On Judicial Independence

The tone of the The Nairobi Law Monthly over the past three issues has been triumphalist, celebrating the just successes of the inauguration of Dr Mutunga and Ms Barasa as the President and Deputy President of the Supreme Court of Kenya. The Nairobi Law Monthly, especially its editor Ahmednasir Abdullahi, have predicted that the reform of the Judiciary will be among the signature successes of the Chief Justice, and that he will lead the fight in making the Judiciary more independent, especially now that the Committee of Experts ensured its financial independence by providing for the establishment of the Judiciary Fund as a charge on the Consolidated Fund. The impression that The Nairobi Law Monthly has created is that financial independence of the Judiciary is synonymous with judicial independence. Nothing could be more fallacious.

I shall concede only one part of this argument: without financial independence the Judiciary was unable to expand its services to the citizens of Kenya; it was unable to offer members and staff of the Judiciary competitive terms of service; the work environment in the Judiciary was frequently dangerous and unfriendly; it was unable to modernise; and the training and re-training of judicial officers was frequently left on the back-burner. However, the much maligned former Chief Justice Evan Johnson Gicheru managed to spend goodly amounts of money on the expansion of Judiciary facilities across the country, and in the refurbishment of the Income-Tax House, he bequeathed the New Milimani Law Courts on a legal fraternity that had called him names and declared him an utter disappointment. It does not seem to me that lack of money was the reason why the Judiciary was not being modernised or reformed; rather it was the manner in which successive Chief Justices prioritised the resources available to them.

Another pillar of the new-found enthusiasm for the Judiciary is the manner by which the Chief Justice, his Deputy, judges of the Supreme Court and the remaining members of the Judiciary were appointed, that is, through a competitive, public process where their interviews and vetting were carried out in the glare of TV cameras and in the presence of the citizens of Kenya. The Judicial Service Commission assures us that this process gave us, and will continue doing so, the freest judicial members in the history of Kenya. Gone, it also assures us, are the days when the President (and Prime Minister) and their cronies picked their friends and supporters to serve in the Judiciary, more to protect their interests than serve the cause of justice in Kenya.

In drafting the Constitution of Kenya, 2010, the Committee of Experts offered a choice to the political class: settle for either a purely Parliamentary system in the Westminster style or for a pure Presidential system in the United States' mould. Kenya settled for the latter, and as a consequence the US concept of separation of powers and a system of checks and balances underpins the Constitution; the Executive, Legislative and Judicial Branches are separate and distinct, each with the power to check the other in some limited fashion. This is the first step to independence. The second was in ensuring that public finance in Kenya treated the three as distinct entities, hence the creation of the Judiciary Fund, among others. But it is on the third front that there has been deafening silence, even from The Nairobi Law Monthly, that is, in the rendering judgments and rulings by the courts.

To my knowledge, no statistics have been produced showing that bar corrupt acts, rulings and judgments of our courts were influenced, either by the Executive that controlled the purse-strings, or the Legislature that could conceivable pass laws unfavourable to the Courts, or by ideological and other considerations. It could be argued, though, that corruption has had a pernicious effect on the independence of the Judiciary, placing judicial officers at great risk of blackmail bay any of the aforementioned parties. Again, this aspect of the effect of corruption on the Judiciary has not been explored in public. 

This leaves us to ascertain from official court records whether the Judiciary was independent or not. During the JSC interviews of candidates for the offices of CJ, DCJ and judge of the Supreme Court, Omollo, JA, was cashiered by Mr Abdullahi over his consistent ruling in favour of President Moi in election petitions challenging the validity of his election as President of Kenya. Mr Abdullahi, however, failed to explore whether Omollo's, JA's loyalty extended beyond saving the president's bacon in election petitions. 

An analysis of the rulings and judgments of the Court of Appeal over the years should show whether the Court was overwhelmingly influenced by the Executive branch, or any other party or ideology, or not. It will give us an opportunity to determine for ourselves whether the Judiciary was guilty as charged, especially of the sins it is accused of having committed during KANU's long and corrupt reign in Kenya.

The Supreme Court of Kenya is now the highest court in the land. Its judgments are now binding on the Judiciary, including the formerly lofty Court of Appeal. It is for this reason that its rulings and judgments will be read with keen interest; after all, they are supposed to declare the rules of general application in Kenya. Of the 7 members of the Supreme Court, only Prof J B Ojwang', Mohammed Ibrahim and Philip Tunoi have a judicial record with which to ascertain their judicial independence; for the CJ, DCJ, Ms Njoki Ndung'u and Dr Smokin Wanjala, we will have to deduce theirs from their public stances, statements and published documents, a tall order at the best of times, but a veritable Himalayas when they have not been made public. It is their ideological and judicial philosophies that will determine whether the Supreme Court of Kenya will be independent, especially of the pernicious hand of the Executive branch, not the manner of its public financial management or the legislative agenda of Parliament.