Judiciary Under Siege

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That the President acknowledges judicial tyranny and impunity as major impediments

to the realization of justice and the rule of law is adequate. It is an open secret in the public

domain. Granted, the President is an equal shareholder in this country and reserves the right to

his own opinion as well as ‘a fair hearing.’ However, publicly chastising elements within one

arm of government by another and threatening them with quasi-judicial actions in response to

their judgements in the absence of solid incriminating evidence is totally reckless and uncouth.

It altogether nullifies the President’s averment that he recognizes the independence of the

Judiciary and the significance of the rule of law. It elevates him to becoming a law unto himself

and betrays his solemn promise to uphold the spirit and the letter of the 2010 Constitution at

his swearing in.

The Presidency is the highest office in the land, mandated with performing the functions

of Commander in Chief of the Defence forces as well as leading the Executive. Even though

the office lends immunity against civil and criminal suits to the holder, the President remains

a state officer and is confined to act in accordance with the provisions of article 73(a)(ii). In

promising to ‘deal ‘with judicial tyrants, the President disrespects the place of judges in Kenya

and demeans the position of the judiciary as a ‘co-equal’ arm of the government. It is not clear

how the executive arm of the government plans to ‘deal ‘with elements within the judicial arm

of government as this is not envisioned in the 2010 Constitution. The Constitution does not

institute a leeway for the executive arm of government to ‘deal’ with the judicial arm of the

government or elements therein. Instead, by creating the Judicial Service Commission as an

independent and autonomous body corporate, the framers of the constitution aimed to create a

legal path via which disciplinary measures could be taken and issues resolved.

Under 131(1)(e), the President is expected to ensure protection of human rights,

fundamental freedoms and the rule of law. Among the fundamental tenets of the rule of law is

the principle of separation of powers and judicial independence and autonomy. The

Constitution does not give the President the power to ‘deal’ with rogue judicial officers who

rule against government projects and policy issues. Article 159(2)(a) affirms the words of the

national anthem that ‘justice should be done to all irrespective of status.’ The Government

stands in court as a citizen equal to all other citizens of Kenya – a body corporate. Due process

must therefore be followed to the latter irrespective of the matter at hand. Thus, the idea of

instituting special courts to deal with cases that touch on government policy issues – as was the

supposition by the President’s point-men – is inexcusable. Moreover, it is an act of injustice in

the sense that it negates the need to solve the perennial problem of burgeoning court cases and

affords the judiciary an opportunity to get away with delayed justice which goes against article

159(2)(b) of the Constitution.

As a citizen of this country, the President has the power to gather evidence and level a

suit against any corrupt judge and such a judge can be removed from office vide article 75(2)(a)

and 75(2)(b). The President can petition the Judicial Service Commission – through the

Attorney General who sits in both Cabinet and the JSC – and bring charges against rogue judges

that are bent towards impunity and corruption. None of these procedures involves publicly

declaring war on a co-equal arm of government. Furthermore, the President can rest easy

because article 75(3) bars any state officer found to have acted in contravention of the

Constitution from holding any other state office.

Suffice to say, a sitting President cannot purport to head the Executive and ‘deal ‘with

rogue officers in the Judiciary in the same breath unless such a President is leaning towards

draconian and dictatorial tendencies. Borrowing a leaf from the harrowing despotic and

barbaric experience with the independence constitution, the framers of the 2010 Constitution

succinctly outlined tenets to ensure strict independence and autonomy of the Judiciary. The

Independence Constitution relegated the Judiciary to a mere department of the Executive arm

of government and had judges making rulings at the behest of the Presidency. Although the

three arms remain interdependent in the performance of their duties, their roles are clearly spelt

out and defined from each other. The principle of equity that the 2010 Constitution lends to the

three arms of government forced for the Executive to submit to the Supreme Court’s

nullification of the 2017 Presidential election – a matter that was previously impossible to

envisage. Article 160(1) ensures the Judiciary is under the control of no person or authority.

Therefore, not even the President can purport to influence outcomes in court cases.

Article 168(1)(e) of the 2010 Constitution provides for the removal of a judge from

office on the grounds of gross misconduct. Furthermore, the constitution ensures judicial

autonomy by instituting article 168(2) which expressly provides that the removal of a judge

from office may only be initiated by the Judicial Service Commission acting on its own motion

or on petition by any person – including the President of the Republic of Kenya. Therefore, the

avenue of instilling discipline among judges is rather succinct and does not make room for

quasi-judicial action by any other arm as these would be deemed as violation of the judge’s

rights. Such a removal requires that the petitioner sets out the grounds for removal of the said

judge. A tribunal is formed to look into the matter and the judge is either removed or reinstated

depending on recommendation of the tribunal. In the spirit of the separation of powers, the

constitution under article 168(9) binds the President to act in accordance with the

recommendations of the tribunal and not otherwise.

Perhaps a matter of interest in the President’s speech is how the Judiciary comes into

existence altogether. Kenya is a creation of the Constitution. Judicial officers in Kenya are

appointed and not elected based on popular vote. Some of the parameters used in their

appointments include their academic qualifications, judicial experience and their personal

conduct in how they carry out their duties. On the contrary, both the Executive and the

Legislature in Kenya contains elements of people elected based on popular vote. This is to say,

the Judiciary is the last port of call in this country, required to restore order and sanity and

balance the other two arms of government whenever they go berserk in performing their

functions. The Supreme Court, for instance, is given the power to be the last court of appeal

understanding full well that appeal processes can carry on indefinitely. This court is given the

power to grind such indefinite processes to a halt and in doing so, restore order and sanity in

the society. Different from this, the Executive arm does not enjoy such infinite power when it

comes to the function of ratifying bills into laws. Failure to sign a bill into a law, the bill

automatically becomes law after 14 days of waiting even without the seal of the Head of State.

Judiciary as a standalone arm of government has no teeth that it can bite. It relies on the

executive arm that houses the police machinery and the military to enforce its orders and

directives. The Judiciary in Kenya has saliently remained the foster child relying on the

gracious kindness of the Legislature to allocate barely sufficient funds and the goodwill of the

Executive to implement its directives. Suffice to say, one would like to think that the Judiciary

is a co-equal in the politics of arms of government but with barely any power to sustain its

existence, judicial independence remains mere colourful literature in the all-too-ambitious

Constitution of Kenya, 2010. This is similar to the statutory two thirds gender rule whose

implementation remains to be seen. The two thirds gender rule was a matter of contention that

led the former Chief Justice David Maraga to issue an advisory to the President – Uhuru

Kenyatta – to dissolve parliament; a matter that went ignored by the Executive.

In conclusion, in the matters of interpretation of law, determination of fact and the

administration of Justice, the Judiciary stands supreme above all three arms of government in

Kenya to ensure accurate and precise interpretation of the law. It is highly undesirable that the

maker of a law be the interpreter and executor of the same law. Human nature will always

incline any such individual to operate outside the confines of such law, if unfavourable. In view

of this, the framers of the 2010 Constitution put such obvious safeguards as article 116(3) that

defers the effect of legislations that confer a direct pecuniary interest on Members of Parliament

until the next general election. A departure from judicial independence means inviting chaos.

Like the Bill of rights, judicial independence must exist unconditionally.

Meldrick Sakani is a first year student at the University of Nairobi School of Law.