Bad economy threatens democracy, rule of law

Western liberal democracy had become universal, as the final form of human government. Prosperity, it was believed would necessarily follow.

But the hubris was premature. Soon western economies would struggle to maintain living standards in the 2000s. India and China on the other hand, were pulling hundreds of millions of people from poverty into the middle class.

By the 2020s, it was clear that poor economic performance was leading to serious challenges to traditional western style democracy.

Mistrust of institutions was increasing, and cost of living protests were taking place in 148 countries. As a result populism is back in fashion.

It picks convenient targets to blame for the stagnation or decline in living standards. Immigration, unfair trade, the rich, other tribes. Take your pick.

All this is putting pressure on the three arms of the State, and the checks and balances between them. Judiciaries, previously thought immune to these troubling trends have not been spared. Frustrated citizens are looking for accountability across all arms of the state, not just among the executives and legislatures.

Judicial officers are finding themselves in unfamiliar territory. There is a cold spreading across the Commonwealth, one senior Commonwealth Lawyers Association (CLA) official told me, the tenure and independence of the judiciary is under attack.

Read:  Politics drowning economics in Kenya

In the Maldives, three justices of the supreme court were suspended after corruption allegations were leveled. Two judges were deemed incompetent, as a way of implementing a law that reduced the number of supreme court judges from seven to five. In Ghana, the chief justice has been removed.

She is challenging her removal in the African Court of Justice. In Kenya, there were unsuccessful moves against the Chief Justice.

In the US, President Trump issued an executive order in February imposing sanctions on the International Criminal Court (ICC) as a whole, and on individuals who cooperate with the Court.

He threatened the individual officers with dire consequences seemingly targeting the chief prosecutor, Mr Karim Khan.

The Latimer House Principles promote separation of powers, as key to how the three arms of the state relate. It is a way to entrench democracy, the rule of law and good governance.

In particular, they restrain the executives from withholding finances to muzzle judiciaries and legislatures, and curtailing their independence. Other key principles are the promotion of human rights, accountable and honest government, the protection of press freedom and public access to information.

All these are necessary to prevent corruption, enhance transparency, and ensure governments are held accountable by their citizens.

Judiciaries are arbiters of disputes and interpret law offering restoration of justice. But unlike the executive and legislatures, whose processes benefit from regular public participation, the Kenyan judiciary has only the limited court users committees.

If the architecture of the western style democratic state is not delivering better living standards, then all three arms of the state are complicit. Some analysts argue however, that executives share the highest responsibility in erosion of trust by the public.

Regular elections offer the citizen an opportunity to take corrective action on executives and legislatures. In the case of the judiciaries however, citizens do not have direct methods of removing non-performers from office. In the US, State and Local Judges are elected.

Like Kenya, judges to Superior Courts are appointed. While the Judicial Service Commission (JSC) can recommend a tribunal to investigate and decide on the removal of a judge, the process appears remote to the ordinary citizen.

In our beloved republic, it has fallen to the executives to instigate purges in the judiciary. There was the radical surgery in 2003 during the Narc era and then the magistrates and judges vetting in 2011.

With the citizen’s role in judging performance limited in the civil service and the judiciary, it is no wonder that politicians are filling the void. Can separation of powers come to the aid of judiciaries?

Ndiritu Muriithi is an economist and partner at Ecocapp Capital.  He is also the chairman of KRA and former governor of Laikipia County. Email: [email protected]