Assessing Judicial Review in the domain of National Security
Abstract
Under Chapter Fourteen of the Constitution, the government has an obligation
to protect its people, their rights, freedoms, property, peace, stability and
prosperity and other national interests. However, some of the strategies
employed by the Executive in meeting the obligation to protect have been
incompatible with fundamental constitutional principles and the rule of law.
Judicial review of such executive strategies in matters of national security has
presented a challenge whenever courts have had to balance the need to protect
national security on the one hand and the enforcement of constitutionally
enshrined rights of the citizen on the other, within the framework of the
obligation to protect. The challenge arises because there is no judicial nor
statutory framework for judicial review of national security functions by the
Executive.
The common argument that certain aspects of executive conduct while ensuring
national security are non justiciable and not amenable to judicial review is
analysed and debunked with a finding that national security like other
constitutional functions of government is justiciable and a contrary stand would
go against Rule of Law. The thesis argues that in a constitutional supremacy
regime, judicial review remains central to the doctrine of Rule of Law even as it
appreciates executive institutional competence in matters of national security.
While arguing that the imprecise scope of executive authority contributes to the
problems that manifest in judicial review of executive conduct in matters of
national security, the thesis advocates for a more precise delineation of the
margins of executive authority to guide courts on justiciable and non justiciable
executive conduct. This would settle once and for all justiciability concerns
which frequently arise in judicial review of executive conduct in matters of
national security.
A case study of the Security Laws (Amendment) Act No 19 of 2014 illustrates the
challenges of balancing executive authority on one hand and constitutionally
enshrined rights on the other in the absence of an established constitutional,
statutory and judicial framework. The court struck out sections of legislation
that would empower the executive to limit certain constitutional rights to ensure
national security. The case illustrates that friction between the Judiciary and the
executive would be less if there existed a framework for judicial review of national
security matters.
The thesis as well advances the proposition that the Constitution has introduced
a new order in Article 24(4) under which limitation of rights in cases where
national security concerns arise must be objectively justifiable. This supports
the argument that the judiciary in ensuring Rule of Law has the constitutional
mandate to interpret the Constitution which is the supreme law.
The thesis argues that it would be proper that courts whenever faced with having
to review executive conduct should have constitutional, statutory or judicial
guidelines that help to strike an appropriate balance between individual human
rights and the executive imperative to ensure national security. In the absence
of such guidelines, courts have largely made ad hoc and inconsistent decisions
that have failed to appreciate Article 24(1) and other opportunities presented by
the Constitution.
This thesis ultimately justifies judicial review of executive conduct in matters of
national security as superceeding executive plea of non justiciability when it
explains how the Judiciary derives its democratic legitimacy from the people
through the Constitution, how executive output may not always be legitimate
and therefore invite the judiciary to intervene and enforce legitimacy. In
proffering a solution to the lacuna of a missing framework for judicial review, the
thesis advances the proposition and suggests how Article 24 of the Constitution
presents an opportunity to innovatively develop a framework which courts may
adopt in judicial review.
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
- School of Law [291]
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