By Javas Bigambo
From a bird’s eye view, the character of a country’s justice system is manifested in the independence, discretion, incorruptibility, and transparency of her judicial officers. They are duty bound to serve the people’s social justice interests, because the Judiciary derives its authority from the people, and exercises it through the courts and tribunals.
The architecture of Kenya’s governance is designed to facilitate separation of powers, as tempered with checks and balances, aimed at achieving balanced national leadership for good governance.
That balance is predicated on the mutual respect and effective operations among the three arms of government, namely, the Executive, Legislature and the Judiciary.
The Judiciary is the only arm that is headed by a non-elected leader, the Chief Justice (CJ), who is also the President of the Supreme Court of Kenya.
Established under Article 163 of the Constitution as the final arbiter and interpreter of the Constitution, the Supreme Court stands tall as Kenya’s apex court, which also boasts the power of original jurisdiction on presidential petitions under Article 140 of the Constitution.
This superior court has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation. Primarily for being the highest court in Kenya, all other courts are bound by its decisions.
Additionally, it renders advisory opinions at the behest of the national government, any state organ, or any county government that requires such guidance in opinion for legislation, or where a lacuna in law necessitates such guidance.
Constitutional democracies are strengthened by strong justice systems that are predicated on independence, integrity, and devoid off political interference. An independent Judiciary guards against the excesses of Executive and the Legislature, the latter may attempt to exert itself through arbitrary legislation that contravene the Constitution. The courts, and most of all the Supreme Court, must not be political impresarios if they have to gain and sustain public confidence.
From this angle, we can conclude that the Judiciary, led by the Supreme Court, is the shield for democracy, for social justice, and for commercial or business confidence among citizens.
New Constitutional dispensation
This has not always been the case in Kenya. In the previous constitutional dispensations before the enactment of the Constitution of Kenya, 2010, the public domain is replete with claims of wanton and brazen interference of the judges’ work and decisions by the Executive, against the transparent interests of social justice.
However, the Constitution introduced vital strands of judicial independence beginning with the establishment of the Judicial Service Commission.
This independent body ensures the independence of the Judiciary and holding it to account. It is responsible for the recruitment of judges through a transparent merit based process and ensuring tenure of service for judges are all constitutionally enforceable. This has encouraged a culture of professionalism and impartiality in judgments, unlike before, where the judges felt indebted to the political appointing authority.
The non-involvement of politicians, including the President, in the recruitment of judges or determination of judicial matters lends wider discretion and liberty to the functioning of the courts. Further, independence is afforded by a balance between constitutional norms, political behavior, and efficacy of judicial officers within the axis of the rule of law’s operation, sustained by ethical militancy.
The non-involvement of politicians, including the President, in the recruitment of judges or determination of judicial matters lends wider discretion and liberty to the functioning of the courts.
Restoring the confidence of justice system
Suitability of judicial officers, and effectiveness of the courts remain a going concern and a matter of public interest in democratic societies. Public confidence, bolstered by open, transparent, and meritorious recruitment of judicial officers, together with timeliness and credible court businesses, plays a crucial card in the justice system.
The Supreme Court must be constituted and led by persons of impeccable credentials and character, and that decisions of the courts, must be revered. Impressively, thus far, the operations of Kenya’s Supreme Court have not been warped by or yielded to political pressure. The apex court has observably continued to discharge its duties with impartiality and crispness of jurisprudential thought.
During his tenure as CJ, Justice David Maraga has made demonstrable effort to steer the Judiciary as an independent institution and strengthen the judicial system. Two special events stand out for his legacy.
A brave historical event such as the Supreme Court decision in the 2017 petition against the re-election of Uhuru Kenyatta as President as announced by the Independent Election and Boundaries Commission (IEBC) chagrined the political ruling class, and was settled as an extraordinary landmark judgment on the African continent for its unrivaled chutzpah.
In modern functional democracies, effective electoral dispute resolution is key to preventing violence and ensuring the legitimacy of electoral results. Democracy is strengthened by rules, procedures, and adjudication mechanisms. Electoral dispute resolutions are dependent on a competent judiciary.
The other is when in September 2020, pursuant to six petitions and on the strength of Article 261(7), Maraga advised the President to dissolve parliament for its failure to enact a law providing for two-thirds gender rule. This was a first in Kenya’s history and such bold decisions require an independent judicial space.
These two events, together with the construction of 25 new courthouses and efforts to reduce backlog of cases that initially numbered hundreds of thousands spanning decades, crown Justice Maraga’s legacy profile.
However, beyond the admiration that the Supreme Court and the judiciary has attracted with those two events, they have also attracted scorn and retribution from the political class, and as such judicial independence comes with the curse of political scorn.
Incoming Chief Justice
As CJ Maraga retires in January 2021, his courage and steadfastness, qualifies him as an audacious defender of the Judiciary and a believer in the real separation of powers. The next CJ should keep the flag of public confidence hoisted, and steer a Judiciary that is less intimidated by political forces or interests.
The CJ should take professional ethics and temerity of judicial officers to new levels, by continuing the push for the establishment of the Judiciary Consolidated Fund is in place. Article 173 of the constitution establishes the financial independence of Judiciary by establishing a Judiciary Fund that will be used for administrative expenses and other necessary for the discharge of the functions of Judiciary.
Further, working jointly with the Attorney General, ensure that the witness protection mechanism in Kenya is foolproof and properly financed. Each of the 47 counties should have a witness protection facility and mechanism, granted the requisite discretion.
The other vital expectation to be handled by the next CJ is the proper and effective digitization of the case management system by the Judiciary, especially the e-filing system, which presently remains a nightmare. CJ Maraga has notably set rolling the ball of digitization, but it is encumbered with technical and attendant material challenges that will have to be overcome.
The recent past has seen violation of court decisions. Disregard for the law or court decisions naturally casts dark shadows on good governance. It will be extremely crucial for the next CJ to ensure that court decisions are respected and honoured by all, including the Executive arm of government.
Conceivably, the Judiciary should have a special arm of enforcement security officers, well facilitated, to guarantee enforceability of various court decisions. The Supreme Court, therefore, should be and remain the towering city upon the hill of justice in Kenya.
Mr. Bigambo is a political scientist and lawyer, working as the Managing Consultant at Interthoughts Consulting.