The East African region is ripe with promise. Our three nations have experienced rapid political, social, legal and economic developments in recent years. The unstoppable march of progress has been matched by steady integration at the East African Community (EAC) level. Kenya, Tanzania and Uganda have grown into emerging modern, mature, social democracies; whose people dream of and expect their increased economic prospects to come hand-in-hand with greater human rights, freedom and democratic space.
In Kenya, the vibrancy of the state of the Rule of Law is higher than ever before. Following the promulgation of a new Constitution in 2010, Kenya has undergone a complete governance overhaul. As I stated during my speech to a Special Sitting of the Kenyan Parliament on October 6, 2014, there are very few constitutions that equal Kenya’s in terms of protection of the rights of the individual, its balancing of Executive, Judicial and Legislative power, its demand for fulsome public participation, transparency, accountability and integrity.
We now have a truly independent Judiciary, which is equipped with a Judiciary Fund that allows it to implement its strategic plans and address capacity development issues without being beholden to either the Executive or the Legislature. In that regard, funding for the Judiciary has increased nearly tenfold in the last decade; with new judicial stations being established across the length and breadth of Kenya thereby bringing access to justice closer to the people.
The number of judges and magistrates has increased dramatically; with the superior courts now boasting almost three times as many judges as they were in 2010. This new institutional arrangement is now solely in the hands of the Judiciary itself through the Judicial Service Commission. The human resource capacity of the Judiciary is greater than ever and still increasing so as to quench the thirst of Kenyans for faster and more effective justice processes.
With its emphasis on substantive justice, the expeditious conclusion of cases, and opportunities for alternative dispute resolution, our Judiciary makes Kenya attractive to diverse stakeholders. Non-governmental entities, investors and highly skilled individuals offering various services find within this progressive framework many opportunities to make Kenya better.
Against the backdrop of promise and a bright future, dark clouds still linger, threatening to blot out the dreams of our people.
Increasingly, East African nations are experiencing challenges that are cross-border in nature. Terrorism, human trafficking, illicit arms trade, smuggling, poaching and narcotics trade are a shared blight across the region, and can only be effectively combated by close cooperation and coordination by our nations.
The Judicial branch has a critical role to play in realizing the dreams and expectations of East Africans. At the same time it helps fight the vices that threaten our peace, progress, social harmony and happiness.
The courts are an equal arm of government, sharing the same Constitutional burden as the Legislative and Executive arms. None may sit aloof or set forth to operate unilaterally or function independently of the others. The State is strongest and most capable of fulfilling its obligations under the Grand Social Contract when the Three Branches find synergy and work together.
The three Arms of Government are not meant to be in conflict nor are they in competition.
The principle of Checks and Balances underpinning our constitutional order does not empower any Branch to infringe on the mandate or role of another, or to impose its own particular vision on the decisions and actions of the others. Mutual respect, humility, communication and an eye on the pursuit of the greater common good are the grease that oils the three indispensable cogs of the engine of State, allowing for each to turn smoothly and work together without friction.
I must add here that in Kenya, the Judiciary can lead our nation in embedding its collective psyche in the National Values and Principles of Governance.
I believe that judicial independence must remain inviolable. Its foremost guardians are the holders of judicial authority. A critical threat to judicial independence is its potential for abuse. Therefore, the Judiciary must sternly reject corruption and impunity in all their manifestations.
A common concern across East Africa is that at times the Judiciary acts in a manner that throws roadblocks in front of the proper execution of lawful Executive and Legislative authority. In particular, the issuance of injunctive interim orders, especially ex-parte, has done much to undermine goodwill and harmony between the Three Arms of Government in each nation.
It behooves you to discuss this issue, with a view of agreeing on common standards of judicial practice across East Africa that will address the concerns of the Executive and Legislative branches, but without lessening the vitality of the Rule of Law and the proper administration of justice. The balance, delicate as it may be, must be found for there to be just and effective Government in our young democracies.
In that regard, I encourage you to reach out to the Executive, Legislature, non-governmental players and the public at large. Much more can be achieved by consultation and consensus building than by brinksmanship. As Africans, we have always appreciated the importance and understood the undeniable benefits of the community sitting down to brainstorm in the face of challenges aimed at building stronger states. Justice is not the exclusive province of the judiciary. Rather, it is the tree in whose shade we all congregate to confer on how to steward the social contract.
Justice is the principle which suffuses the functions of every individual, office and institution. More than anything else, our capacity for justice legitimizes our work. Therefore, we must do justice to each other as partners in governance, and to the people’s trust for which we are stewards.
This is not to say that the Executives and the Legislatures are immaculate and infallible.
My Government’s commitment to the Rule of Law in Kenya cannot be questioned. Just recently, I took the step of honouring summons of the International Criminal Court, both as a personal obligation, and to demonstrate the principle that obedience to judicial edicts is vital.
The rule of law depends in no small measure on the respect for judicial authority. In turn, this is made conceivable by the expectation that every judicial action and decision is inherently just. Total obedience must be met with total integrity.
My Government’s unwavering commitment to the Rule of Law is part of our solemn pledge to honour, obey, uphold and defend the Constitution of the Republic of Kenya at all times.
It is also informed by inescapable logic: w
We may not always like the orders issued by Courts, we may profoundly disagree with their substance, but I believe that we will never disregard them for in doing so we would be showing contempt to the very same constitution from which we draw our own power and authority.
In the same way that legitimate businesses have seized on the tremendous opportunities on offer from trading across national lines, criminals and terrorists are also seeking to create regional networks and ply their evil across our borders. To address this menace, the Courts in East Africa must come together the same way security, intelligence and specialist agencies have. This way, we will answer regional integration with the integration of law enforcement capacity