REBEL WITHOUT A CAUSE? JUSTICE NJOKI NDUNGU’S LEGACY OF DISSENT AND THE DOCTRINE OF SEPARATION OF POWERS

REBEL WITHOUT A CAUSE? JUSTICE NJOKI NDUNGU’S LEGACY OF DISSENT AND THE DOCTRINE OF SEPARATION OF POWERS 600 400 theplatformke

Walter Khobe

Justice Njoki Ndung’u has emerged as something of a contrarian. She is the dissenting voice of the Supreme Court. This popular image is formed with her 440-page dissenting opinion in the Raila Odinga (2017) Judgment. The other memorable dissent recalled by many is her dissent and role in the Rawal and Tunoi saga over judges’ retirement age. However, it should be noted that she opened the salvo with her dissent on whether or not the Senate should participate in the legislative process of allocating revenue. She thereafter disagreed with the majority when it decided that the Judges and Magistrates Vetting Board could not dig up the pasts of judicial officers beyond its jurisdiction. She also wrote what are in actual sense dissenting opinions but couched as concurring opinions in the Fredrick Outa and Evans Kidero election petitions following the 2013 elections. Lastly, she charted a lone path in the matter of the mandate of the Engineers Registration Board in accreditation of engineering programmes mounted by universities.

A reading of these dissenting opinions reveals that in most instances the animating idea informing the contrarian stance by Justice Njoki Ndung’u is her approach to the doctrine of separation of powers. To critically examine Justice Ndung’u’s juridical ideology, this commentary uses the looking glass of the case of Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR, where the judge elaborately set out her approach to separation of powers, to mine and critique her approach to the doctrine of separation of powers.

The 2010 Constitution’s Separation of Powers versus Njoki Ndung’u’s Classical Liberalism

The doctrine of separation of powers is the Cinderella of constitutional discourse. While the separation of powers has been judicially invoked in several Kenyan decisions, there has yet to be a close examination of what judges mean when they refer to the separation of powers. In particular, what a commitment to separation of powers requires in terms of constitutional doctrine is not always clear.

The doctrine of separation of powers has its roots in the tradition of liberal constitutional democracy. That informs the ubiquity of Montesquieu, Locke, and Madison whenever the rise and evolution of the doctrine is told. However, it is also true that there are many conceptions of separation of powers as there are constitutional democracies. A particular constitutional system must be designed to meet the needs of the political, social, and economic commitments of a particular constitution and its social context. This informs the assertion by Jules Lobel in ‘The Political Tilt of Separation of Powers’ that “a fuller understanding of separation of powers requires attention to the political, social and economic influences and interests that underlie constitutional arrangements”. It is also the basis for the claim by Nicholas Barber in ‘Prelude to Separation of Powers’ that all doctrines of separation of powers are preceded by and grounded in political theory and a theory of state, whether hidden or explicit.

Moving to the theory of the state, it should be noted that there are two major theories of the state: the activist state and the reactive state. Mirjan Damaska in his monumental publication ‘The Faces of Justice and State Authority: A Comparative Approach to the Legal Process’ (Yale University Press, 1986) famously observed that an activist state is concerned with enhancing public welfare and constructing a just society. The activist state is not content to leave the realization of justice to social forces, individual action, or the “market,” and certainly does not assume that existing social structures are necessarily valuable as such. Realizing a better world entails not only changing the state, but also individual behavior and society itself. There are thus no social or individual spheres that are above state intervention. State planning and the administration of governmental programs extend potentially to all aspects of citizens’ lives. Such an activist state also needs a constitution and courts with the power of judicial review, that is, the power to declare statutes and governmental processes/actions unconstitutional. This means that activist (or transformative) law is aspirational because it seeks to change and improve the state and society. The activist constitutions seek to bring government in and make use of its powers for the greater good. They guide and regulate governmental action.

In contrast to the activist state, Mirjan Damaska points out that the reactive state confines itself to preserving peace and order by settling individual conflicts with a minimum of interference with individual rights and existing social structures. The characteristic legal form of the reactive state is the contract: As individuals know what is best for them, the state does not usually intervene in private interactions. Only when disputes arise is state intervention required. Thus in contrast to activist constitutions, reactive constitutions seek to protect society and individuals against state intervention. They understand social practices as manifestations of individuals exercising their freedom. Reactive constitutions are therefore first and foremost concerned with safeguarding negative rights and preventing the state or any one institution from holding too much power. In other words, they mainly seek to keep government out.

Bringing this insight by Mirjan Damaska to the Kenyan context, Nicholas Wasonga Orago has shown in his profound work ‘Poverty, Inequality and Socio-Economic Rights’ that the distinctly Kenyan model of constitutionalism embodied in the 2010 Constitution is designed to eradicate poverty and inequality, enhance the achievement of social justice, fast-track human development, as well as to entrench participatory democracy and a culture of justification in governance. Thus it would be right to observe that the kind of state that the 2010 Constitution calls for is the “activist state”.

