The Milimani Law Courts in Nairobi.
Generally speaking, we are all endowed with a keen awareness of the full extent of our corporeal extent and capacities.
The upshot of endeavour: power, achievement and the differentials of status and merit incidental thereto, is essentially implicit affirmation of the existence of boundaries to our physical being, and of limits to our physical capacities.
Thus, we are strictly accountable for what we accomplish by dint of our anatomic exertions, because our effort is limited and observable. We do not occasion tectonic disruptions by merely rising, laying down or turning. In antiquity, this fantasy gave rise to an entire body of entrancing mythology.
In our time, this fantasy often gives rise to technological innovation which endows us with stupendous capabilities to transcend our somatic appurtenances.
To quote America's founding fathers, we know these truths to be self-evident. This knowledge is not inborn, but accumulates steadily in the course of physical growth and psycho-moral development. At birth, we are waited on hand and foot by the entire universe, and our every need and wish are fully catered to.
It is possible therefore, and indeed, Dr. Shadrack Ogoma taught me 26 years ago that neonates cannot tell that the whole world is not merely its extended appendages. The recognition of the external physical and social world is an integral part of the development of the idea of the self, and the delineation of the boundaries separating us from everything else in the world. It follows that anyone who has a problem arriving at this point of development is encumbered by grave psychological and moral issues.
The current discourse about the Judiciary, although quite intense, appears unable to crystallise thematically, in terms of whether judicial corruption and accountability are at issue, or judicial independence and immunity from scrutiny. Consequently, an outlandish thesis has evolved which is, bizarrely enough, enabled by leading elements of the Judiciary. It proceeds from the premise that judicial independence and accountability are mutually exclusive. Without hesitation, it has been asserted with perturbing frequency and vehemence that complaints about judicial corruption and impunity, and demands for judicial accountability, are attacks on judicial independence.
This disingenuous conflation of national values and principles of governance conduces a malignant corollary, whereby the Judiciary is able to propound an argument for formal impunity in the name of the separation of powers. Indeed, judicial immunity and impunity are actively expounded under this thesis to be the cardinal object and expression of constitutionalism and the rule of law. It also implies that the executive and the legislative arms are endowed with an inferior bundle of institutional independence under the constitutional separation of power. This explains the casual recklessness with which the courts interpose themselves in the accountability dynamic between the people and their elected representatives.
This dynamic comprises an understanding whereby the people mandate their democratically elected leaders to actualise their aspirations through policy, and constitutes the nucleus of our social contract. State policy is therefore the expression of the people's intentions by way of sovereign power thus donated, and the accountability dynamic between the people and their representatives is fundamentally political.
Purely on account of this gargantuan delusion, elements in the Judiciary have proceeded to arrogate to themselves a highly questionable power to interfere with state policy, undermine the political relationship between the people and their elected representatives, and subvert the social contract on which our constitutional system stands. By perpetuating the dubious pretence of a gatekeeper of sovereign power, it runs afoul of an elementary constraint to jurisdiction: the infamous political problem.
The reason why the Judiciary must take all precaution to avoid the political problem is basic commonsense: it is the most reprehensible of institutional trespasses for the reason that the Judiciary is not elected by anyone, and depends on Parliament for budgetary allocations, and on the Executive for the execution of its decisions and directives. Its relationship with the people's sovereign power is heavily mediated by these two arms of government, which are directly plugged into the people's power.
State policy, promulgated by the Executive through Parliament, is subject to accountability and evaluation in a political framework, not delusional gate-keeping by the courts. By infringing the political problem doctrine, the Judiciary invites itself into a space where it cannot be held to account by way of democratic elections and adversarial political scrutiny. Moral hazard, in the form of incorrigible turpitude and horrific impunity is inevitable, and its consequences are perilous and often incurable.
The judiciary is ill-suited for the purpose it assumes in arbitrating public policy, and fatally vulnerable to the stampeding helter-skelter of our politics in full cry. Most critically, it is constitutionally unwelcome.
Mr Ngéno is an Advocate of the High Court
