BY SAM ALFAN.
Political class have been known to unleash attacks against the Judiciary on the floor of the house whenever courts rule against them.
The trend was expected when the Court of Appeal declared the Finance Act, 2023 as unconstitutional triggering attacks by Members of Parliament.
Interestingly, some of those attacking the Judiciary are lawyers and who should know the court process and the right to appeal to a higher court whenever a party loses a case.
Reacting after the quashing of the controversial Act, some MPs threatened to cut the Judiciary budget because of the judgment.
Among those who criticized the courts are Thika Town MP Alice Nganga suggested budget cuts for the Judiciary.
Any move to cut judiciary will interfere with it mandate and affect various project initiated by the judiciary to build courts and recruitment of more judges.
Majority leader in Parliament Kimani Ichung’wah criticized the court terming the decision saying the “judicial overreach must end”.
The Kikuyu MP castigated the court for failing to consider the views of the public before the Act was enacted.
Ichung’wah described the decision as an act of sabotage, especially to Parliament, the arm of government tasked with making laws.
In yet another move, Homa Bay Town MP George Kaluma criticized Highh Court judge Bahati Mwamuye after he issued orders directing parliament collate and preserve all documents and records related to the nomination, vetting, and appointment processes of the Cabinet Secretaries.
The MP wondered why courts wanted to “micromanage Parliament”.
But defending the courts, senior counsel Paul Muite said the accepted principle governing the relationship between Parliament and the Judiciary when exercising their respective Constitutional mandate is RESTRAINT and RESPECT.
He said some of the language used by the MPs is way over the brim.
He said in the 2010 Constitution, Kenyans delegated their Sovereign Authority to the Judiciary to interpret Laws enacted by Parliament to ascertain whether or not such Laws are consistent with the Constitution.
“We have SUPREMACY of the Constitution, not of Parliament and everyone, the President and Parliament included must act and operate within and in accordance with the Constitution,” said the veteran lawyer.
He added that when the Courts declare an Act of Parliament unconstitutional, Parliament must accept that.
“Threatening to de-fund the Judiciary because of declaring Statutes unconstitutional is itself unconstitutional and a reckless action potentially pushing Kenya towards anarchy and a failed State. We have a choice to make, a Country governed by Constitutionalism and the Rule of Law or a dictatorship, military or failed State,” said SC Muite.
Lawyer Gitobu Imanyara added that attacks on the judiciary are otally uncalled for.
“They should pass laws in accordance with the Constitution if they want judgments in their favour. The judges are being faithful to their oath of office. Our governance system provides for these checks and balances,” added lawyer Imanyara.
Law Society of Kenya President Faith Odhiambo condemned the “thoughtless, insensitive and reckless statements” by the MP for Thika Town MP.
“While judgements are subject to constructive criticism founded on legal principles and constitutional values, such threats and inflammatory rhetoric from a sitting MP are unpalatable,” said LSK President Faith Odhiambo.
LSK reminded the National Assembly that the independence of the Judiciary is a mandatory constitutional principle that upholds the rule of law, constitutionalism, and democracy.
LSK added that allocation of public money towards constitutional funds such as the Judiciary Fund is not a discretionary privilege to be granted by Parliament on whims, but is a duty that Parliament must fulfill in accordance with constitutional principles.
“We put the National Assembly on notice against any attempt to subdue judicial Independence and decisional autonomy of judges through threats and intended illegal reduction of budgetary allocations. We urge our MPs to fulfil their mandate in a manner that does not offend the Constitution and to use legal means to resolve any dissatisfaction with the performance of duties by independent institutions,” LSK said.
