Judiciary needs robust leadership for a properly functioning court system

The intrusion by the Executive must be dealt with in a way that recognizes the supremacy of the separation of powers doctrine and maintains judicial independence.

By Ouma Ojango

Of the many things that happened in the three-day demonstrations in July against the high cost of living called by the Opposition, a police raid and attack on journalists inside a courtroom in Milimani is the most dumbfounding.

As had been predicted, the demonstrations were met with the full force of the State’s monopoly of violence. This resulted in police brutality, death, and destruction of property. The raid, however, by the police in full riot gear of the courtroom during the bail hearing of Embakasi East MP Babu Owino, who had been arraigned on subversion charges, speaks to the independence of the third arm of government in this new political dispensation.

Independence of Kenya’s Judiciary, particularly against emasculation by the Executive, is an emotive issue to senior citizens who witnessed and fought against its destruction, which subverted justice in the Nyayo era. One of the biggest benefits of the struggle against Nyayoism that resulted in the repeal of Art. 2a of the Constitution in 1991, the reintroduction of multiparty democracy and the promulgation of the Constitution of Kenya 2010, is the independence of the Judiciary.

The late President Daniel Moi and his KANU regime treated the Judiciary like an extended arm of the Executive. To him, the Judiciary was like a toy, and the Chief Justice his remote control of the toy. There existed no line in his eyes between the Executive and the Judiciary. He hired, promoted, demoted, transferred, and fired judges at his whims. If there ever was a case in Court in which the Executive was invested, the Executive got the judgment the Executive wanted. It was for the pocketing of the Judiciary that Moi and Kanu perpetuated their reign for 24 years, within which the dissidents of his regime were persecuted, detained without trial, tortured, and jailed on trumped-up charges.

Already, fears are rife in the legal fraternity that with the recent disruptive transfers in the High Court affecting 13 judges, including those judges that have recently dished adverse judgments against the Government, there could be a bigger hand in the running of the Judiciary. Lady Justice Mugure Thande, who suspended the implementation of the Finance Act 2003 in June before the Court of Appeal later lifted her orders, has, for instance, been moved to Malindi High Court from the Constitutional and Human Rights Division in Milimani, Nairobi.

Justice David Majanja, heading a three-judge bench to hear and determine a petition challenging the Finance Act 2023, has been moved from the Commercial and Tax Division to the Civil Division. Justices Hedwig Ogundi and Aleem Visram, who were among the panel of judges that overturned the appointment of 51 CAS, have been moved to Nakuru High Court and Civil from the Commercial and Tax Division, respectively. Like the KANU regime style, no explanation was given for the shakeup.   

While the Nyayo era stranglehold on the Judiciary by the Executive came to a halt in 2002 when Mwai Kibaki and the NARC Government came to power, it was in goodwill. It wasn’t until after the promulgation of the Constitution 2010 that the Judiciary found its rightful standing. Art. 160 (1) states thus; “In the exercise of judicial authority, the Judiciary, as constituted by Article 161, 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 Constitution also speaks, in detail, to the appointment to the office of the CJ, DCJ, and other judges in Art. 166, tenure of the CJ and other judges in Art. 167, removal from office of a judge in Art. 168 and, most importantly, establishing the Judicial Service Commission (JSC) in Art. 171.

The first Chief Justice post the Constitution 2010, Dr. Justice Willy Mutunga, and his predecessor, Justice David Maraga, did a sterling job jealously guarding that hard-earned independence. They understood the history of how it was earned and the blood lost in the fight for it.

Independence of the Judiciary can manifest in three forms: Administrative, jurisprudential, and political. Jurisprudential independence speaks to judicial officers’ freedom to decide independently, without anyone else’s influence or supervision. Jurisprudential independence is heavily dependent on administrative and political autonomy. On the other hand, administrative independence has more to do with human resource management, finance, and budget. It is more dependent on political independence.

The political independence of the Judiciary is the trickiest yet preeminent, without which the other two cannot thrive. It is about the top leadership’s ability to maneuver the murky waters of maintaining a cordial relationship with the Executive and the Legislature without compromising the institution’s jurisprudential and administrative independence. It behooves the Chief Justice to play the politics of interdependency of the arms of government yet still guard jealously the hard-earned independence of the Judiciary.

It is unfortunate that Chief Justice Martha Koome is still starstruck at her post and unable to maintain the interdependence of the arms of government while at the same time insulating erosion of her institution’s independence. The CJ seems mesmerized and unable to resist the Executive’s charm offensive, especially by this new regime in power. The tragedy is, by the time she wakes up from her slumber, if she ever will, the rug will have been swept under her feet, and the clock on judicial reforms and independence will have been irretrievably rewound.

The interdependency of the three arms of government does not mean that the Judiciary’s power to check the Executive is relegated to the periphery. There isn’t any Executive that enjoys being checked. Given the leeway that CJ Koome’s stewardship of the Judiciary is seemingly doing, the Executive, and this particular Executive, will cannibalize Judiciary independence so that the Nyayo era’s emasculation of the courts will seem child’s play.

The highhanded crackdown on the proponents of the demonstrations rekindles the dark days of the Nyayo regime’s detention without trial and the torture chambers. The Judiciary then, as it is now, kept quiet. When the detainees eventually surfaced in the chambers and read trumped-up charges, the judges did the Executive’s bidding and handed them maximum sentences. We are not yet there, but that reality is looming large on the horizon. The police are violating the rights of the arrested persons, and when the accused are finally arraigned, the courts handle them like everything is normal. Has Art. 49 of the Constitution has been quietly suspended? Why hasn’t any court questioned its violation?

The raid of the court precincts and the roughing up of the members of the Fourth Estate by the police in riot gear during the re-arraignment of the Member of Parliament for Embakasi East is the biggest indicator yet that the independence of the Judiciary is on trial. One would have expected that the Lady Chief Justice would seize the moment and come out in a press conference to condemn that violation and argue the case for the independence of the Judiciary. She did not.

She left it to the institution’s Directorate of Public Affairs and Communication, whose response to the atrocity was lame. First, the response came only after the ugly video of the police clobbering almost everyone within their sight in the court precincts had gone viral. Wouldn’t they have, of their motion, come out to condemn the violation? Secondly and most importantly, smacking of the bias of the personal leanings of those who wrote the statement, the response dwelled more on the freedom of the media. It did not adequately prosecute the case of attack on the independence of the Judiciary. It sounded like the Judiciary under CJ Koome would have been OK with the unprovoked presence in the courts’ precinct of the police in riot gear; how we normalize the abnormal!

Chief Justice Koome needs to change tack. She can protest the cannibalization of the independence of the Judiciary by the Executive without necessarily ruffling feathers. And if guarding that freedom means ruffling feathers, so what? Losing that independence would have dire and long-lasting consequences for Kenyans. The tenure of the position she holds today is secured courtesy of a long-drawn street battle against President Moi’s iron fist rule that saw many young lives cut down and many children destitute. She should rise to the occasion.