By Ndung’u Wainaina
Since the UhuRuto regime came to power in 2013, the executive treatment of judiciary has been odious. The duo came to power on populist agenda. It had the honour to be the first regime to be elected under the progressive Constitution of Kenya 2010. Unfortunately, it has urinated on that honour.
Judiciary was lucky to have a Chief Justice in willy Mutunga who entertained no nonsense from the Executive’s quest to cannibalise, capture and cripple institutions of governance. Predictably, the National Assembly succumbed with devastating consequences.
On their attacks on the Judiciary, UhuRuto began with defying court orders. Secondly, they have been starving judiciary of financial independence and sufficient resources. Third are attempts at capturing and controlling the recruitment and appointment judges and magistrates through compromising the Judicial Service Commission (JSC). Fourth, the President has refused to perform the formal constitutional obligation of gazetting independently recruited JSC commissioners and judges, which he justifies with obnoxious reasons. Finally, government has constantly failed to ensure the full security and safety of judges as way of instilling fear. Put simply, UhuRuto loath the Constitution and its democratic state tenets.
In a democratic state, power rests on three separate organs. An independent judiciary is the sine qua non of a democratic state. The independence of the judiciary gives concrete expression to two essential elements of democracy – the rule of law and separation of powers. In a constitutional democracy, the political process and any state function must take place within the confines of the law. Judges are tasked to uphold the rule of law. To ensure that they do so without improper influence, they must be independent from the executive and legislative branch of power, their role for democracy is particularly important in safeguarding human rights.
Under international law an independent judiciary must be impartial, approach cases in an unbiased manner, display no prejudice, be politically independent and operate without fear. On the basis of international law, these principles can be translated into some key guidelines.
The power to make judicial appointments should not lie in the hands of a single political actor, especially the executive, with the ability to exercise wide discretion in the selection and appointment of judges. It is preferable for judicial appointments to be made through a process that provides for the participation of other sectors of government and society, for example legal practitioners, opposition political parties, civil society, the legislature, or members of government responsible for judicial administration.
Courts must be provided adequate financial resources to fulfil their functions. The judiciary itself or a judicial commission must be solely responsible for managing the judiciary’s budget.
Courts must be politically independent; they must not be beholden to, or subject to manipulation or influence from the executive, administrative or legislative branches of government, which will often be parties before the courts.
Courts must be able to fulfil their functions without fear: Judges cannot act independently if they face retribution for judgments unfavourable to private parties or government.
Security of tenure requires that judicial appointments be for life, until mandatory retirement, or for a set term of office. Terms of service and remuneration cannot be reduced unfavourably.
Judges must remain accountable for their conduct, they must be competent and must commit to impartiality and integrity.
Transfer and re-assignment of judges within the judiciary must be determined by the judiciary internally and lie beyond the sole control of the legislature or executive.
All courts must be established by law: the court structure must not be subject to summary modification by the executive, and ad hoc courts must be prohibited.
Other guidelines are: the judiciary, or an independent judicial commission must be responsible for the administrative management of the judiciary; tribunals other than traditional courts are subject to the same principles of judicial independence as the ordinary courts; the allocation of cases to judges is a matter of internal judicial administration, and should, ideally, be randomised or routinised; military tribunals must have no jurisdiction to try civilians; prosecuting authorities must be impartial and operate fairly; and a judicial council, if established, should be composed primarily of judges, and its powers and functions set out clearly in law.
The independence of the judiciary is an essential element of constitutional democracy as human rights and the rule of law that the courts are mandated to protect. The United Nations General Assembly recognised this link in the 2004 declaration on the “essential elements of democracy”. The discussion of international law on judicial independence is anchored in an understanding of the essential functions of courts in constitutional democracy.
Courts in constitutional democracies serve two functions. First, they are guarantors of human rights. Human rights and, in particular, political rights are crucial to democratic government. Second, the judiciary secures rule of law by ensuring the conduct of the executive is consistent with previously enacted laws, with rights, and with the constitution.
The UN Basic Principles on the Independence of the Judiciary bring these elements of judicial independence together in a succinct definition: The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. In addition, constitutional democracies around the world have encoded versions of this working definition in domestic constitutions.
The Kenyan Constitution emphasises fidelity to the Constitution and the law and prohibits interference in the work of the courts at Art. 160: In the exercise of judicial authority, the Judiciary shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority. The judiciary is an independent authority that ensures the prevalence of justice, the supremacy of the Constitution, the sovereignty of law, and the protection of rights and freedoms. Judges are independent. No power shall be exercised over their rulings other than the power of the Constitution and law.
Uhuru and Ruto came to power on populist agenda. Theirs had the honour of being the first regime to be elected under the Constitution of Kenya 2010. Unfortunately, it has urinated on that honour.
There has to be the distinction between the judiciary itself and the institutions that support the work of the judiciary. Ensuring that judges decide cases fairly and independently is only one element of judicial independence. Just as individual judges themselves must be independent, the judiciary as an institution must remain impervious to manipulation and outside influence. Judicial independence implies both that judges must be individuals of integrity and must decide cases before them in accordance with the principles of judicial independence and be free from outside interference, and also that the judiciary as an institution functions autonomously, without interference from the other branches of government, in regulating its own administrative and internal arrangements.
The personal independence of judges is protected, in large part, by the mechanisms and procedures for the appointment of judges and the extent to which politicians or private parties are able to influence judicial behaviour after judges are appointed. However, judges who fail to perform their tasks competently, independently or impartially must be accountable for their actions. Judicial independence cannot permit judges to act without any degree of accountability. The rules for the appointment, terms of service, dismissal, discipline and sanction of judges must strike a delicate balance between the need for protecting judges from undue external influence, and the need for judicial accountability.
In conclusion, the importance of judicial independence to constitutional democracy cannot be overstated. Courts serve to protect human rights and secure the rule of law. In order to do so, it is critical that courts operate consistently with the tenets of judicial independence. The international law offers both “hard law”, binding rules for judicial independence, and “soft law” guidelines for judicial independence. International law permits these rules and guidelines to be met in a variety of ways in different domestic legal and constitutional contexts, and does not demand that specific models of the judiciary be established or that specific mechanisms and procedures for regulating judicial conduct be put in place. Assessing whether a country’s rules and mechanisms for the operation of the judiciary are consistent with the international law requires detailed and thorough analysis of relevant rules and mechanisms in light of the international law. (
— Writer is Executive Director, International Centre for Policy and Conflict @NdunguWainaina