NAIROB 17 JUNE 2020
The value of judicial independence is not just limited to the protection of the citizens from abuse of power and excesses, it also feeds into the general quality of governance, and more importantly, to the interplay and exercise of powers between the different organs of government. The principle of separation of powers, as espoused in the Bangalore Principles of Judicial Conduct, guarantees judicial independence and impartiality. These are central elements of any conception of the rule of law.
The Constitution of Kenya 2010, which is expansive and imbued with the values and principles of governance, created tension between the political branches of the State and the Judiciary. As a protector of human rights, democracy and the rule of law, the Judiciary remains at the centre of the hustle and tussle of interests. As such, regardless of the existence of formal constitutional protections, the Judiciary is not guaranteed independence. At an institutional level, the Judiciary is poorly insulated from Legislative and Executive influence as well as from other private interests.
Since 2013, there has been a notable campaign to portray the entire Judiciary as being without any integrity and not worthy of public confidence. Concurrent with harsh rhetorical and direct attacks on the Judiciary, there has been well-choreographed propaganda using social media and other platforms aimed at tarnishing the reputation of judges. Further attempts to starve the Judiciary of much needed human resource and funding have caused significant disruption in the administration of justice in the country. In recent events, the Chief Justice spoke out against underfunding as well as the refusal by the President to appoint 41 judges. Contrary to international standards, the Judiciary receives less than one per cent of the total budget that is allocated to the three arms of government. This has resulted in resource constraints in the Judiciary operations.
Through the Building Bridges Initiative (BBI), politicians have suggested retrogressive proposals that would clawback on the gains made in the Constitution 2010. These proposals include restructuring the composition of the Judiciary Service Commission (JSC), changing the manner of appointment and removal of judges, and changing the powers of the Chief Justice.
At the backdrop of these discussions, has been an increasing trend to disregard court orders by the Executive. Senior government officials top the list of people ignoring court orders at will. Recently, government agencies proceeded to demolish the homes of thousands of citizens in the modst of the Covid-19 pandemic despite a court order stopping them from doing so. Indeed, the Executive, which is obligated to obey court orders, views this as a privilege and a choice. Security agents have aided and abetted Executive action to undermine the independence of the Judiciary. The inability and lacking capacity of the Judiciary to resist attacks on its independence places it in a precarious situation.
An independent Judiciary is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other protections fail, it provides a bulwark against any encroachments on its rights and freedoms under the law. It is in this regards that ICJ Kenya wishes to held its 11th in a series of human rights and rule of law webinar that interrogated the following:
- What reforms, if any, should there be on JSC, that could bolster independence in appointment of judicial officers?
- What is the exact role of the JSC, Parliament and the President in the appointment of judicial officers? Is the role of the President to merely rubberstamp appointments as recommended by the JSC?
- What are the challenges faced in the operationalisation of the judiciary fund?
- What is the role of civil society in ensuring judicial independence in Kenya?
- What should be done in order to address the problem of disregard of court orders by the Executive and individuals in power?
