Ethical issues surrounding Executive, Judiciary talks

Liberal democracy, whether in a populist dispensation or not is anchored to two very critical dimensions that gives power to governors and protects the masses from would-be rogue governors.

Scholars argue that the first dimension gives state power to governors who will impose order and provide direction for the common good of the citizenry.

These governors do not have to get the individual feelings of each and every citizen but can either use their discretion to do the right thing or engage the public to get sentiments of the majority.

But in doing what they have to do, these leaders are limited by the second dimension of democracy which provides mitigating measures to limit state power by guaranteeing respect for liberty and rights of individuals.

Suffice to note, whereas liberal democracies tend to exercise monopoly of power within their boundaries, individual liberties, and political rights guard against abuse of power and it is the Judiciary that serves as the ultimate defence and protector of individual rights.

Therefore, whereas a regime having majority in Parliament is great for democracy, it can only serve the interest of the citizenry if actions of that regime are within the law and in the interest of public failure to which the Judiciary must act independently to protect the rights of the citizenry.

Numbers in the legislative arm of government means a ruling party or coalition can easily enact laws that would help it fulfil its promises to the people. However, fulfilling the promises does not mean a regime acts unconstitutionally. That is the issue with the Kenya Kwanza regime.

You see, this talk between leadership of the Executive and Judiciary raises fundamental ethical issues. Judiciary will suffer severely from such misplaced understanding of the spirit of interdependence between the Executive, Legislature and Judiciary.

Interdependence should be in the interest of the people and simply put, it means each of the arm performing it functions independently and to the hilt.

If the Executive did its part of coming up with policies, which Parliament then enshrines in a legislative framework and Judiciary enforces and where necessary interprets in accordance with the Constitution then that interdependence will be achieved.

We cannot reduce interdependence and working together to mean working in the interest of a political party or coalition, especially when the Judiciary - in executing its mandate - is framed by political actors as frustrating execution of the promises made in political rallies.

I mean what will the discussions between the Executive, in this case politicians known for ranting in public rallies on top of cars, and Chief Justice look like and what will they be discussing? Administrative issues or judgements, orders and rulings made by judges and magistrates?

Such discussions unless clearly on administrative issues trips on the faint line that is the travesty of justice and the principle of separation of power. You see some of these things stopped by court orders are in black and white and have very little other than an Executive that is overbearing and using its numbers in Parliament to push through populist policy against the law.

Kenyans should wake up and smell the coffee.
A regime that is taxing its citizens against their wishes and using public land to build houses sold at market rate in the name of affordable housing for hustlers is overstretching it.

Simply put, some of these ideas by the regime might be great, but they are yet to help the citizenry understand a few granular details. Populist and politicised statements on top of high-end fuel guzzlers might excite real hustlers who will not even afford these houses anyway and may not even care.

But the folks whose payslips bear the brunt of all these deductions care and that is the same with folks who want a clear legal framework to ring-fence some of these funds.

— The writer is a PhD candidate in political communication