scholarly journals An Inquiry into the Limits of Judicial Intervention in the Impeachment Process of Governors in Kenya

2020 ◽  
Vol 5 (1) ◽  
pp. 139-156
Author(s):  
Andrea Munyao
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
The Other ◽  
County Government ◽  
Judicial Intervention ◽  
The Supreme Court ◽  
Problematic Issue ◽  
Duty To Protect ◽  
The One

Article 181(2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a county governor. This has been realised through the County Government Act, Section 33. Section 33 recognises the County Assembly and the Senate as the bodies responsible for this process. However, the County Government Act fails to address at what point the courts can intervene in the impeachment process of governors. This is often a problematic issue as the doctrine of separation of powers requires each arm of government to perform their functions independently. Nonetheless, Kenyan courts have the duty to protect aggrieved parties whenever their rights are threatened. However, the point at which they can intervene is not stated under any law and this creates confusion between the role of courts of law in the impeachment process, on the one hand, and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. This paper, therefore, seeks to address this confusion through a critique of the Wambora case, a case that was appealed up to the Supreme Court. The paper also suggests a complimentary system whereby the Senate, County Assembly and the courts can work in harmony, and, do away with the confusion.

ABSTENTION AT THE BORDER

2018 ◽  
Author(s):  
Maggie Gardner
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Federal Courts ◽  
The Other ◽  
Judicial Discretion ◽  
Cross Border ◽  
The Supreme Court ◽  
Judicial Error ◽  
Hard Cases

The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.

scholarly journals ENTRE O ATIVISMO E (IN) OPERÂNCIA LEGISLATIVA: DELIBERAÇÃO E LEGITIMIDADE DAS DECISÕES DO SUPREMO TRIBUNAL FEDERAL EM SEDE DE CONTROLE DE CONSTITUCIONALIDADE EM UM CONTEXTO DE NOVOS ARRANJOS INSTITUCIONAIS E DE REVISÃO DA TEORIA DA SEPARAÇÃO DOS PODERES

2014 ◽  
pp. 104
Author(s):  
Bruno Denis Vale Castro ◽  
Paulo Roberto Barbosa Ramos
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Institutional Arrangements ◽  
Judicial Activism ◽  
Revision Theory ◽  
The Supreme Court ◽  
The Creation ◽  
New Devices

