Safeguarding Judicial Independence: Analyzing Recent Attacks by President William Ruto in Kenya
Introduction
The independence of the judiciary is a cornerstone
of any democratic society, ensuring a system of checks and balances that
upholds the rule of law. However, recent events in Kenya have raised concerns
about the erosion of judicial independence, with President William Ruto openly
criticizing and undermining the judiciary. This article examines the nature of
these attacks, their implications, and the underlying reasons behind them.
I.
The
Role of an Independent Judiciary
Before delving into the specifics of President
Ruto's attacks, it is essential to understand the significance of an
independent judiciary. In a democratic system, the judiciary acts as a neutral
arbiter, ensuring that laws are interpreted and applied fairly.
An independent judiciary is essential for upholding
the rule of law and ensuring that court decisions are based on the nation’s
laws and constitution, rather than on shifting political power or the pressures
of a temporary majority[1]. Judicial
independence is also crucial to maintaining the separation of powers,
preventing the abuse of executive authority, and protecting citizens' rights.
II.
President Ruto's Criticisms
President Ruto's public criticisms of the judiciary
have escalated in recent weeks, sparking concern among legal scholars and
citizens alike. The president publicly questioned the competence and integrity
of the judges involved, undermining the judiciary's authority and casting doubt
on the legitimacy of its decisions.
Speaking at a public function, President Ruto said
he will ignore some court orders that he sees as aimed at stalling government
development programs. He accused some judges of corruption and working with
those filing cases against his government's economic plans. "We will
protect the independence of the judiciary. What we will not allow is judicial
tyranny and judicial impunity," Ruto said.
The government led by Ruto has made the construction
of affordable houses and the provision of universal healthcare two of his top
priorities. But critics say in implementing the plans, the government is
trampling over the legal process. The High Court stopped the government's plan
to raise taxes to construct the houses, saying it was unconstitutional and
discriminatory, a decision that has angered the executive. Ruto has said he
will disregard these court orders from allegedly corrupt judges blocking his
key development projects.
In recent days, Ruto has also repeatedly threatened
to remove judges he accuses of teaming up with his political rivals to
frustrate his attempts to address unemployment in Kenya and provide affordable
housing and universal health care. However, the head of state has not produced
any evidence to back his claims that some judges are corrupt[2].
III.
The Rule of Law Under
Threat
The rule of law is a fundamental principle that
ensures that all individuals are subject to the law, regardless of their
social status or political affiliation. It is a cornerstone of democratic
societies and is essential for the protection of human rights and the promotion
of justice. The recent attacks on the judiciary by the head of state President
Ruto are a serious threat to the rule of law in Kenya. The judiciary is an
independent branch of government that is responsible for interpreting and
enforcing the law. When the head of state attacks the judiciary, it undermines
the independence of the judiciary and threatens the rule of law. This can lead
to a situation where the law is not applied equally to all individuals, and
those in power are able to act with impunity.
The recent attacks on the judiciary by the head of
state President Ruto are a serious threat to the rule of law in Kenya. It is
important for the government to respect the independence of the judiciary and
to ensure that the rule of law is upheld. This will help to ensure that all
individuals are subject to the law, regardless of their social status or
political affiliation, and that justice is served.
The judiciary's ability to make impartial decisions
is compromised when it becomes a target of political attacks. This erodes
public trust in the legal system, potentially leading to a breakdown in the
rule of law and an environment where political considerations take precedence
over justice. The rule of law is
essential for the protection of human rights and the promotion of justice. It
is the foundation of any democratic society and must be protected at all
costs.
IV.
Constitutional Safeguards
The Constitution of Kenyaunder Article 160[3]
explicitly guarantees the independence of the judiciary, outlining mechanisms
to protect judges from political interference.
President Ruto's recent attacks on the judiciary not
only violate the spirit of these constitutional provisions but also weaken the
safeguards meant to ensure an impartial and fair judicial system. The Kenya
Magistrates and Judges Association (KMJA) has condemned Ruto’s remarks on the
judiciary, calling them contemptuous and an abuse of the constitution[4].
Article 160 of the Constitution[5]
establishes the Judiciary as an independent arm of government, and Article 165
provides for the jurisdiction and authority of the courts. Therefore, any
attack on the judiciary by the executive arm of government is a contravention
of the Constitution of Kenya.
V.
International
Perspectives
The international community has consistently
emphasized the importance of an independent judiciary as a fundamental element
of a functioning democracy.
Principle 2 of the UN Basic Principles[6]
states that: "The judiciary shall decide matters before them impartially,
based on facts and per the law, without any restrictions, improper influences,
inducements, pressures, threats or interferences, direct or indirect, from any
quarter or for any reason."
