, decisions they favour. Then they are all for judicial independence.

And to wave some imaginary sword and say “We – meaning government – will deal with judges, corrupt or otherwise,” is to misunderstand (deliberately?) and misuse the Constitution. Corruption is a matter for an independent commission and an independent office (of prosecutions). Maybe they do not always do a great job (no worse than the executive dealing with corruption in its own ranks). And discipline of judges is the role of another commission, and removal involves the President only in a formal way.

The author writes in her personal capacity

This article was first published by the Star Newspaper


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