In contrast to the “activist state” and thus constitutionalism envisaged in the Kenyan constitution, Jules Lobel has observed that the United States’ conception of separation of powers “contains a conservative bias toward preserving existing social relations” and was “designed to forestall radical change in property relations”. This therefore makes it inappropriate to transplant notions of separation of powers drawn from a ‘reactive state” system, and thus immersed in the thinking of a classical liberal context like the United States to a country like Kenya, when the ambitions that animate the two constitutions are radically different.

In light of the transformative ambition of the 2010 Kenyan Constitution, the doctrine of separation of powers in Kenya must be geared towards efficiently promoting the purposes of the 2010 Constitution. The adoption of a constitution aimed at attainment of social justice, entrenchment of participatory governance, and a culture of justification in governance requires the reconfiguration and re-conceptualisation of the doctrine of separation of powers which fits that purpose. The prioritization of social and constitutional change under transformative constitutionalism demands that courts take a flexible and instrumental approach to concepts like the separation of powers, in order to ensure that the constitutional project is advanced regardless of the contours of the political context. A rigid or overly formal account of the distribution of constitutional powers may frustrate the goals of transformative constitutionalism.

Judges occasionally pause to reflect upon larger theoretical ideas that are normally only implicit in the reasons that they give. Justice Njoki Ndung’u had occasion to set out her conceptualization of the doctrine of separation of powers in the dispute over the involvement of the senate in the processing of the division of revenue bill. In a clear case of interrogating the doctrine of separation of powers without taking into account the design and purposes of the 2010 Constitution of Kenya, Justice Njoki Ndung’u in her Dissenting Opinion in Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR opined thus:

Whereas, I agree with the submissions of counsel for the 1stamicus curiae, Prof. Ojienda, that Kenya is a constitutional democracy where courts have both the power and duty to determine whether legislation has been enacted as required by the Constitution, I am of the view that the Judiciary is only obliged to consider the constitutionality of the substance of the impugned statute but not the legislative process. It is noted that this present matter only raises issues of process of arriving at, and not the constitutionality of the content of the subject statute – the Division of Revenue Bill.”

Re-reading this passage today, it strikes me as having a distinctively Diceyan tone. Legislative supremacy that is the background motivating impulse behind Justice Njoki Ndung’u’s reasoning, is the same principle that Dicey identified as the animating principle of English constitutional law (a state with legislative supremacy and not constitutional supremacy like in the Kenyan case). It is apt to state that Njoki’s opinion began its life “with the dead hand of Dicey lying frozen on its neck”, to borrow a famous line from William Robson ‘The Report of the Committee on Ministers’ Powers’ (1932) 3(3) Political Quarterly 346.

More important for the present discussion, it is inappropriate for Justice Njoki Ndung’u to draw largely from the classical liberal constitutional contexts e.g. the United States, when attempting to develop a theory of separation of powers without interrogating the purposes of such classical liberal constitutions which are diametrically opposed to Kenya’s 2010 Constitution.

As the aspirations entrenched in article 10 of the 2010 Constitution demand, here I mean the values of social justice, human dignity, accountability, public participation, and devolution of government, there is need to connect the doctrine of separation of powers to the realization of these promises. In addition, the Bill of Rights is aimed at the protection of human dignity of all Kenyans and realization of social justice as envisaged in article 19 of the Constitution. Thus the conception of separation of powers envisaged in constitution should never be disconnected from the Constitution’s ambition to combat poverty and inequality.

In adjudicating cases involving rights, values and institutions designated by the Constitution, the doctrine of separation of powers must be conceptualized in a manner that advances the objective of achieving the ultimate aims of the Constitution i.e. eliminating inequality, eradicating poverty, and enhancing accountable and democratic governance. This conception of constitutionalism demands a human rights informed and post-liberal understanding of separation of powers. (See Walter Khobe ‘The Judicial-Executive Relations in Post-2010 Kenya: Emerging Judicial Supremacy?’ in Fombad Charles (eds.) Separation of Powers in African Constitutionalism (Oxford University Press, 2016) pp. 286-299; See also: Walter Khobe ‘Separation of Powers in Judicial Enforcement of Governmental Ethics in Kenya and South Africa’ (2018) 3 Journal of Law and Ethics pp. 37-67).

The Majority of the Supreme Court in the Speaker of the Senate case invoked Karl Klare’s exhortation that a transformative constitution demands a “post-liberal” reading to attain egalitarian social transformation. As Klare argued: “An opening to transformation requires ..lawyers to harmonise judicial method and legal interpretation with the Constitution’s substantively progressive aspirations. The burden of my argument is that law and legal practice can be a foundation of democratic and responsive transformation, but that this requires us to evolve an updated, politicised account of the rule of law.” This motivates the argument by the Majority that a constitution that embraces a substantive notion of equality, is committed to the realization of social and economic rights, and supports affirmative action, transcends a classical liberal approach to constitutionalism thus demands a social –justice oriented understanding of the rule of law –including a doctrine of separation of powers. Unfortunately, Justice Njoki Ndung’u’s jurisprudence in this case leans on the classical liberal notion of the doctrine of separation of powers that is at odds with the purposes and aspiration of the 2010 Constitution.

Njoki Ndungu’s Pre-War American Political Question Doctrine versus Post-War Constitutionalism

Justice Njoki Ndung’u in her Dissenting Opinion in Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR invokes the American concept of “political questions” doctrine thus:

[255] It is my considered view that judicial resolution is not appropriate where it is clear in a matter such as this that the political question doctrine will apply. This doctrine was well established by, and has been in practice since, the decision of Marbury v. Madison 5 U.S. 137 (1803), in which the US Supreme Court deemed a question of law inappropriate for judicial review because it should be resolved by the political and not judicial process. Under this doctrine, the interpretation of the Constitution is left to the politically accountable branches of government.”

First, this is a case where Justice Ndung’u improperly invokes the concept – ‘political questions” doctrine. Interpreting the constitutionality of a process of enacting legislation can never can attract the political questions doctrine. While it may seem technical, this determination of whether a legislative bill is a “money bill” involves the arterial health of bicameralism, quasi-federalism (devolution of government) and national integration which flow into the heart of Kenyan democracy. It is important to note that a certification that a legislative proposal is a “money bill” has the consequence that the role of the Senate is ousted completely and no amendments can be made to the bill that is passed by the National Assembly. As such a Money Bill is a special kind of bill in our bicameral system.

The very question as to whether a legislative bill is a “money bill” or not that was the subject of the dispute herein has been adjudicated by the Supreme Court of India in 2018. In the landmark Justice K.S. Puttaswamy (rtd.) & Another vs. Union of India and Others, Writ Petition (Civil) No. 494 of 2012, all five judges agreed unanimously that the certification of a bill as a money bill was capable of judicial review. This stance similar to that by the Majority of the Judges of the Supreme Court of Kenya in the Speaker of the Senate case and contrary to the dissent by Justice Njoki Ndung’u, is a tremendous victory not only for judicial review, parliamentary propriety but for the rule of law and constitutional governance as a whole.

In fact it is noteworthy that even in the United States the revered constitutional theorist Laurence H. Tribe has commented thus on the actual practice of political questions doctrine in his leading treatiseAmerican Constitutional Law’ (Mineola, second edition, 1988), at pp. 583-584:

But such a belief would hardly justify wholesale abdication to the political process since there exists no type of legislation that can be guaranteed in advance to leave important constitutional principles unimpaired, and there is simply no way for courts to review legislation in terms of the constitutional without repeatedly making difficult substantive choices among competing values, and indeed among inevitably controverted political, social, and moral conceptions. Nor can it suffice to dismiss constitutional review of socioeconomic regulation as uniquely ‘political’; all significant constitutional judgments … are inescapably political.”

Secondly, and the focus of this commentary, blindly invoking concepts from American constitutional doctrine which is a procedural pre-war device to apply them to Kenya which adopts a post-world war II model of a substantive constitution, shows that Justice Njoki Ndung’u failed to interrogate the contemporary approach in comparative practice of the place of the political questions doctrine in post-war contexts. The post-war state rests on the underlying idea of the primacy of the Constitution. This means that every state activity must be based on and in conformity with the Constitution, in other words, it must not violate or be in contradiction with the Constitution. From this angle, the Constitution is not just a political programme, but a set of mandatory rules which all state bodies are held to comply with – including the legislative and executive branches as well as government administration. Nobody is excluded, and nobody stands above the Constitution.

The Majority of the Supreme Court the Speaker of the Senate case rejected the political questions doctrine approach by Justice Ndung’u and instead held thus:

[54] The context and terms of the new Constitution, this Court believes, vests in us the mandate when called upon, to consider and pronounce ourselves upon the legality and propriety of all constitutional processes and functions of State organs. The effect, as we perceive it, is that the Supreme Court’s jurisdiction includes resolving any question touching on the mode of discharge of the legislative mandate.”

It should be noted that countries with post-war constitutions have rejected the political questions doctrine. The difference between American constitutionalism and post World War II constitutionalism has been captured by Lorraine Weinrib in her acclaimed work ‘The Postwar Paradigm and American Exceptionalism’ in Sujit Choudhry (ed.) The Migration of Constitutional Ideas (Cambridge University Press, 2006) in the following terms: “The postwar constitutional paradigm is the juridical consequence of the defeat of Nazism. The atrocities of the Second World War solidified the view that the basic structure of liberal democracy must stand on a new principle. Henceforth, liberal democratic ordering would not merely define and stabilize the exercise of state power through majoritarian machinery but would give legal priority to equal citizenship and respect for inherent human dignity…..The right-protecting instruments adopted in the aftermath of the Second World War share a conception that transcends the history, cultural heritage and social mores of any particular nation state…The value structure and corresponding institutional framework are taken to comprise ‘an objective value order’.”

Similarly, Moshe Cohen-Eliya and Iddo Porat in ‘Proportionality and Constitutional Culture’ (Cambridge University Press, 2013)’, aptly differentiate the two thus: “We identify several features of Western constitutional systems that have evolved after WWII, [in contrast to American constitutionalism]…These include a broad conception of rights, a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text, low barriers to substantive review, and no legal ―black holes (areas and actions with respect to which government needs to provide no justification). Most importantly in terms of our review, it involves a two-stage form of judicial review, identifying the infringement of the right, and justifying the infringement, with an emphasis on the second stage of justification.” Instead of a culture of justification, the political questions doctrine creates a carte blanche where public officers exercise absolute unchecked powers.

On the development of a new world constitutionalism after the Second World War, based on fundamental rights, Vicki C. Jackson notes in ‘Constitutional Comparisons: Convergence, Resistance, Engagement’, 119 Harvard Law Review 109, 111 (2005) thus: “An era of human rights-based constitutionalism was born in the global constitutional moment that followed the defeat of Nazism, producing international human rights law and more tribunal issuing reasoned constitutional decisions.” [For further views on differences between US Constitutionalism and post-war constitutionalism, see the various chapters in Georg Nolte (ed) European and US Constitutionalism (Cambridge University Press, 2005); Jacco Bomhoff Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (Cambridge University Press, 2013); See also Mark Graber, Sanford Levinson, and Mark Tushnet (eds) Constitutional Democracy in Crisis? (Oxford University Press, 2018)].

Furthermore, we should always remember that while the United States’ constitution is distinctive as the first post-colonial, republican constitution adopted by any country, there have emerged rival models of constitutionalism that are more in tune with the leitmotif of the 2010 Kenyan Constitution. More relevant to the Kenyan context is the distinct attraction of post-authoritarian, dignity protecting constitutions that resonate with countries under going similar transition as Kenya’s, especially after the fall of authoritarian regimes (the example being: Germany); and the constitutional models from the global south that are attuned not only to the need to constrain public power, but to mandate and channel its exercise in the service of human development in the context of deeply entrenched socio-economic inequality (the examples being: India, South Africa, and Colombia). (See David Bilchitz and David Landau (eds) The Evolution of the Separation of Powers Between the Global North and the Global South (Edward Elgar Publishing, 2018) for theorization of the distinct nature of separation of powers in the global south)

One of the differences between American constitutional theory and post World War II constitutionalism is how the two constitutional systems approach judicial review. Alec Stone Sweet in ‘Constitutional Courts’ in Michel Rosenfeld and Andras Sajo (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) observes thus with respect to the difference between the two systems:

As a formal matter, any constitutionally-based system of rights protection can be considered to be less robust, or ‘complete’, the more it permits or tolerates gaps in rights protection. Since the end of the Second World War, one important trend has been toward completeness: presumptively, no legal norm, no public act, no violation of a right should be beyond the control of the constitutional judge. The situation contrasts sharply with the American system, where the case or controversy requirement, inter-branch comity, and ‘political question’ and other deference doctrines are expected to constrain the exercise of review will routinely produce gaps in rights protection. It is important to recognize in this regard that, unlike the US Supreme Court, many Constitutional Courts were created, explicitly and as a constitutional priority, to protect rights.”

In adopting a critical examination on the question of the applicability of the political questions doctrine, the Supreme Court of Ghana in a 1993 case New Patriotic Party v Attorney-General (1993) 2 GLR 35 (31st December Case) held that the controversy whether or not the celebration of the 31st December coup d’etat was inconsistent with or in contravention of the Constitution, would itself raise an issue of interpretation of the Constitution for which the Supreme Court had jurisdiction under article 2 of the Ghanian Constitution to adjudicate and make such orders as it might consider appropriate. In the words of Adade JSC:

… the Constitution itself is essentially a political document. Almost every matter of interpretation or enforcement which may arise from it is bound to be political, or at least to have a political dimension….

. . . by articles 1 and 2 of the Constitution, 1992, that doctrine cannot have any application to us here in Ghana.

After examining and distinguishing the United States case of Baker v Carr cited by defence counsel in support of the argument that the plaintiffs’ case had raised a political question which could not be determined by the Supreme Court, Adade JSC concluded that the doctrine of political question, based on the federal nature of the United States Constitution, was inapplicable in Ghana. The judge therefore held that the Ghana Supreme Court as “the ultimate interpreter” of the Constitution under articles 2(1) and 130 of the Constitution might lawfully decide cases of a political nature.

(For discussion see: Kofi QuashigahDefying Assumptions about the Nature of Power Relations Between the Executive and Judiciary: An Overview of Approaches to Judicial and Executive Relations in Ghana’ in Charles M. Fombad (ed) Separation of Powers in African Constitutionalism (Oxford University Press, 2016))

It is noteworthy that it seems Justice Adade, was following in the footsteps of the revered Indian Justice Bhagwati in The Dissolution Case, 3 SC Indian Supreme Court at 660, where Bhagwati famously rejected the political questions doctrine in the following terms: “every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political.” In fact this point made by Bhagwati on the impossibility of distinguishing between political and non-political questions was memorably put by the famous German-American jurist and political theorist Hans J. Morgenthau in ‘The Concept of the Political’ (Palgrave Macmillan, 2012) thus “We have to remark that a distinction between political and nonpolitical questions which depends on their purposes is impossible, because the concept of the political is neither bound with conceptual necessity to a particular purpose, nor can it be excluded from any purpose … The concept of the political does not have a fixed substance; it is rather a feature, a quality, a coloring, which can be attached to any kind of substance.”

