Which way in the Executive-Judiciary tiff?: An analysis of the call for consultation and the imperative of cooperation 

  • 20 Jan 2024
  • 3 Mins Read
  • 〜 by Brian Otieno

In the recent past, the President has openly retorted that detractors have resorted to using court processes and procedures to derail his agenda. With much agitation, President Ruto went ahead to assert that he was ready and willing to defy court directions and remain fixated towards achieving his plan and agenda for the country.

These remarks have drawn ire and fury in both the general public and legal circles, with the Chief Justice, the Judicial Service Commission and the Law Society of Kenya terming the President’s remarks as a precipice for chaos and anarchy. In the midst of the spat, the Chief Justice, Hon. Martha Koome, extended an olive branch for consultation between the two arms of government, a position that has also elicited diverse reactions from Kenyans. But what does the law say? Is consultation feasible, more so in this context? What would that do to the confidence of the public in the judicial system?

Pending Cases

There are still several cases that arguably touch on issues key to the President. Some of the high-profile cases include:

(a)   The Social Health Insurance Act, 2023: While the Court of Appeal has lifted orders of the High Court restraining the implementation of The Social Health Insurance (SHIF) Act, 2023, the Primary Health Care Act, 2023 and the Digital Health Act, 2023, some provisions of the SHIF Act will remain suspended, and they will still be subjected to hearing and determination.

(b)   The case challenging the constitutionality of the Chief Administrative Secretaries (CASs) is still pending before the High Court.

(c)   The case challenging the constitutionality of some provisions of the Finance Act, 2023, is still pending before the Court of Appeal.

Consultation or Cooperation?

Fresh from the calls for consultation, the Court of Appeal has paved the way for the implementation of the SHIF rates capped at 2.75% of an individual’s earnings, leading to murmurs from some quarters that consultation is probably an antidote to the tiff.

From the very onset, it is essential to highlight that the constitutional doctrine of separation of powers underpins Kenya’s structure of governance. Consequently, the Constitution creates three arms of government that are separate, distinct, and independent from each other. The rationale of this doctrine was succinctly captured by James Madisson, an American philosopher, in the Federalist when he stated that “without the power to withstand encroachments by another branch, a department might find its powers drained to the point of extinction.”

With the olive branch of consultation extended by the Chief Justice, the question begs as to whether two arms of government should be consulting or cooperating. The Constitution expressly provides room for consultation between the two levels of government, i.e. county and national governments; it does not anticipate such between the arms of government but underscores the need for cooperation in Article 10, which outlines the National Values and Principles.

In essence, arms of government need to cooperate with each other for societal good. In this case, when the Executive or Parliament pushes policies that do not meet constitutional safeguards, the judicial organ remains a guardrail against these excesses. Further, it would be fundamental to ascertain the subject of consultation if such a thing were to occur. Judgments and decisions are premised on the law and facts and cannot be open to any discussion outside the four walls of a court hall.

In conclusion, cooperation is the precipice to the tiff and not consultation. Suffice it to say, as the Constitution diffuses power on how best to secure the liberty of each arm, it also contemplates that the practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity!