By Yash Pal and Jill-Cottrell Ghai
The Kenya judiciary has a heavier responsibility than judiciaries in almost any other country. The public generally associates the judiciary with deciding cases in disputes among the people or between the people and the state.
But the judiciary (judges and staff) has other important roles, such as ensuring justice is available to all and, most importantly, that the constitution is observed by all, most critically the other institutions of the state — with whom it is liable to come in conflict periodically.
As with other parts of the constitution, we can only understand the full significance of its provisions on the judiciary if we are aware of the deficiencies of the judiciary before the constitution. It was widely regarded as both incompetent and corrupt.
Judges often colluded with the police and prosecutors to secure bribes from the accused, and in civil cases, traded with the parties paying the largest sum. They routinely decided cases on instructions from the president and his associates. At the behest of the government or bribes from the wealthy, the judiciary undermined the rule of law and the protection of the people from blatant injustices. At lower levels, the staff would hide files so cases could not proceed unless they were bribed to restore the file. The public lost confidence in the judiciary.
Principles about judges and magistrates
The framers of the constitution saw the cleaning up of the judiciary, and the institution of an honest and competent judiciary, as crucial to the prospects of the new constitution, especially as they were determined that the constitution would restore people’s rights, curb the greed of politicians and public servants, restore democracy, and deal with past injustices.
It aimed first of all to vet all existing judges for integrity and competence, and to ensure that in future judges and magistrates were appointed by a Judicial Service Commission through a totally independent process.
The qualifications for appointment at different levels were prescribed to ensure that only suitable candidates (including from outside Kenya) were appointed, unlike in the past where the president and Attorney-General played a key role.
Judges were guaranteed security of tenure and of their salaries and benefits to encourage them to make fair decisions, without fear of consequences to their career.
Principles in the discharge of judicial functions were carefully defined, including that justice would be done to all, regardless of status; justice would not be delayed and would be administered without undue regard to procedural technicalities, facilitate other forms of dispute settlement — and most important of all, the purpose and principles of the constitution would be protected and promoted.
Jurisdiction of courts
The judiciary is one of the three principal arms of the state, along with the executive and the legislature. There has been much discussion about how the three institutions relate to each other.
Both the executive and the legislature have argued, on the principle of the separation of powers, that the courts cannot question the acts of the other two. They are not right, as the constitution expressly gives the judiciary complete jurisdiction to interpret all provisions of the constitution and to provide a remedy for breach (Article 258).
Another aspect of jurisdiction is that anyone can approach the court to seek a ruling by the court, even if her own personal interests are not involved. This shows the importance attached to both the people and the judges in upholding the constitution.
Apart from this general jurisdiction, the constitution confers special authority in respect of some key issues. For example when a state of emergency is declared by the government, the Supreme Court has to decide whether it is valid (Article 58). Courts can give broad orders and remedies in cases of environmental damage (Article 70). The courts play a critical role in the electoral process, including on the delimitation of electoral units, settling of electoral disputes, and importantly, on the election of the president.
The courts play a key role in deciding on the validity of laws, particularly with regard to compatibility with the constitution. Disputes such as those between senators and governors or the two houses of Parliament are generally resolved by the courts.
We should realise both how central and how difficult the judicial function is — and how critically important it is to the protection and development of the constitution.
Interpreting the constitution
Another important (and unusual) aspect of the jurisdiction is that the constitution sets out rules for its interpretation. In the case of the Bill of Rights, the court must adopt the interpretation that “most favours the enforcement of a right or freedom”.
The court must promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom as well as the spirit and objects of the Bill of Rights. Article 259 requires the courts to interpret the constitution in a way that promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance.
So the judicial task is not a mechanical one, nor do the judges have to worry whether to adopt a liberal or conservative approach (which constantly worries the US Supreme Court!).
We should realise both how central and how difficult the judicial function is — and how critically important it is to the protection and development of the constitution. However, a court cannot on its own start on interpretation or judicial orders —someone has to bring a case to court.
First it is important to note that in some respects the roles of the Executive and Legislature are quite different from that of the judiciary; they decide on policies and can proceed to implement them, masters of their own authority. But for the judiciary’s major responsibility, deciding disputes and interpreting the law, courts have to wait until litigants come to them – in civil cases usually the affected people, and in criminal cases the prosecution theoretically acting on behalf of the people (there is a widespread belief that some “cartels” enjoy considerable impunity, regardless of what the people would wish). Executive and parliament are able effectively to decide on their budget but the judiciary must negotiate hard, effectively with both of them. The judiciary has traditionally been understaffed and underfunded—the situation, once seen to improve, is now, regrettably, on the decline.