Similarly Chief Justice Aharon Barak led the Supreme Court of Israel in rejecting the political questions doctrine in the landmark Ressler v. Minister of Defense (HCJ 910/86). In the Ressler decision, Barak delineated two classic categories of justiciability, normative and institutional. Normative justiciability deals with the question of whether authentic legal criteria exist with which the court can decide a case before it; if there be no legal criteria with which to rule, the case is normatively non-justiciable, and the court cannot hear it. Institutional justiciability, on the other hand, deals with whether the subject matter of the case is “appropriate” for judicial decision; a court which invokes this reason for not hearing a case is saying that even if it could find a legal basis on which to rule, it considers some other branch of government the more appropriate venue for making the decision.

A finding of normative non-justiciability is literally inconceivable as Barak finds, because there can exist no legal void. The law can never be silent, and that which is not proscribed by the law is permitted by the law: “There are no acts (of commission or omission) to which the law does not apply. Every act is caught within the world of law. Every act can be ‘imprisoned’ within the framework of law. Even the activity bearing the greatest political character—such as making war or peace—is examinable by judicial criteria.”

Such a position, however, does not necessarily exclude the argument of institutional non-justiciability, the idea that there are some areas where it is “inappropriate” for a court to intervene because the separation of powers at times mandates judicial deference to executive discretion or parliamentary independence. Yet even here, Barak rejects the prospect of restricting the courts. First, he cites a prima facie problem with institutional non-justiciability. Once we accept a legal philosophy that finds the juridical in everything, and which thus grants the court virtually limitless jurisdiction, where does the court draw authority to turn away a dispute tendered before it? The tables are turned: It is precisely the refusal of the court to judge an issue of a political nature which would constitute “political thinking,” and which is therefore inappropriate for the court. Even in a dispute of a political nature, argues Barak, judges are amply equipped to apply legal criteria. Any time a court declares an issue too “political” and hence “inappropriate” for judicial intervention, the court is essentially granting the government freedom to act outside the law.

By virtually doing away with institutional non-justiciability, Barak challenges the common conception of the separation of powers, in which the essential tasks of governance are divided among the three branches of government in accordance with the perceived strengths of each. Departing from the classic understanding of the separation doctrine, which discourages courts from intervening in political questions best left to more representative branches of government, Barak invokes the separation of powers to justify court intervention in the activities of the legislature and the executive. True, Barak writes, separation of powers places two limitations on the judiciary: It obligates the judge to give effect to the policy behind a law passed by the government, and it bars a judge from intervening in government actions that are technically legal and fall within a “zone of reasonableness.” Nonetheless, the separation of powers does not imply to Barak the dictatorship of each authority within its own sphere. Instead, Barak advocates a set of relations that foster “non-dependence by defined mutual supervision.” Even the term “separation of powers” is misleading, since between the branches stand not walls but “bridges which supervise and balance.” The purpose of this delicate equilibrium is not effective government per se; rather, what ultimately motivates the compartmentalization of power and the harnessing of authority is a desire to safeguard the freedom of the individual. With mutual supervision essential and rights at stake, the Court, entrusted by society to safeguard the rule of law and protect individual rights, must take a most active role in reviewing the activities of the executive and legislature.

(See also Aharon Barak ‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’ The Supreme Court 2001 Term, Harvard Law Review (2002-2003)).

On its part, the South African Constitutional Court has so far not explicitly applied a political question doctrine in its more than 20 years of operation and former Constitutional Court Justice Lourens WH Ackermann, in ‘Opening Remarks on the Conference Theme’ in Jonathan Klaaren (ed), A Delicate Balance: The Place of the Judiciary in a Constitutional Democracy (SiberInk 2006), has publicly argued against its adoption on the grounds that ‘[i]n a substantive constitutional state such as ours, there can be no so-called “political question” doctrine leading to a conclusion different to that dictated by the Constitution’.

In fact an implied rejection of the political questions doctrine that is the guiding light for post-1994 South Africa is former Chief Justice Arthur Chaskalson’s opinion that all exercise of public power is subject to the constitutional principle of legality and rationality. This he said to apply – in principle – ‘to the exercise of all public power by members of the executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution, and therefore unlawfulPharmaceutical Manufacturers [2000] ZACC 1 at paragraph 90. Furthermore in Fedsure Life Assurance Ltd. V Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 the Constitutional Court observed at paragraph 58 that that all decisions by public officials are subject to constitutional review because “the legislature and the executive……may exercise no power and perform no function beyond that conferred upon them by law.” It appears, then, that no exercise of public power lies beyond the discipline of the rule of law via judicial review. Indeed this was recently affirmed at the South African High Court by Rogers J in Democratic Alliance v President of the Republic of South Africa [2017] ZAWCHC 34 at paragraph 6 thus: “I am not aware of any decision of our higher courts holding that certain classes of acts performed in the exercise of public power are altogether beyond the reach of judicial scrutiny.”

(For more see: Timothy Fish Hodgson ‘The Mysteriously Appearing and Disappearing Doctrine of Separation of Powers: Toward a Distinctively South African Doctrine for a More Radically Transformative Constitution’; See also: Dennis Davis ‘Separation of Powers: Juristocracy or Democracy’.)

