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Legal positivism, judicial decisions and fiscal policy implications: the 30th November, 2021 approval of the 2022 budget 

By: Prof. John Gatsi

There exist plethora of legal research findings indicating that judicial decisions are dominantly influenced by legal positivism paradigm or jurisprudential school of thought. A judge or the judiciary is at the heart of enforcing and applying  the law , therefore, the judge ‘s jurisprudential leaning is very important in deciding on a case.

It was Montesquieu who eloquently explained that a judge or judicial panel is “the mouth of the law and the judge’s only role is to apply the law”. In the corridors of positivism, the written law is complete and comprehensive and does not need any external assistance such as historical, moral nor sociological developments to deliver justice. The positivists jurists believe in applying the written law as it is the purest form of justice. In this paradigm, the judge is variously described as mechanical, strict user of the law and a prisoner of the law to achieve the so called legal certainty .  Irrespective of the jurisprudential school of thought, Constitutional experts describe the Supreme Court as the court of policy . Meaning judicial decisions may reflect policy orientation of judges.

If laws are made to correct history, to address social and human development, then legal realism should be the friend of justice. In many cases where the dogma of positivism influence public interest, political and developmental issues, the public reacts negatively to judicial decisions because the justice  thought to have been served may create instability or the matter being addressed, was not addressed satisfactorily per public assessment.

Sometimes positivism produces judicial decisions  that negatively affect private investments by citizens and foreigners creating risky investment environment with long lasting painful investor experiences. In the  Exton Cubic case for example Article 268 of the 1992 Constitution was interpreted as though , it is the private investor who is expected to seek for parliamentary approval of the grant of mineral concessions. When this should have been the duty of the institution and ministry involved. If that is the case , then citizens can go to court to seek interpretation that per Article 174 Parliament did not approve the request to discontinue collection of fees at the various toll both before it was applied. It also means citizens can seek the interpretation of the court to the effect that the petroleum revenue management law does not allow the use of petroleum revenue in payment of fees but to physical infrastructure in education. Also , per article 181 of the Constitution and section 56 of the public financial management Act, prior approval must be received before issuing bonds to ensure those transactions are declared null and void.

The judgment regarding the issue of whether or not a deputy speaker  of parliament presiding can vote, the Supreme Court Justices concluded that the 138 members on the majority side including deputy speaker presiding  who voted to approve the 2022 budget was valid.  The implication is that the E-levy was passed on 30th November 2021. It also means the 2022 budget was fully approved. Thus,  all the division, parliamentary disunity and possible erosion of cooperation is not the concern of the positivists.  The law  must be interpreted to throw its light of peace, stability and tentacles to shape public policy.  The fathers of separation of powers  preached independence of the organs of government to ensure  congruence of effort in the interest of the state.  The public cannot see unity among the organs of government. There is bruised relationship created between parliament and the judiciary given the comments attributed to parliamentarians. Now there is no need for consensus building in parliament and consultations with the public because because the public may consider the development unfortunate The cost of the atmosphere created by this decision , is much more than the  short term fiscal benefits. Winner takes all will return to parliament if a party wins majority with its negative outcomes. At another time l will deal with the implications and concerns if majority of rulings of the courts reflect policy orientation of the government or the opposition.  I do not intend to question why in the 2020 election petition, the Supreme Court stated the EC is an independent institution so cannot intervene. The citation of the constitutional authority to interpretation granted to the apex court is not meant to easily interfere with the almost 30years of self regulation without establishing stringent conditions that must exist to allow the judiciary to take steps to resolve challenges that parliament cannot ordinarily resolve .

Positivists ayeeko . Legal realism we love to see your work in matters that have effects on policy.

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