By Alpha Femi
But the same Jefferson asserts that “the constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please”. Jefferson’s second statement alludes to just how dangerous a rogue judiciary can be when solely entrusted to determine and interpret a State’s affairs.
Judicial independence is a central pillar of Kenya’s constitutional system. Courts play a pivotal role in maintaining this, as is recognised everywhere, as recent history in Kenya can attest. Certain developments have advanced and reinforced the concept of protecting judicial independence, particularly with respect to the independence of judges and courts, from the Executive.
Traditionally, it has been in the place of judges to confine their opinions to their rulings. It has been the norm. But the past four or five years have been a half decade of exceptions – the Judiciary has hesitatingly but surely distinguished itself as a voice of authority, a final arbiter.
It hasn’t been a straightforward development, of course, but it has been there, lurking in the sidelines, now rearing its head, now retreating into the shadows. But anyone who understands the working of the establishment in Kenya will appreciate the often-subtle – at times not-so-subtle – demonstrations of independence and assertiveness, which can be attributed to the new crop of leadership and independence of the judiciary after the promulgation of the constitution in 2010.
Constitutional lawyer Anthony Oluoch sums up the new found judicial authority with a quote from renowned writer Alexander Hamilton: “In the three arms of government, judiciary is the weakest yet, perhaps, the strongest.”
The truthfulness of this has been asserted and demonstrated over the past four years when different constitutional state organs and institutions have sought redress in court.
“The Executive may hold the sword and Parliament the key to making laws, the judiciary remains the ultimate arbiter as it enjoys the constitutional architect of clear separation of powers. The judiciary has woken to the reality that their authority comes from the people and must exercise that authority for the people,” he says .
Prior to the promulgation, the efficiency, independence, integrity and public confidence in the judiciary was at its lowest. The coming into effect of the Judges and Magistrates Vetting Board also aided in returning public confidence in the Judiciary after it weeded out several judges and magistrates it found to be unsuitable and blamed for the rot in the institution.
60-year-old Martin Ndirangu had lost hope of ever recovering his 3-acre piece of land outside Kiambu town with the case having dragged in court for over 20 years.
“I finally got my land back when the court ruled I was the genuine owner of the land. I had tried settling the matter with the local administration to no avail. All my hopes were in the judiciary and am happy I got justice at last,” said Ndirangu.
When the judiciary held its first public open day under the Judiciary Users Committee at the Milimani Law Court, there was a record turn up of members of the public from across the country as a show of confidence people have in the judiciary.
Anne Omondi, a teacher at a school in Garissa travelled all the way to have the attention of the Chief Justice to resolve a commercial dispute between her family and another company.
“The opportunity was like godsend. When I got information inviting members of the public to come for the open day, I left all I was doing in Garissa and travelled to Nairobi to seek help from the Chief Justice on behalf of my father,” said Omondi.
That gesture showed the confidence members of the public have in the judiciary, buoyed by the openness and massive campaign for public participation in all judicial processes. It was a reverse of a 2010 report of a Task Force on Judicial Reforms which concluded that runaway and unabated corruption, political interference, gatekeeping, tribalism, nepotism had contributed to low public trust and confidence in the Judiciary.
“Over the years, patronage took hold at different levels of the institution, taking the form of political appointments; nepotism and tribalism; favouritism in appointments and promotion; and judicial subservience by some judicial officers,” summarized the report.
When other arms of government fail in proper governance, they too turn to the judiciary as a last resort of settling their dispute. It is a change of previous culture where a presidential or an executive proclamation could settle a dispute between state organs.
Even President Uhuru Kenyatta’s intervention to end constant wrangles between the National Land Commission and Ministry of Lands CS Charity Ngilu did not bear fruits, with the two resorting to sort out their differences at the Supreme Court.
“It is clear the two have not agreed on anything, one party wants more time for talks while the other party doesn’t want any more dialogue. We will now take over the dispute and have it resolved amicably by the seven judges of this court,” said Justice Jackton Ojwang.
Justice Ojwang made the decision after a fresh row erupted between Ms Ngilu and NLC chairman Mohammed Swazuri after she disowned a report by a committee tasked to identify their disputes and recommend solutions as sanctioned by the Supreme Court.
Several other state corporations, government ministries, and constitutional bodies have taken their battles to court as a final arbiter to settle the scores.
The Senate sued the National Assembly for failing to involve it in Bills relating to county governments and it took the intervention of the Supreme Court to bring an understanding between the two houses.
It was the Supreme Court decision that put an end to the supremacy battles between the two houses, with clear recommendations and guidelines on how to deal with future disputes.
Mr Oluoch is of the view that it is only the National Assembly which is still burying its head in the sand by constantly going about their businesses without regard to the judiciary. “Everyone is finding solace in the judiciary except the National Assembly and MPs who still conduct their business under the assumption of parliamentary supremacy. That is a fallacy since there is nothing superior to the constitution and which the judiciary has done well to enforce,” said Oluoch.
The rush for refuge in the Judiciary extends to county governments which not only seek protection from forces fighting devolution but also from members of their assemblies who at times hold them hostage. The new development shows how the judiciary plays a very significant role in the socio-economic and political development of any democracy.
Members of the public, activists, and civil organisation groups have turned the Judiciary into a battle ground to fight bad governance and repressive laws, with most cases seeing the judiciary turning the heat on parliament and the executive.
A three-judge bench of Justices Isaac Lenaola, Mumbi Ngugi and David Majanja took the National Assembly head-on by declaring the Constituency Development Fund unconstitutional, thereby depriving the MPs the funds they have been using to chest thump and reward the loyalists.
The new found love for the Judiciary can be attested to the ambitious plan by its leadership, cooperation among judicial officers, and support from members of the public and transparency in appointing judicial officers.
Dr Mutunga had in efforts to stamp out corruption in the Judiciary and improve transparency appointed an Ombudsman to receive and respond to complaints by staff and the public which has seen many judicial officers improve on their accountability. The CJ has repeatedly been quoted saying the existence of courts alone is no guarantee to justice but also the values and quality of the people who lead it; the aspirations and design of the constitution that creates it; and the vigilance and civic consciousness of the people who continuously demand good services in justice delivery.
Unlike previous years where individual persons could be slapped with huge bill of costs for going to court in a bid to protect some entities and stop them from questioning some decisions, the new judiciary has opened up where most cases brought in public interest has no orders for costs.
Activist Bradley Ouna said the new rules that allows anybody to file a petition has increased public confidence and that they no longer fear taking anybody to court.
“It used to be for lawyers only to file petitions, but now everyone can go to court when he feels his right is being violated or when there is an infringement to the constitution. This makes it easier for us to access justice and see the Judiciary as the place for last remedy,” says Ouna.
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