It’s healthy for Executive, Judiciary to differ
What you need to know:
- While it may be thought unique that there are recriminations between the Executive and the Judiciary, this is not necessarily an indication of a crisis of a legal nature.
- On the contrary, it is the various arms exerting their respective versions of their standing within the Constitution.
- If there should be a controversy, then it can always be converted into a dispute for determination by the Judiciary in accordance with the law.
The Chief Justice of Kenya may have surprised many this week when he called out the President at a press conference for failure to comply with a court order for the appointment of 41 persons whom the Judicial Service Commission, of which the Chief Justice is chairperson, had interviewed and recommended for appointment to various courts in the country. These recommendations were made almost a year ago.
The major complaint by the Chief Justice was that the President had refused to make the formal appointments as required by the Constitution on the grounds that the President had received credible information that some of the persons recommended were unworthy for appointment on account of serious flaws of character or competence. These grounds, however, have not been disclosed in public.
The Chief Justice added that his attempts to procure an appointment with the President to discuss the issue had been unsuccessful.
The Attorney-General, also a member of the Judicial Service Commission, responded to the chief Justice by dismissing the complaint and claiming that the President was of the view that the appointment of such persons would constitute abdication of his responsibility to uphold the law.
As would be expected, these exchanges between the Judiciary and the Executive led to diverse opinions and political analyses, with parties taking different sides as to who was right. Some even went as far as indicating that it was an indication of instability in the country if the respective heads of the two arms of government did not appear to be acting in unison.
Legal commentators have instead indicated that the issue at stake is one of separation of powers, which then means that the different arms of government must act as co-equal partners in preserving the constitutional equilibrium that a democracy requires, nay demands.
These inter-branch conflicts are not novel and not necessarily bad for the country. I was reminded of the case taught early in law-school constitutional theory classes of Marbury and Madison, which was also about the appointment of judges. The plaintiff, William Marbury, had been named a Justice of the Peace just before the second US President John Adams left office. The process of appointment had been virtually completed and the document of appointment, called a Commission, signed by the Secretary of State just before the third president (Thomas Jefferson) took office. When the newly appointed Secretary refused to deliver the official document of appointment, Mr Marbury sued seeking an order to compel the delivery of the document to him.
The Supreme Court held that Marbury was entitled to the Commission but that the law on which Marbury had brought the suit was unconstitutional and therefore void. This indicates that the appointment of Judges has also been a process ridden with legal controversy. But more importantly, this case became a cornerstone of the legal principle of the power of the court to declare any law that fails to abide by the constitution as void.
This is just an indication that the Judiciary and the Executive do not always operate in comity and that in itself may actually be good for the constitutional development of a country.
The only reason that these exchanges, particularly by a vibrant judiciary, may surprise some is that we are yet to internalise the constitutional structure of the Judiciary as a co-equal branch to the Legislature and the Executive.
The principle of separation of powers and the mutual checks and balances requires that the branches of Government be cordial rather than familiar and cozy with each other. The Chief Justice’s claim of inability to obtain an appointment by the President reminded me of this principle but with an interesting bent on the American case of Judge Sherman Minton. He was so close with President Harry Truman that when he heard of a vacancy in the Supreme Court following the death of another judge, he travelled to Washington and took a taxi to the White House without notice and met the President, lobbied for appointment to the Supreme Court – and got himself nominated to the court.
But such familiarity with the Executive will not always bring benefits: Justice Abe Fortas was said to be a close personal friend and advisor of President Lyndon Johnson. When President Johnson sought to promote Justice Fortas from associate Justice of the Supreme Court to the Chief Justice, this closeness was one of the reasons the Senate cited as grounds for rejection of his nomination by the President to the office of Chief Justice. One reason for this was that Justice Fortas had been giving legal advice to the president while sitting as an associate Justice of the Supreme Court.
Other judges eschew any hint of links to the Executive. Justice John Harlan is one such judge. While serving as an associate Justice of the Supreme Court between 1954 and 1971, he was as concerned about the implication of friendly association with the Executive as implying endorsement of the Executive’s action that he stopped voting in any elections, declined to applaud during any president’s speech during presidential states of Union addresses to the Congress. He also persuaded the judges of the same court to stop attending a traditional meeting at which Supreme Court judges would visit the White House to pay respects to the president.
These testy relationships show themselves when it is noted that the Executive has a role in the appointment of the judges. In the case of the United States, the best example is that between President Dwight Eisenhower and Earl Warren, whom he appointed as Chief Justice. The thinking may have been that because President Eisenhower and Earl Warren were both members of the Republican Party, the relationship with the Executive would be amiable or even favourable to the Executive. It never was and President Eisenhower is quoted as having said that the appointment of Earl Warren as Chief Justice of the United States was his biggest regret.
On the Kenyan scene, while it may be thought unique that there are recriminations between the Executive and the Judiciary, the examples demonstrate that this is not necessarily an indication of a crisis of a legal nature.
On the contrary, it is the various arms exerting their respective versions of their standing within the Constitution. If there should be a controversy, then it can always be converted into a dispute for determination by the Judiciary in accordance with the law.
Differences expressed honestly by the respective branches of government are not an indication of strife.
The writer is Head of Legal at Nation Media Group PLC