We are superior.

At this juncture, it would be a detrimental oversight to not point out the undemocratic character of the Court’s decision. Not in the decision itself, but in negating the will of the people as manifested by the legislature in passing the bill. The legislature as an elected organ of government, is simply more legitimate, egalitarian and participatory than appointed judges. In overruling the actions of elected officials, the court frustrates the intentions of a democratic government. ~ Judges not helping in efforts to counter terrorism, njeri.unedited

I saw this and I was floored. I do not know if the author remembers the violence with which the vote on the Security Laws (Amendment) Bill, 2014, was made. The violence became the subject of litigation and hearings by the Powers and Privileges Committee of the National Assembly. That vote was not the "will of the people" nor was it the "intentions of a democratic government."

When the President assented to the Bill, and because of the violence that accompanied its enactment by Parliament, it was reasonable that the amendments would be challenged in the law courts. Judges are unelected, it is true, but the era of judicial dictatorships ended when the Constitution was promulgated in August 2010. The High Court did what it was required to do under the Constitution. It is not the Judiciary's fault that the national Executive could not defend the rationale for the amendments. It is instructive to note that not all the amendments were invalidated by the High Court, just the more anti-democratic ones.

Parliament and the Executive do not enjoy more legitimacy, are not more egalitarian or more participatory simply because members of Parliament and the President or Deputy President are elected. After all, it is Parliament that approves the appointments of the Chief Justice and Deputy Chief Justice, and it is Parliament that enacted the law on the process that would be followed in the appointment of other judges, including the judges of the High Court. If Parliament's enactment of the Security Laws (Amendment) Act was a legitimate act, it follows too that the Judicial Service Act was a legitimate act.

Secondly, it is the Constitution that determines the extent of what one arm of government can do. The logic behind the separation of powers is now moot; no man can be a judge in his own cause and similarly, Parliament cannot determine the legitimacy of the laws it makes. That is the preserve of the Judiciary and we, the people, exercising our sovereign authority under Article 1, have empowered the Judiciary to strike down laws that offend our constitutional freedoms and rights.

Finally, democratic government cannot be a parliamentary dictatorship. The system of checks and balances in our constitutional scheme require that where there is doubt, one arm of government will check the excesses of the others. In this way, Parliament cannot collect the revenue it allocates through an Appropriations Bill, the Executive cannot enact the Bills that it assents to, nor the Judiciary enact the laws it interprets. None can function effectively - or democratically - without the other.

There is one other thing that the author ignored: Parliament is not egalitarian. Its members may consider each other as equals, but as an institution, it behaves as if it is superior to the voters who elected its members. It allocates substantial public funds to the comforts and safety of its members while millions are at risk of starvation because of badly managed drought mitigation, and thousands are at risk of being murdered by terrorists. Before we can prescribe solutions to the challenges that face us, it is necessary to be honest about what the institutions we have mean to us and, crucially, what they mean to each other. Parliament believes it is superior. It is not. It is time we reminded it that the Constitution is superior to it and the people superior to all of them.