Quest for judicial independence still on

By Kelly Malenya

Some time last month, I spoke with a senior in the trade – an advocate admitted to the bar way before I was born. It was a casual talk and I sought to pick his brain on the seemingly common but very pertinent topic of “judicial independence”. According to him, most of us, young lawyers and even litigants who never interacted with the judicial system during the one-party State, may take for granted liberties we enjoy now that cost many lives then.

He observed with concern that he had not seen many of us appreciate and show respect to a “war” that he can figuratively equate to the freedom war between Kenyans and the colonial power, Britain. Perhaps I also wasn’t getting the point the way he wanted, but that brief interaction and my subsequent research on a public interest case made me remember and appreciate the ideal he’d tried to preach to me.

Dr Julie Oseko, in her PHD thesis “Judicial independence in Kenya; Constitutional challenges and opportunities for reform” submitted in November 2011 to the University of Leicester (UK), opines that “judicial independence” is used by scholars, judges, lawyers and members of the public to mean different things but all those usages allude to constitutionalism, rule of law and democracy. Particularly among African States, judicial independence is considered a core element of constitutionalism, democracy and good government.

Though it is not easy to give a concise and universally accepted definition to this concept, Prof JB Ojwang SCJ, in his article “The independence of the Judiciary in Kenya”, describes it as follows:

“Firstly, the citizen has to trust that the court’s judgement has finality, and is entitled to obedience, as a matter of constitutional obligation. Then the citizen has to trust that the Judiciary shall be guided by rules, principles and discretions not influenced by the very power-wielders who cause oppression or other harm. That is to say, the citizen expects the Judiciary to be independent, in its decision-making. And lastly, the citizen expects the Judiciary to be fair in its decision-making. All these attributes underline one theme, independence, as the hallmark of the Judiciary, in a constitutional set-up that protects the citizen, as an individual, even as the nation’s broad social goals are pursued by the relevant public agencies, which are driven by a political-cum-administrative mandate…”

This concept, according to the two scholars quoted, is intertwined with what we refer to as “the rule of law”, which is another broad multi-faceted concept, though most conceptions about it give central place to a requirement that people in positions of authority should exercise their powers within a constraining framework of public norms rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.

Institutional and personal independence
A procedural understanding of the rule of law helps one to appreciate what judicial independence is all about. The rule of law is violated when the institutions that are supposed to embody procedural safeguards are undermined or interfered with. It is in this way that the rule of law has become associated with political ideals such as the separation of powers and the independence of the judiciary. The UDHR, ICCPR, ICESCR, and even our own Constitution, provide for the right to a fair trial, which in a sense also implies the protection of courts and as a consequence of judicial officers from actual and apparent interference of any kind. The independence of the Judiciary is therefore manifested in two fronts; first through institutional independence and secondly through personal independence of judicial officers.

Institutional independence is where a judge is able to work in an independent environment and system. In this way, s/he doesn’t worry about the tenure, promotion, security and even legitimacy coming from the power and goodwill of the Executive or from any other quarter. It is only when this institutional independence is possible that a judge is able to have personal independence, where they can take action without fear or interference and where they are able to pronounce decisions based on law and their convictions on the notion of justice. The two fronts are dependent on each other hence one can’t stand without the other.

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