Sunday, December 18, 2011

This is no time to backslide

Cabinet collective responsibility is constitutional convention in governments using the Westminster System that members of the Cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. This support includes voting for the government in the legislature.

Justin Kimani, writing in the Standard on Sunday (Bashir verdict needs collective security), makes the case that the ruling by Judge Ombija, upon an application by the International Commission of Jurists - Kenya Chapter, directing the Government of Kenya to arrest Omar Hassan al Bashir, the President of Sudan and deliver him to the International Criminal Court to face trial for crimes against humanity amongst other charges, was in breach of the doctrine of collective responsibility. In light of the constitutional principle of separation of powers, Mr Kimani is wrong. While the government is made up of three interlinked and inter-dependent arms, the doctrine of collective responsibility only extends to the Executive Branch; it is not applied across the three Branches. Each is independent to make decisions and to act within the strict boundaries of their mandates but not in concert with each other. Otherwise, they would be unable to play the role of checking and balancing one another.

Mr Kimani should have concentrated on another principle of law: that the Judiciary must make rulings and judgments capable of being enforced. The Judiciary does not operate in a vacuum and it must always balance the need for justice with the context within which a controversy is litigated before it. However, even this principle would not have applied in the application brought before Judge Ombija by the ICJ-K. 

As Ndung'u Wainaina has demonstrated in the same paper (Attempts to appease Bashir breach various laws, propagate impunity), the Government of Kenya has no legal leg to stand on when balancing the political and diplomatic needs of maintaining friendly relations with Sudan and its legal obligation to comply fully with provisions of the Constitution, the International Crimes Act and the Rome Statute. Britain was faced with this same dilemma when its High Court issued a warrant of arrest for the Israeli Foreign Minister for war crimes committed during Israel's war with Lebanon in 2009. But rather than refuse to honour the direction of the court, the UK government advised Tzipi Livni not to visit Britain and initiated an amendment to its laws to prevent future situations of a similar nature.

Mr Kimani's argument that the three arms of government must always act in concert will undermine the democratic gains that have been made in Kenya since 1992, when section 2A of the former Constitution was repealed and, thereby, returning Kenya to multi-party politics for the first time since 1982. During Kenya's dark days of single-party rule, not only was the party the government and the government the party, but the Legislative and Judicial Branches were subordinate to the Executive; decisions of the latter two were always subject to the pernicious veto power of the Executive as embodied in the whims of the President. Absurd situations frequently arose, such as when the Director of Public Prosecutions could decide the sentence to be handed down by the courts against convicted persons. If Mr Kimani's argument is to be pursued to its logical end, Judge Ombija should have consulted with the Minister for Foreign Affairs to ascertain Kenya's diplomatic interests first before issuing a ruling that would have denied the ICJ-K the orders that it sought by ignoring the clear provisions of the Constitution and the International Crimes Act -- and Kenya's international treaty obligations under the Rome Statute.

It is true that the High Court ruling has complicated the diplomatic situation between Kenya and Sudan, but the solution is not to claw back some of the gains made, especially since 2010. The solution lies in Kenya demonstrating to the world that the rule of law is alive and well in Kenya and that it is prepared to lie in the bed it has made by obeying the provisions of laws it has passed. The alternative would be to invite international ostracisation by ignoring the law and permitting the Executive to act as it pleases, using its monopolistic powers to make decisions that may not be in the best interests of all Kenyans. 

Instead of the Minister for Foreign Affairs declaring that the Executive would not honour the directions of the High Court, the first step should have been the step that it elected to follow later on, that is, appeal the decision and hope that the Court of Appeal or the Supreme Court would reverse the decision of the High Court. This would have sent a powerful message to all Kenyans, and the international community, that the law is supreme in Kenya and that even though the Executive is powerful, it will always live within the boundaries of law and honour its obligations, whether by treaty or under the Constitution. The second step, obviously, would have been to lobby the Legislature to amend the law so that a similar situation would not arise in future. But given the political dynamics at play today, it is not reasonable to conclude that the Executive would be able to achieve a victory in the Legislature in this regard.

Kenya is entering a delicate period in its transition to a presidential government, and ideas like Mr Kimani's are dangerous for they suggest that there still remains a small reactionary element that will subvert constitutional principles that Kenyans have overwhelmingly ratified for petty political gains. It is incumbent upon all right-thinking Kenyans to be vigilant and vocal in protecting the gains made so far in the Second Liberation. Anything less and we will become a laughing stock in the capitals of the world and a pariah in international affairs.

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