O presente artigo se propõe a analisar a deliberação interna e legitimidade das decisões do Supremo Tribunal Federal em sede de Controle de Constitucionalidade, observada uma conjuntura de revisão da Teoria da Separação dos Poderes e necessidade de criação de novos arranjos institucionais. Neste aspecto, tem-se como objetivo geral repensar o papel do Supremo Tribunal Federal em um modelo de controle de constitucionalidade, bem como sua legitimidade, justificação de suas decisões e deliberação interna, superando a dicotomia ativismo judicial/ deferência ao legislativo, tendo em vista a necessidade de readequação da Teoria da Separação dos Poderes, de modo que se leve a Constituição a sério e se responda ao anseio de desenvolvimento democrático-social brasileiro.Por fim, considera-se que a necessidade de que algum órgão delibere em sede de controle de constitucionalidade não significa que esta deva ser permanente ou que não possa haver alguma espécie de diálogo entre os poderes, concebendo assim, que Supremo Tribunal Federal não detém o monopólio da guarda da Constituição, havendo a possibilidade de um papel mais protagonista do legislativo, a partir da utilização dos mecanismos já existentes ou mesmo da criação de novos dispositivos que permitam diálogos institucionais.Palavras-chave: Ativismo judicial. Diálogos institucionais. Controle de constitucionalidadeBETWEEN THE ACTIVISM AND LEGISLATIVE (IN) EFFICIENY: DELIBERATION AND LEGITIMACY OF DECISIONS OF THE SUPREME COURT IN OFFICE OF JUDICIAL REVIEW IN THE CONTEXT OF NEW INSTITUTIONAL ARRANGEMENTS AND REVIEW OF THE THEORY OF SEPARATION OF POWERSABSTRACT: This article aims to analyze the internal deliberation and legitimacy of decisions of the Supreme Court in place of Judicial Review, observed a conjuncture Revision Theory of Separation of Powers and the need to create new institutional arrangements. In this respect, it has the general objective to rethink the role of the Supreme Court in a model of judicial review, as well as its legitimacy, justification of their decisions and internal deliberation, overcoming the dichotomy judicial activism /deference to the legislature, with a view the need to readjust the Theory of Separation of Powers, so that light the Constitution seriously and respond to the yearning of Brazilian democratic and social de-velopment. Finally, it is considered that the need for some body deliberates on seat of judicial review does not mean that it must be permanent or may not be some sort of dialogue between the powers, conceived so that the Supreme Court does not hold monopoly of safeguarding the Constitution , with the possibility of a more protagonist role of the legislature, from the use of existing or even the creation of new devices that allow institutional dialogue mechanisms.KEYWORDS: Judicial activism. Institutional dialogues. Judicial review.ENTRE EL ACTIVISMO Y LA (IN) OPERANCIA LEGISLATIVA: DELIBERACIÓN Y LA LEGITIMIDAD DE LAS DECISIONES DE LA CORTE SUPREMA EN LA SEDE DE CONTROL DE CONSTITUCIONALIDAD, EN UN CONTEXTO DE NUEVOS ARREGLOS INSTITUCIONALES Y LA REVISIÓN DE LA TEORÍA DE LA SEPARACIÓN DE PODERESRESUMEN: El articulo intenta analizar la deliberación interna y la legitimidad de las decisiones del Supremo Tribunal Federal en sede de Control de Constitucionalidad, observada una coyuntura de revisión de la Teoría de la Separa-ción de los Poderes y la necesidad de creación de nuevas relaciones institucionales. En ese aspecto, tiene como objetivo general pensar de otra forma el papel del Supremo Tribunal Federal en un modelo de control de constitu-cionalidad, y también su legitimidad, justificación de sus decisiones y deliberación interna, con la superación de la dicotomía activismo judicial/deferencia al legislativo, teniendo en vista la necesidad de readecuación de la Teoría de la Separación de los Poderes, de forma que se lleve a Constitución en serio y se presenta una respuesta a los deseos de desarrollo democrático-social brasileño. Al final, tiene en consideración la necesidad de que algún órgano delibere en sede de control de constitucionalidad no significa que este debe ser permanente o que no pueda haber alguna suerte de dialogo entre los poderes, concibiendo así, que el Supremo Tribunal Federal no detiene el mono-polio de la guardia de la constitución, habiendo la posibilidad de un papel más protagonista do legislativo, a partir de la utilización de los mecanismos ya existentes o mismo de la creación de nuevos dispositivos que vengan a permitir diálogos institucionales.PALABRAS CLAVE: Activismo judicial. Diálogos institucionales. Control de constitucionalidad

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

scholarly journals AUCTION SALES “SUBJECT TO CONFIRMATION” AND FORMATION OF CONTRACTS Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd 2009 2 SA 504 (SCA)

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Henk Delport
Keyword(s):  
Supreme Court ◽  
Standard Form ◽  
The Other ◽  
Small Farms ◽  
The Supreme Court ◽  
The One

The Supreme Court of Appeal’s judgment in Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd (2009 2 SA 504 (SCA) (“Withok”)) raises two important issues for property practitioners, the one relating to auction sales and the other to the formation of contracts. The dispute arose largely because of a badly drafted agreement of sale document, but the import of the judgment is such that it may be prudent for practitioners to revisit even their well-drafted standard form sale and lease documents. The facts were straightforward. Certain properties owned by the first and second appellants (“the sellers”) were put up for sale at a public auction on 13 June 2006. The respondent, represented by one A, put in the highest bid, which the auctioneer accepted. Both A and the auctioneer signed a document entitled “Agreement and Conditions of Sale” (“the conditions of sale”), which set out the conditions relating to the auction. On 20 June 2006 the sellers’ representative confirmed the sale in writing by adding his signature in the allotted space on the final page of the document. However, the confirmation of the sale was not communicated to the respondent within the time contemplated in clause 1. In fact, the respondent did not receive notice of the confirmation until some time early in July 2006.The respondent did not wish to be bound by the sale and in due course applied for an order declaring the agreement to be of no force and effect. Its case was that the confirmation of the sale had not been communicated to it within the seven-day period contemplated in clause 1 of the conditions of sale, with the result that no agreement came into existence. The sellers, in turn, contended that the conditions of sale signed by the respondent and the auctioneer at the time of the auction constituted an agreement of salesubject to a suspensive condition, namely the confirmation of the sale by the sellers; the condition was fulfilled immediately upon the confirmation of the sale and without any need for it to be communicated to the respondent. The only issue in dispute was whether or not the confirmation of the sale had to be communicated to the respondent within the seven-day period.