With respect to the implied rejection of the political questions doctrine by the German Constitutional Court, Thomas M. Franck in ‘Political Questions, Judicial Answers’ (Princeton University Press, 1992) observes thus:

The German theory begins at the opposite doctrinal pole from ours, then moves in practical increments toward a pragmatic middle position. In theory, the German courts are logically consistent: Everything is adjudicable. “The difference between law and politics, particularly in constitutional matters,” a leading German judicial commentator has observed, “does not seem to impress the German judicial system.” [see Bachof, “The West German Constitutional Judge Between Law and Politics,”] In particular, “constitutional law, with its broad general clauses and its vague conceptions of values, offers a particularly wide scope for interpretation. Any wish to keep political considerations out of this interpretation would be doomed to failure at the outset.”An American student of the German system, Professor D. Kommers, has concluded: “There is no ‘political-question’ doctrine as such in German constitutional law.”[see D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (1989) 163] At the level of general theory, German courts have defined a bold position: “All questions arising under the Basic Law are amenable to judicial resolution if properly initiated under one of the eighteen different procedures authorized for the resolution of constitutional issues. These issues include the highly politicized field of foreign affairs.” Even though, as Justice Kondrad Hesse has observed, “separation of powers constitutes the basic organizing principle of the [German] Constitution,” this has not been translated by the German judiciary to require abstention from questions raising political questions. Specifically, German judges have been careful to avoid creating any theoretical basis for exempting from the scope of their authority to review legislation and executive initiatives the broad category of legal disputes arising out of the conduct of foreign relations or efforts to protect the national security. In German jurisprudence, such cases are as amenable to adjudication as any other.”

For a further examination of the rejection of the political questions doctrine by the Federal Constitutional Court of Germany, See David P. Currie ‘The Constitution of the Federal Republic of Germany’ (University of Chicago Press, 1994); Donald P. Kommers ‘Germany: Balancing Rights and Duties’ in Jeffrey Goldsworthy (ed.) Interpreting Constitutions: A Comparative Study (Oxford University Press, 2006); See also Georg Vanberg ‘The Politics of Constitutional Review in Germany’ (Cambridge University Press, 2005).

The Supreme Court of Canada like the rest of the post World War II era apex courts has rejected the political questions doctrine. The Supreme Court of Canada in Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, 455 rejected the political questions doctrine and held that:

“[C]abinet decisions fall under s. 32(i)a of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution……

Section 1  of the Charter in my opinion, is the uniquely Canadian mechanism through which the courts are to determine the justiciability of particular issues that come before it. It embodies through its reference to a free and democratic society the essential features of our constitution including the separation of powers, responsible government and the rule of law. It obviates the need for a “political questions” doctrine and permits the Court to deal with what might be termed “prudential” considerations in a principled way without renouncing its constitutional and mandated responsibility for judicial review.”

It is not open to the court: “to relinquish its jurisdiction either on the basis that the issue is inherently non-justiciable or that it raises a so-called ‘political question’.”‘

Following this decision, it has been asserted by the leading Canadian constitutional law theorist Peter W. Hogg in his leading treatise, ‘Constitutional Law of Canada’ (4th ed. Carswell, 1997) that: “[I]t is clear that there is no political questions doctrine in Canada.”

Commenting on the post-communist countries in the Central and Eastern Europe that enacted new constitutions after the fall of the communist regimes in 1989 and early 1990s, Wojciech Sadurski in
Constitutional Review in Europe and in the United States: Influences, Paradoxes, and Convergence’ in Marcello Fantoni and Leonardo Morlino (eds.) The American Exceptionalism Revisited (Viella, 2015) notes on the rejection of the political questions doctrine by the Hungarian Constitutional Court and the Polish Constitutional Tribunal:

in the US model the courts are banned from considering constitutional matters which directly raise purely “political questions”. In a canonical formulation this has been defined, inter alia, as a case where there is “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”, or “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”, or “the potentiality of embarrassment from multifarious pronouncements by various departments on one question”, etc. In contrast, in abstract review there is no need to adopt a “political question” doctrine as a factor of restraint that would limit the role of judges; after all, the whole point of having abstract judicial review is that judges are invited to pronounce about the conformity with the constitution of political choices par excellence made by the parliament. To adopt a “political question” doctrine would therefore contradict the very rationale of having an abstract review in the first place, and it is no wonder that such a doctrine has not been developed, at least explicitly, in those systems preferring such a model of constitutional review.”

