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{
    "id": 499703,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/499703/?format=api",
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    "content": "even county assemblies, if for example there is a procurement process that has not followed due process. Any court of law can injunct this House, the National Assembly or a county assembly if, for example, there are recruitment processes or human resource issues that have not complied with the law. Courts can declare legislation illegal and unconstitutional. They can. However, that mandate ends at declaring. They cannot even force Parliament to enact what they think is the correct law or repeal. They can strike down a law or say it is unconstitutional but they cannot say how the law should be like. What is so hard with our courts to defer legislative functions to the legislature; the same way we have concisely and in a law abiding manner deferred judicial functions to courts of law? Do they imagine that they are the superior arm of Government? This is far from it. Time will fail me to demonstrate that Parliament is the superior arm of Government because it is elected directly by the people. The other arms of Government may have legitimacy from the people. However, it is not direct but secondary. What I see as the next case scenario is that one of these days, somebody from the streets will go to court and say that the National Assembly and the Senate are on recess, as we are going on recess soon – but will want an injuction to stop them from resuming business so that they stay at home until the case is heard and determined. Technically, that is what we are looking at. This is inconceivable. It is a coup. It is overthrowing the Constitution. We want to send a message to our colleagues, the judges, that the Judiciary is not above the Constitution. The system of checks and balances protects and empowers all the three arms of Government to check on one another. That is basic constitutional theory. There cannot be one institution that supervises everybody like little boys. Our Constitution and, indeed, all the constitutions of democratic states are modeled on a Doctrine of Separation of Powers which was first initiated by a French Philosopher called Montesquieu. Montesquieu argued in Constitutional Law made Simple that any man or institution invested with power has the natural tendency to extend that power as far as it can go. That is how we are created naturally. If you invest power in a person or institution, the tendency would be to take that power as far as it can go. Therefore, to have harmony in society, the three arms of Government are created to act as checks and balances on one another. There is a terrain where the Judiciary cannot intrude. There is a core area in the functioning of the legislature that the Judiciary cannot intrude. This is the same way that there is a core area in the exercise of judicial functions that the legislature cannot intrude. As I wind up, I want to illustrate a paradoxical event that took place in this country but went unnoticed by many commentators, including myself. The same Judiciary that wants to treat the National Assembly, the Senate and county assemblies as parastatal boards is the same one, through courts, saying that it can injunct us, paralyse our work and send us home until some case filed by some busybody is completed after ten years. The same court, recently, invited a number of our colleagues, commissioners in the Judicial Service Commission, including the Chief Justice, not as the Chief Justice but The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate."
}