Judicial Independence
Judicial independence is a vital pillar in the constitutional order. However, it has been under threat across Africa and remains a more distant ideal in most African countries. While the Judiciary is the custodian of the rule of law in any democratic system of governance, the socio-political elite continues to underplay its role in ensuring that justice is administered fairly and transparently, especially in political processes. Attacks against the Judiciary have been increased both at the institutional and personal levels. Therefore, as the head of the Judiciary, the Chief Justice plays a critical role in ensuring judicial independence is respected and observed.
Through the Chief Justices leadership, judiciaries are emboldened to issue decisions to protect the rule of law, human rights and democracy. In most instances, these decisions are unpopular with the political class. In Congo, in 2019, Hon. Justice Yanyi was killed after presiding over the high-profile corruption trial of Vital Kamerhe, the president’s chief of staff. In Uganda, the constitutional court noted that the Judiciary’s independence was in jeopardy because of budget cuts; the court noted that funding the Judiciary in the Uganda was inconsistent with the law.1 In Southern Sudan President Salva Kiir’s summarily fired fourteen senior judges without input from the judicial service commission. In Malawi, the Chief Secretary to Government attempted to send the Chief Justice and one other Supreme Court Judge on compulsory leave pending their retirement following the Supreme Court’s decision nullifying the results of the 2019 presidential election. In Côte d’Ivoire, the Constitutional Council approved President Alassane Ouattara’s bid for a third term in office amid violence, revealing executive influence on the Judiciary.
In Kenya, the Judicial Service Commission (JSC) in 2019 recommended 41 individuals to the president for appointment to the Court of Appeal and High Court. None of the 41 recommended individuals2has been appointed. Further, the political class has been engaged in political discourses and contestations around constitutional change through the Building Bridges Initiative Process.3 The proposals therein revealed their intentions to capture the Judiciary by including a Judiciary Ombudsman who reports to the Executive. The BBI, ensuing vacancies in Kenya’s superior courts, and succession politics in the Judiciary are increasingly being used as vehicles by the political elite to capture the Judiciary.
The Webinar
On October 19, 2016, retired Chief Justice Maraga took the oath of office as the 15th Chief Justice of independent Kenya and the second Chief Justice in Kenya’s 2010 constitutional dispensation. After 17 years of service, Rtd. Chief Justice David Maraga’s tenure came to its end on Monday, January 11, 2021. Many applauded his legacy and determination to uphold the rule of law, justice and democracy. However, his departure left behind unresolved conflicts between Judiciary and the Executive.
The incoming Chief Justice, the third under the Constitution 2010, will have an uphill task to better the relationship with other arms of government and address monumental issues, including funding gaps and corruption. The Judiciary will also play an essential role in determining the victors for the different positions in the 2022 general elections. As such, the Chief Justice will be at the centre of political heat and will be critical in ensuring political stability in the country post-2022. Agreeably, Kenya’s political stability is not only crucial to Kenyans but the larger region.
ICJ Kenya is hosting a series of webinars dubbed the ‘The Next Chief Justice of the Republic of Kenya.’
The webinars aim at facilitating public deliberations and interaction on the recruitment process of Chief Justices and judges of the apex Courts in the region and Kenya.
The first in the series of webinars was held on 2 March 2021. The panellists and participants discussed succession issues, expectations of the recruitment process for Kenya’s Chief Justice, and Judge of the apex court in line with the spirit and letter espoused in Kenya’s Constitution, 2010.
During the webinar, the panellists and participants, drawn from all sectors, including academia, civil society, the legal fraternity, and public members, participated in the discussions and contributed through the ICJ Kenya social media platforms and online streaming services.
Look out for our next webinar!
Download our Jurists’ Communique on the recruitment of the Chief Justice and Supreme Court Judges in the region HERE
Watch the webinar recordings HERE