The Supreme Court of Uganda has also revised its previous adoption of the political questions which had appeared in the earlier opinions by retired Justice George Kanyeihamba. The latest stance by the apex court in Uganda is found in Center for Health Human Rights & Development (CEHURD), and 3 Others versus Attorney General; Constitutional Appeal No. 1 of 2013 where the court held thus:

Under the Constitution of Uganda, when a person claims that anything is done under the authority of any law or any action or inaction on the part of “‘any person or authority is inconsistent with or in contravention of the Constitution, the Constitutional Court is the appropriate court to determine whether the person’s claim has substance or not. Therefore, the Constitutional Court cannot abdicate this duty by declining to entertain a Petition filed under Article 137 of the Constitution on grounds that the matter will be infringing on the discretionary powers of another organ of the State……. Given my finding above, I would, therefore hold that the political question doctrine has limited application in Uganda’s current Constitutional order and only extends to shield both the Executive arm of Government as well Parliament from judicial scrutiny where either institution is properly exercising its mandate, duly vested in it by the Constitution. It goes without saying that even in these circumstances, factual disputes will always come up where a private citizen challenges either the Executive or Parliament action or inaction and the resultant outcome of such actions and inaction in respect to either institution’s implementation of its respective constitutional mandate and whether such action or inaction contravenes or is inconsistent with any provision of the Constitution. It is my considered view that it was for this very purpose that the Constitutional Court was established and given powers s under Article 137(1) and (3) to consider these allegations and determine them one way or another.”

(For critique of the evolution and death of the political questions doctrine in Uganda, see Joseph Oloka-Onyango When Courts Do Politics: Public Interest Law and Litigation in East Africa (Cambridge Scholars Publishing, 2017))

On its part, the Supreme Court of Pakistan has in Muhammad Nawaz Sharif v. Federation of Pakistan (1993) 433 PLD (SC) held that: “the courts function is to enforce, preserve, protect, and defend the constitution” and it would exercise its judicial review power “irrespective of the fact that it is a political question” to address “any action taken, act done or policy framed which violates the provisions of the constitution” or any “abuse, excess or nonobservance” of the constitution by governmental actors. The Supreme Court of Pakistan has reiterated in Watan Party and Others v. Federation of Pakistan and Others (2012) 292 PLD (SC) at 59-60 stated that: “[w]here in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves [a] political question, cannot compel the court to refuse its determination.”

(For discussion see: Waris Husain The Judicialization of Politics in Pakistan: A Comparative Study of Judicial Restraint and its Development in India, the US and Pakistan (Routledge: 2018))

The Supreme Court of Nigeria has asserted that judicial powers extend to all matters. Fatai-Williams, Chief Justice held in Alegbe v. Oloyo (1983) NSCC 315 thus:

In Nigeria, when a superior court…is asked to interpret or apply any provision of the constitution, it is not thereby dealing with a political question even if the subject matter of the dispute has political implications. Such a court…is only performing the judicial functions conferred on it by the constitution.”

(See Enyinna Nwauche, ‘Is the End Near for the Political Questions Doctrine in Nigeria?’ in Charles Fombad and Christina Murray (eds), Fostering Constitutionalism in Africa (Pretoria University Press 2010) for academic commentary).

Lastly, the Singapore Court of Appeal in the Seminal 1988 case of Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR (R) 525 held that the President’s and ministerial discretion is justiciable and subject to judicial review. The Court held: “In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should examine the exercise of discretionary power.”

(See Jaclyn L Neo, ‘‘All Power Has Legal Limits’: The Principle of Legality as a Constitutional Principle of Judicial Review’ (2017) 29 Singapore Academy of Law Journal 667 for critique)

In effect following the post world war II developments and the normative foundation of the 2010 Constitution, one would ask which question is this that can arise in Kenya that is not subject to examination for rationality, legality and for conformity to the demands of article 10 of the Constitution? What is this question that touches on the Bill of Rights that can escape the snare of article 19 of the Constitution that demands the social, economic, and political policies must respect and conform to the Bill of Rights? The entrenchment of values and principles of governance in article 10 establishes a value-oriented constitutional system which runs in tandem with the rights revolution that has occurred since the Second World War. Much of the pioneering constitutional work was done by the German Federal Constitutional Court established to oversee the development of its postwar constitution, the Basic Law. Once the constitution is treated as a value order, all governmental action is subject to the principle of objective justification. The silences that once were filled by political judgment after legislative or executive deliberation are now resolved by a judiciary which explicates the value order implicit in the constitution.

Furthermore, Article 20(1) constitution makes it inappropriate to for Kenyan courts to adopt the political question doctrine by stipulating that the Bill of Rights binds all state organs. Moreover, articles 2(2) and 3(1) of the Constitution require state authority to exercised in accordance woth the Constitution. Thus in accordance with article 165(3)(b) and (d) of the Constitution, the courts have the power as guardians of the Constitution to subject all executive and legislative conduct to constitutional scrutiny.

In Kenya like other post-war countries, on a general level, the practice of judicial review has more legitimacy as compared to the United States since courts are explicitly authorized by the Kenyan Constitution to engage in the practice. By virtue of the explicit provisions of the Constitution, judges have been given a role to review the constitutionality of legislation and actions of the executive thus the self-limiting doctrines of judicial review developed in the United States do not apply to Kenya. By contrast, the power of the U.S. Supreme Court to engage in judicial review was developed by judicial decree thus the need for self-limitation by courts in the United States. This is a difference between judicial review in Kenya and the United States that happily the Supreme Court of Kenya recognized in the case of Communication Commission of Kenya vs Royal Media Services & 5 Others [2014] eKLR when it held that “… the power of judicial review in Kenya is found in the Constitution, as opposed to the principle of the possibility of judicial review of legislation established in Marbury vs Madison 5 U.S. 137 (1803).”

