By Titus Bario and Ekesa Austin
The drafters of the Constitution of Kenya, 2010, envisioned a state of affairs where the three arms of Government would exist structurally independent of each other but function in a mutually, complementary manner. The former state is what is referred to as separation of powers and the latter as a system of checks and balances.
The doctrine of separation of powers was advanced by French theorist and philosopher Montesquieu. There is, however, nothing like absolute separation of powers. This is what led to the system of checks and balances, advanced to ensure that no arm of government exceeds its limits of powers.
The Constitution of Kenya vests each arm of government with powers. It outlines the functions that must be carried out by each of them. No arm is exclusively independent of the other and in order to advance rule of law and promote efficient service delivery and functioning of government machinery, the three arms must work in conformity. None is subordinate to the other.
In the spirit of checks and balances, the Legislature is a watchdog to the Executive and Judiciary. The latter ensures that the Executive and Legislature work in accordance with the Constitution of Kenya. The Executive, for instance, can utilise some mechanisms such as withholding funds where they are misused by the other arms of government in order to curb malfeasance.
However, we are presently concerned about the independence of the Judiciary and how the same has been muzzled and wantonly disregarded by an overzealous Executive irrespective of the its important mandate of safeguarding the rule of law, promotion of access to justice and protection of fundamental human rights and freedoms.
The Judicial Service Commission (JSC) is the gatekeeper of the Judiciary by dint of article 171 of the Constitution, which gives the Commission powers to interview and recommend to the President names of persons to be appointed as judges. Currently, there exists a tiff between the JSC and the Executive over the appointment of 41 persons recommended by JSC and forwarded to the President for appointment judges. The President has refused to appoint and gazette the persons citing adverse reports that he has on some of the appointees.
Civil Society movements have various tools at their disposal that they can use to force the Executive to respect the Judiciary. Such mechanisms include demos. They can also organise boycott of tax payments.
We could give the President the benefit of doubt in the sense that it is not logical to gazette persons who have questionable integrity or whose conduct is tainted. However, it is further reported that the intel the President relied on came from the National Intelligence Service (NIS), Kenya Revenue Authority and Directorate of Criminal Investigations. Since it is the JSC that conducts due diligence before interviewing members for such positions, there is need for synergic collaboration between the JSC and other agencies and institutions of government for the proper safeguarding of the integrity, and, indeed, the independence of the Judiciary.
Had the NIS, for instance, served the JSC with the damning dossiers about the nominees before they were interviewed, the latter, staying true to the dictums of natural justice, would have afforded the adversely named judges the opportunity to respond to the allegations. It would have done its own investigations and, it is highly doubtful the commission would have gone ahead to recommend for appointment individuals whose integrity, on the strength of these investigations, had been found wanting.
Indeed, in a recent response on assertions by the Executive that some individuals recommended either for appointment to the bench or promotion to the Court of Appeal from the High Court had integrity issues, the JSC said the NIS had indeed served them with a terse notice not to appoint certain individuals. But the NIS, Registrar of the Judiciary Ann Amadi said, did not elaborate on the reasons the said persons should not be appointed or respond to the JSC’s request to them for elaboration. The JSC did background checks on the targeted individuals and nothing worth acting upon came up.
A strong JSC supported and bolstered by other agencies such as the office of the Director of Public Prosecutions, Directorate of Criminal Investigations, Ethics and Anti-Corruption Commission, NIS and the Judiciary Ombudsperson will be able to ensure that it fights for the independence of Judiciary. It will also ensure it acts as a bulwark against infiltration of the Judiciary by Executive operatives.
Disrespect for court orders not only undermines the rule of law but also weakens the public trust in the Judiciary. It should be made obligatory to vacate office for any state officer Secretary disobeys court orders.
There should be a specific percentage of the Consolidated Fund that is earmarked for annual disbursement to the Judiciary. This will deter the Executive from unjustifiably and maliciously arm-twisting the Judiciary through allocations. It is not lost on us that the members of the Judiciary, just like those in any other government organ, may be involved in misuse of funds. There would therefore be need for stronger checks and balances on management of Judiciary funds, which can partly be achieved by way of closer collaboration with the Auditor General’s office, and stiffer penalties on employees of the Judiciary found culpable of misappropriation.
As it is now, the Judiciary funding is at the behest of the National Treasury, which is an appendage of the Executive. This has exposed it to the whimsical and arbitrary actions of the Executive in determining how much money it is allocated, which drastically undermines the much-celebrated post 2010 Constitution independence of the Judiciary.
Ag Cabinet Secretary, National Treasury, Ukur Yatani recently slashed the Judiciary budget by at least half crippling the Judiciary, and eliciting a rare public cry from the Chief Justice, David Maraga. Even though the National Treasury has since reversed the cuts, it was not until after the High Court had pronounced itself on it and ruled the move illegal on a petition by the Law Society of Kenya that the reversal happened. This also left unimpressionable perception of lame Judiciary in the public eye.
Up the ante
Organisations such as Muslim for Human Rights (MUHURI), Haki-Africa and Kituo Cha Sheria have, over the years, kept the watch on government especially as relates to, inter alia, respect for the rule of law and independence of the Judiciary. The ante should be upped.
Civil Society movements have various tools at their disposal that they can use to force the Executive to respect the Judiciary. Such mechanisms include peaceful demonstrations. They can also organise boycott of tax payments to force the Executive to obey court orders. The emerging culture where the big honchos in government, including cabinet secretaries, arbitrarily disregard court orders should be stopped by every means possible. It is a breeding ground for anarchy as it has a ripple effect of weakening the Judiciary by eroding public trust.
The office of the Ombudsman, mandated with receiving complaints against judicial officers, should be strengthened. A strong Ombudsperson will ensure that it cushions the institution of the Judiciary from rogue elements whose conduct is tinkered with scandalous affairs. If the office is revamped and the members of the public have immense faith in it, then the sanitization of the judiciary will be possible.
The Ombudsman should also be given more powers beyond merely recommending the prosecution. Further, the Ombudspersons office ought to be devolved in all counties so as to bring services closer to the members of the general public.
Finally, there should be dire repercussions to every and any institution that disobeys court orders. Disrespect for court orders not only undermines the rule of law but also weakens the public trust in the organ of the Judiciary. It should be made obligatory to vacate office for any Cabinet Secretary or Principal Secretary disobeys court orders.
Blatant and flagrant disobedience to a lawful court order by a sitting President should also be a ground for impeachment that should be invoked by Parliament.
It was wrong and indeed it sent a bad signal to the members of the public when the Cabinet Secretary for Interior as well as the Head of Immigration disobeyed court order with respect to reinstating Dr Miguna Miguna’s citizenship and to allow him back to the country. Last year, the President also, in a manner that could lead the public to emulate him in disrespecting courts of law, disobeyed a court order that had obligated him to gazette the name of Court of Appeal Judge Mohamed Warsame as the representative of the appellate court to the JSC.
The doctrine of judicial independence is not only a pivotal aspect in the operations of the Judiciary but also necessary in the advancement of the rule of law as was propounded by Albert Venn Dicey, the British Whig jurist and constitutional theorist and author on the law of constitution. The Judiciary should be strengthened so that justice and democratic governance are achieved. (