The African
Charter[7]
obligates State parties to guarantee the independence of the courts. Moreover,
the Grand Bay (Mauritius) Declaration and Plan of Action[8] recognizes
that an independent, open, accessible, and impartial judiciary guarantees
adherence to the rule of law, democracy, and human rights.
These instruments underline judicial authority and
independence as essential to the principle of separation of powers and a
pre-requisite of the right to a fair trial. In sum, judges and judicial officers
have a right and a duty to decide cases before them, free from fear of
reprisals or intimidation.
The International Commission of Jurists (ICJ Kenya)
has issued a statement condemning President William Ruto’s recent statements
that cast aspersions on the integrity and independence of the Judiciary. The
statement highlights that such statements undermine the constitutional
principles governing the separation of powers and threaten Kenya’s rule of law
and judicial independence. The ICJ Kenya also mentions that the recent
statements come in the wake of similar statements attacking the rule of law[9].
VI.
The Way Forward
Following President’s Rutos statements, Kenyan
lawyers demonstrated peacefully in Nairobi against what they say is judicial
interference by President William Ruto, who has said he will disregard court
orders from allegedly corrupt judges blocking his key development projects. Peter Wanyama, who was among some 200 lawyers
who staged the march, stated that as lawyers they would stand firm to tell the
president that he was not above the law and that he ought to respect the law.
This is a step in the right direction to safeguard judicial independence.
The legal community, civil society, and
international organizations must also unite in condemning these attacks. Public
awareness campaigns can help educate citizens about the importance of an
independent judiciary and the potential consequences of political interference.
Additionally, legal professionals must remain vigilant in upholding the rule of
law and resisting any attempts to undermine the judiciary's independence.
Ruto said that the previous regime of Uhuru Kenyatta,
had a budget for bribing judges and that his government will not spend a single
cent bribing judges. The Law Society of Kenya has told Ruto to provide
evidence of corruption on judges and use proper channels in removing them
from office. It is imperative to balance combating corruption effectively and
upholding the principles of justice and fairness, ensuring that individuals
accused of wrongdoing are afforded their rights and treated within the bounds
of the law[10].
It is also essential for leaders, including
President Ruto, to express grievances with the judiciary through appropriate
channels without jeopardizing its independence. Constructive criticism and
engagement can foster a healthier relationship between the executive and
judicial branches, ultimately benefiting the nation as a whole.
Conclusion
The recent attacks on the judiciary by President
William Ruto in Kenya are deeply concerning and pose a significant threat to
the country's democratic principles. The erosion of judicial independence undermines
the very foundation of the rule of law and jeopardizes the rights and freedoms
of the citizens. It is imperative for all stakeholders, both domestic and
international, to work collaboratively to address the root causes of these
attacks and ensure the preservation of a robust and independent judiciary in
Kenya. The future of the nation's democracy depends on the collective effort to
uphold the principles of justice, fairness, and the rule of law.
[1] Principles
of Democracy, ‘An Independent Judiciary’, accessed 22 January 2024, https://www.principlesofdemocracy.org/judiciary.
[2] ABC
News, ‘Dozens of Kenyan Lawyers Protest What They Say Is Judicial Interference
by President’, ABC News (12 January 2024) https://abcnews.go.com/International/wireStory/dozens-kenyan-lawyers-protest-judicial-interference-president-ruto-106325449 accessed
22 January 2024.
[3]
Constitution of Kenya,2010.
[4] Judges
lobby condemns Ruto’s remarks on corrupt judiciary, The Star (3 January
2024) https://www.the-star.co.ke/news/realtime/2024-01-03-judges-lobby-condemns-rutos-remarks-on-corrupt-judiciary/ accessed
22 January 2024.
[5]Ibid
3
[6] United
Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, Havana, 27 August to 7 September 1990, Principle 2.
[7]
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered
into force 21 October 1986) (1982) 21 ILM 58 (African Charter)
[8] Grand
Bay (Mauritius) Declaration and Plan of Action, CONF/HRA/DECL (I), First OAU
Ministerial Conference on Human Rights, meeting from 12 to 16 April, 1999 in
Grand Bay, Mauritius.
[9] International
Commission of Jurists Kenya Section, ‘Statement Condemning President William
Ruto’s Attack on the Judiciary, Separation of Powers and the Rule of Law’ (ICJ
Kenya, 2022) https://icj-kenya.org/news/statement-condemning-president-william-rutos-attack-on-the-judiciary-separation-of-powers-and-the-rule-of-law/ accessed
22 January 2024.
[10] ICJ
Kenya, ‘Statement Condemning President William Ruto’s Attack On The Judiciary,
Separation Of Powers And The Rule Of Law’ (4 January 2024) https://icj-kenya.org/news/statement-condemning-president-william-rutos-attack-on-the-judiciary-separation-of-powers-and-the-rule-of-law/ accessed
22 January 2024.
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