The point that is being canvassed is that revolutionary constitutions that have emerged after the Second World War, to borrow Dieter Grimm’s useful distinction in ‘Types of Constitutions’ book chapter in Michel Rosenfeld and Andras Sajo (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012), have been foundational and not modifying constitutions: they did not simply impose limits on existing institutions, like the settlement of 1688 in England, but created new political communities from scratch or fundamentally reconfigured the existing ones. According to the logic of foundational constitutions, all institutions exercising public function derive their authority from the constitution. In this framework, there is no logical space for institutions whose authority is prior to or independent of the newly enacted constitution. This was made clear by the following dictum of the revered Dikgang Moseneke, DCJ on behalf of the Constitutional Court of South Africa in International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) at para 92: ‘In our constitutional democracy all public power is subject to constitutional control. Each arm of the state must act within the boundaries set. However, in the end, courts must determine whether unauthorised trespassing by one arm of the state into the terrain of another has occurred. In that narrow sense, the courts are the ultimate guardians of the Constitution. They do not only have the right to intervene in order to prevent the violation of the Constitution, they also have the duty to do so.’

It is worth reiterating for the umpteenth time that there is a stark contrast between post-war constitutionalism and earlier constitutions. Constitutional systems grounded in 19th century conception of public law like the United States and the United Kingdom typically retain certain no-go areas, notwithstanding the growth of judicial review since the 1970s, such as the power to wage war, to make treaties, to conduct foreign relations, to determine economic and taxation policies, to appoint Cabinet ministers, and so forth.

However, even with respect to the United Kingdom, the idea of a “no go zone area” for the judiciary has diminished. In the recent ground breaking lecture by Lord Mance, Deputy President of the Supreme Court of the United Kingdom, titled ‘Justiciability’ (2018) 67(4) International & Comparative Law Quarterly pp. 739-757 based on the 40th annual FA Mann Lecture given by Lord Mance in Middle Temple Hall on 27 November 2017, Lord Mance highlights the recent move by domestic courts away from traditional ‘no-go’ areas towards a more nuanced and balanced understanding of the respective roles and competences of the executive and the judiciary in the United Kingdom. To quote his words:

The political question doctrine has faded from English common law thinking. But very often it will be unnecessary and inappropriate to accept the blunt argument of a no-go area. There is a continuing shift to a more nuanced recognition that each case must be approached on its own merits, weighing all relevant factors to decide whether the particular issue is really non-justiciable, or whether any relief by way of judicial review should as a matter of discretion be granted. This shift will be promoted by fuller recognition that the intensity of any judicial review should always reflect the respective institutional competence and expertise of the original decision-maker compared with that of any court asked to review the original decision.”

The point still holds that post-war constitutions operate differently. Most have explicit recognition of the power of judicial review thus specifically charging courts with judicial oversight over the political branches. Almost invariably, these constitutions give express textual protection to democratic processes and to the institutions of democratic politics. These constitutions frequently impart to the judiciary a direct administrative role in ensuring the integrity of the values, principles and rights enshrined in these post-war charters. The political question doctrine thus poorly captures the challenge faced by courts under modern constitutional commitments to democracy.

Given the minimalist nature of the U.S. Constitution, Courts around the world seeking guidance confronting structural deficits of democracy therefore need to look elsewhere. The U.S. Constitution is among the oldest of the written constitutions, and the U.S. Supreme Court conjured up the power of judicial review out of a curious combination of political reasoning and constitutional voids. Yet the concern over the “counter-majoritarian dilemma” in the United States, to return to Alexander Bickel’s famous formulation, inhibited the ability to elaborate a constitutional doctrine of democracy as such. The U.S. Constitution is conspicuously silent on democracy itself and on its constituent institutions, most notably political parties. Like all constitutions, it is a product of its founding political compromise. In a republic divided between slave and free states, and with a need to guarantee that control of the federal government would not upset that dreadful balance, the U.S. Constitution basically excluded the central government – including the federal courts – from passing on fundamental questions of democracy.

The flexible approach to the separation of powers canvassed in this commentary thus resists bright lines. It recognises that the actions of one branch of government will often depend on how another branch of government exercises its own powers. It recognises the interconnection between the different branches of government. It resists determining the proper role of each institution of government in the abstract, or for all time.

Conclusion

In all of this, Justice Njoki Ndung’u is something of a paradox, and something of a contrarian—she has often found herself at odds with the vision of a charter she played a role in drafting as a member of the Committee of Experts that steered the final phase of the constitution making process. Even as we think of this paradoxical, contrarian role, we must remember that the doctrine of separation of powers in a particular country is a practical matter of constitutional design informed by the theory of state. To develop a Kenyan doctrine of separation of powers, we must analyse of the aspirations that underpin the Constitution, the purposes of the constitution, and the type of constitutional democracy embodied in the constitution. It is only then that we can develop a Kenyan approach to the doctrine of separation of powers that is in tune with the transformative nature and ambition of the 2010 Constitution.

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