A well argued and balanced piece here:
http://www.nation.co.ke/...-/10plbkkz/-/index.html Parliament makes laws,but has no mandate to interpret them
By PETER MWAURA Friday,September 11 2009 at 16:23
During the parliamentary debate on Tuesday over the reappointment of Mr Justice Aaron Ringera as the director of the Kenya Anti-Corruption Commission,Gachoka MP Mutava Musyimi said: 'We have been at the mercy of the Executive and that of the Judiciary for a very long time. Unless this honourable House claims its space,this country has no future.'
A figure of speech,perhaps,in which the Rev Musyimi used exaggeration for effect. But his claim is certainly untrue.
In recent times,Parliament has metamorphosed from the lapdog of the Kenyatta and Moi regimes to a bulldog of the Kibaki era. Parliament now behaves as if it was the sovereign — superior to the other two arms of government. MPs REFUSE TO DO THE EXECUTIVE’S bidding and,for good measure,even refuse to pay taxes.
They have set up their own service commission. Contrary to what the Rev Musyimi said,the danger is that this country is tottering towards 'parliamentary dictatorship' as its clerics — the Ufungamano (a joint forum of religious organisations) — warned in a memorandum presented to Prime Minister Raila Odinga on June 4,this year.
For democratic governance,the three arms of government should operate in their jurisdictions without one overriding the other. In the current controversy,there is a present and clear danger that Parliament looks like it is disregarding the principle of the separation of powers. Parliament has no business interpreting the laws it makes,as it has tried to do in its debate on the reappointment of Mr Ringera. The construction or interpretation of statues belongs to the Judiciary,not Parliament. Once a statute is passed,it ceases to be the property of Parliament and acquires a life of its own,controlled only by the courts of law,which have the constitutional right and duty to review,interpret and apply the law as they understand it. The courts can even invalidate a statute by striking it down as unconstitutional.
If Parliament is unhappy with the way the provisions of the Anti-Corruption and Economic Crimes Act 2003 were interpreted in reappointing Mr Ringera the only recourse it has is amending the statute. It cannot rightly pretend to issue fiats. If it did,that would be tantamount to taking over the role of the Judiciary and rubbishing the whole concept of the separation of powers. And if that happened,then,contrary to what the Rev Musyimi said in Parliament,we would be saying goodbye to the rule of law.
Parliament,in fact,is partly to blame for the present controversy. It passed a law that could be interpreted the way it was interpreted by the Executive,ie. reappointment did not require the process involved in the initial appointment. Granted,perfect drafting is impossible,but Parliament has a duty to make laws using such a language that those who apply it have no room,or little room,to misrepresent its original intention or purpose. Good laws must be unambiguous,clear and unequivocal,as much as is linguistically possible. AND WHEN THE LAWS ARE AMBIGUOUS or capable of different interpretations,Parliament should go back to the drawing board and amend them.
But even more importantly,MPs should be aware of the universally accepted canons or rules used by the courts in interpreting statutes so that they can take them into account when legislating the laws,so as to avoid absurd results in the interpretation.
There are many rules that the courts use in construction,including the Mischief Rule (what was Parliament trying to cure?),the Golden Rule (the overall content of the document) and the Literal Rule (ordinary meaning of the language used). But the cardinal canon of construction used by the courts is the Literal Rule — that the text of the statute is read as it is written,using the ordinary meaning of the words of the statute.
The courts presume that Parliament says in a statute what it means and means in a statute what it says there.