scholarly journals District Land Office Purworejo Role in Efforts To Solve Grants Dispute (Case 32 / Pdt.G / 2018 / PN. Pwr)

Jurnal Akta ◽  
2019 ◽  
Vol 6 (3) ◽  
pp. 461
Author(s):  
Bayun Kismantoro ◽  
Akhmad Khisni
Keyword(s):  
Data Analysis ◽  
Supreme Court ◽  
Strong Evidence ◽  
The Other ◽  
Legal Research ◽  
Land Disputes ◽  
The Supreme Court

The number of disputes in Purworejo regency, especially in the area of land would make the authors interested in examining disputes and conduct research on the consideration of the judges through decisions that have been stated. Land disputes, is anything that causes disagreements, discord or strife. Dispute is a continuation of the conflict, and the conflict itself is a dispute between two parties, but the dispute was only buried and can not be shown and when the dispute was notified to the other party will be disputed. The problems of this study are 1) How Purworejo District Land Office Role In Resolving Grants Disputes Efforts In Case No.32 / Pdt.G / 2018 / PN.Pwr, 2) How Consideration Judge In Case No.32 / Pdt.G / 2018 / PN.Pwr About Grant Dispute.This research used normative juridical approach (normative legal research) so called because this research is the study of literature. This study uses a basic decision No.32 / Pdt.G / 2018 / PN.Pwr. Normative research that discusses the doctrines or principles in jurisprudence. The results of this study show that, 1) Role of the District Land Office Purworejo In Effort Resolving Disputes Grant In Case No.32 / Pdt.G / 2018 / PN.Pwr rolegive evidence in the trial to support the strong evidence. 2) Consideration Judge In Case No.32 / Pdt.G / 2018 / PN.Pwr About Grant Dispute. Judge offers mediation in accordance initial steps of the Supreme Court Regulation No. 1 of 2016.Based on the results of data analysis concluded that give evidence in the trial to support the strong evidence in case of Grant Disputes from the District Land Office Purworejo, consideration of the judge that the plaintiff has successfully refute the arguments of gugatanya partly in what he demanded from the gugatanya. Then the judges verdict. Suggestions for Purworejo Land Office Hopes to be more careful in the process of registration certificates andSense of justice is extremely important for the judge to impose any decision.Keywords: Land Office; Legal Dispute; Grant. 

scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

scholarly journals Réforme des tribunaux administratifs et contrôle judiciaire: les inconsistances et les hésitations du Rapport Ouellette

2005 ◽  
Vol 29 (3) ◽  
pp. 761-773
Author(s):  
Patrice Garant
Keyword(s):  
New Brunswick ◽  
Supreme Court ◽  
Administrative Law ◽  
The Other ◽  
Control Data ◽  
The Supreme Court ◽  
Statutory Protection ◽  
Jurisdictional Control ◽  
The One

Are privative clauses useless in contemporaneous Administrative Law ? That is what the Report of Groupe de travail sur les tribunaux administratifs presided by professor Yves Ouellette appears to assume when it recommends their abolishment to Quebec legislators. Privative clauses are statutory protection given to administrative tribunals against any judicial interference, except in the cases of want or excess of juridiction. Since the Alliance case in 1953 it has been held that superior courts cannot be deprived of their supervisory jurisdiction on jurisdictional errors of law or fact ; a full privative clause would even be unconstitutional since Crevier in 1982. More recently, in New Brunswick Liquor Corporation and in Control Data, the Supreme Court specified that jurisdictional control extends to pattently unreasonable intrajurisdictional errors of law or fact. Nevertheless, the Superior Court cannot get involved in the review of any other question of law or fact in the presence of a privative clause. That is the very reason of the enactment of such a clause as the Supreme Court recalls in Control Data. Otherwise the control of the Superior Court extends to all aspects of legality. The Ouellette Report favours on the one hand, the autonomy of Administrative Tribunals; and on the other, it recommends a more extensive control by the Courts... Not easy to reconcile !

Penological Justifications as Sentencing Factors in Death Penalty Sentencing

2021 ◽  
pp. 227740172097285
Author(s):  
Anup Surendranath ◽  
Neetika Vishwanath ◽  
Preeti Pratishruti Dash
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The Other ◽  
Death Sentence ◽  
Life Imprisonment ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The One ◽  
Core Framework

When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

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