To some extent a court’s decision is based on arguments presented to it (so the quality of judgment depends significantly on the calibre and integrity of advocates—especially as Kenyan judges tend not to probe them). Another constraint is that courts cannot enforce their judgments on their own initiative; often those who have “won” cases and their lawyers seem too exhausted to go back to court and demand that the judgment be carried out. In many cases implementation depends on the executive, particularly the Attorney-General. Here again, the record have been abysmal. Some learned and humane judgments have been negated in this way. The judiciary has been reproached for certain failings which are not its faults. When we turn to specific principles of justice and law, it is important to remind ourselves that they bind not only the judiciary, but the “legal system” which includes the Attorney-General and the Director of Public Prosecutions. Many failures in the justice system can reasonably be attributed to them, not the judiciary. Nor must we ignore the highly politicised context in which the judiciary has to operate now, with responsibility to decide whether the acts of the executive and the legislature are compatible with the constitution (something neither the president nor the parliamentarians take kindly to).
Justice for all
This principle is closely tied to access to justice. There is immediate unfairness if some people cannot go to court for lack of resources, or as even more frequently, do not know that they have the right to approach it. The former problem cannot be resolved unless the government provides legal aid which our Attorneys General have so far avoided doing, thus violating Article 48 – but it good to see it is on the National Assembly’s agenda for the near future. Justice is also denied, as has occasionally happened, when judges seem intimated by tough talking, intimidating advocates, without much legal substance.
The judiciary has tried to make itself more relevant and approachable through open days, its “marches” through the country, and court users committees. It has vastly increased the number of courts, reaching most areas; soon there will be a High Court in every county. For access to the Court of Appeal, people in far off places need not come to Nairobi; it has been “decentralised”.
A major criticism of the judiciary is delay. Many cases go on forever in Dickensian style. Some judges seem to show little regard for the difficulties, indeed suffering of litigants.
Justice shall not be delayed
A major criticism of the judiciary—not only in Kenya—is delay. Many cases go on forever in Dickensian style. Some judges seem to show little regard for the difficulties, indeed suffering of litigants; they postpone cases without good reason—often! Apart from new courts and dispersal of the Court of Appeal, much progress has been made in tacking backlog, especially in criminal cases, which should have the result of speedy decisions. It is estimated that while until recently, it took about 10 years for a case to be heard in the Court of Appeal, this is reduced to 3 years. Great progress has been made in clearing election cases (unlike the not unusual instances previously when decisions were made a fortnight before the dissolution of parliament!). Judges have entered into performance contracts requiring them to file regular reports on progress.
Justice without undue regard to procedural technicalities
Cases should no longer be frustrated due to technicalities. The reality is different. Judges and advocates seem fond of technicalities, especially when they perplex their clients. Sometimes a technicality can change the entire tenor of the case, as many critics have said of the Supreme Court approach in the 2013 presidential election case, refusing to consider a great deal of evidence by Odinga’s lawyers because they had not given the evidence earlier.
Alternative dispute resolution
The excessive load on the judiciary can be reduced if disputes are dealt with by alternative methods of resolution, such as mediation, arbitration and traditional dispute settlement. This issue is being addressed by the judiciary, through creating awareness, pilot schemes, use of paralegals, and training people. Here of course the responsibility is not solely of the judiciary, but the community, professional organisations, elders, and the government.
Protection and promotion of constitutional purpose and principle
This responsibility lies at the heart of the constitution. It affects the Rule of Law, our rights and freedoms, social justice, integrity, participatory democracy, sustainable development, and most of all, national unity. In the limited scope courts have for settling of these issues, they, particularly the Constitutional Division of the High Court, have been faithful to the Constitution, with judgments of compassion and erudition. We have already the beginnings of excellent precedents and jurisprudence of what is sometimes referred to as the “transformative constitution”.
A fundamental challenge to the judiciary was to clean itself and to redeem its reputation as the result of its abuse by Kenyatta and Moi, creeping – then galloping – corruption within itself, compounded by lack of competence. In this regard the judiciary has largely succeeded, though there is some way to go.
The vetting of judges may not have been a total success, but it did get rid of several incompetent and corrupt judges. The very fair processes of appointment and discipline of judges through an independent JSC have done much to restore some confidence in the judiciary. Initiatives taken by the leadership of the judiciary have done away with useless traditions, and promoted dialogue between judicial officers and the public. Dialogue among judges and their submission to educational sessions on the constitution and specialised laws have served to enhance their understanding of the constitution—and the challenges it poses for them.
The credit for much of this progress must in large measure go to Chief Justice Mutunga. His commitment to the values of the Constitution, particularly integrity, social justice, participation and scholarship—and the willingness to learn from other countries – are responsible for the positive changes in the judicial system. The many initiatives he has taken to improve standards of judgments, relationships with the people (ever ready to engage with the poor and the “uneducated”, as with scholars and the establishment) have immeasurably raised the reputation and respect for the judiciary. The question now has been whether his successor can continue his reformist and humanist agenda.
If it seems like we are retrogressing, that may be because we are not out of the woods yet! (
— This article is an expanded version of reflections from the professorial duo in 2015