By Prof Ben Sihanya
The judiciary is in sharp focus. President Uhuru Kenyatta, the Attorney General, the Director of Public Prosecutions (DPP), the Director of Criminal Investigations (DCI), the Ethics and Anti-Corruption Commission (EACC), some legislators at the national and county levels and even some lawyers are increasingly attacking the judiciary and courts generally, as well as the Chief Justice (CJ) or the Deputy Chief Justice (DCJ), judges and magistrates specifically. Or they simply choose to ignore court orders.
They allege easy bail and bond terms, other favourable decisions, and delays in criminal and civil cases, thereby affecting investors, donors and tax payer interests. Some also allege generic judicial incompetence, corruption collusion or complicity with corruption cartels. The multisectoral National Anti-Corruption Conference that ended at Bomas on January 25, 2019 witnessed the most concentrated judicial attack.
The overarching research question is how the judiciary and Kenyans can secure judicial independence and accountability vis-a-vis presidential or executive imperialism, impunity and legislative tyranny and overreach. How do Kenyans stop “political justice”, which Public Interest Lawyer Dr Oki Ooko Ombaka contextualised as the use of criminal justice for political purposes?
I explore three related (hypo)theses or arguments. First, when performing the interpretative function, judges and magistrates are superior to the other arms of Government and only subject to review or appellate process, popular sovereignty, the Constitution, and the law. Second, the doctrines of separation of powers and checks and balances apply less to the judicial function than to the two levels and two arms of Government. Third, and in the context of these attacks, the following agencies should promote judicial independence and accountability through the constitutionally and legally stipulated mechanisms as well as judicial or soft politics: the Judiciary and the Judicial Service Commission (JSC), the Kenya Magistrates and Judges Association (KMJA), the Law Society of Kenya (LSK), and the National Council on the Administration of Justice (NCAJ).
First, the judicial function, power and performance are anchored in Articles 159 and 172 of the Constitution. These find support in Articles 1(1), 2(1) and 3(1). Let us consider these weighty constitutional questions in the conjuncture of the siege on the judiciary and in the Kenyan quest for the rule of law, due process, human rights, constitutional democracy, social justice and the public interest.
Under Article 159(1), “(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.” This power is based on and supported by Arts 1(1) and 1 (3) which state, “(1) all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution; and “(3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution: … (c) the Judiciary and independent tribunals.”
The foundation of the judicial function in popular sovereignty has been correctly interpreted by Justice George Vincent Odunga (“Lord Denning” as many lawyers call him) in the following terms:
“Whereas, under Article 3(1) of the Constitution, every person has an obligation to respect, uphold and defend the Constitution, pursuant to Article 165(3) (d) of the Constitution, the arm that is constitutionally mandated with the task of deciding whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution is the High Court. To my mind, courts are the best suited institutions to deal with such matters since they do not owe their allegiance to partisan political interests but to the Constitution – since we are a constitutional democracy.”
That judicial power is intended to enjoy and promote judicial independence (Art 160) and accountability to the people (Arts 1, 159). Both are mutually interdependent and reinforcing. The independence and accountability are institutional, structural or collective (the judiciary, courts, judges, magistrates, as a whole). They are also decisional (individual or personal). Art 160 is a four-pronged elaboration of judicial independence: First, the Judiciary, as constituted by Article 161, shall be subject only to the Constitution and the law and not be subject to the control or direction of any person or authority. Second, security of tenure is guaranteed. Also guaranteed is fair remuneration, as well as personal immunity (from suits) under Art 160 (2)-(5) with respect to judges. Professor Yash Ghai has captured this ‘The rule of law, legitimacy and governance’ (1981).
Judicial independence and accountability are elaborated and mechanisms provided, respectively on the review, appeal processes, on security of tenure of judges, on discipline and removal of judges and magistrates and on the judiciary found under Articles 172(1) and 159(2)(d), 24 (balancing rights and power), 259 (1) (a), (b), (d)…; Arts 162, 163, 164, 165, 166, 167, 168, 169, 170, 171.
Art 172(1) states, “(1) The Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice.” JSC’s core mandate is five-pronged. First, to recommend to the President persons for appointment as judges. Second, to “review and make recommendations on the conditions of service of: (i) judges and judicial officers, other than their remuneration; and (ii) the staff of the Judiciary.”
Third, to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament. Fourth, to prepare and implement programmes for the continuing education and training of judges and judicial officers. Lastly, to advise the National Government on improving the efficiency of the administration of justice.”
Remarkably, as part of judicial accountability, the Constitution requires judicial officers to prioritise substantive justice over procedural technicalities. Art 159 (2) (d) stipulates: “(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles :…( d) justice shall be administered without undue regard to procedural technicalities.”
Judicial independence is linked to judicial accountability. And there is consensus from among diverse scholars and judicial officers from diverse backgrounds. Yash Vyas in “The Independence of the judiciary: A third world perspective” in vol. 11, Third Legal Studies, writes, “Independence [of the judiciary] does not mean independence from broad accountability to the nation or its goals and objectives.”
I was once moved to advance the accountability principle in a presentation to the Institute of Certified Public Accountants of Kenya on judiciary, where I argued:
“Accountability is one of the cornerstones of good governance and requires the due performance of tasks or functions by an individual or agency [like the Judiciary]. Such a mandate and performance are subject to another’s oversight, direction or request that the individual or agency provides information or justification for its action [or omission]. Thus accountability exists where persons in authority [like judges and magistrates] are answerable for their actions and there is transparency in leadership.”
In similar vein, Supreme Court Justice JB Ojwang’ in Ascendant Judiciary in East Africa: Reconfiguring the Balance of Power in a Democratising Constitutional Order, (2013) states at 41:
“While the Constitution requires all State organs to perform their part in giving fulfilment to the Constitution, the ultimate arbiter is the Judiciary, which has unlimited powers of interpretation. Interpretation of the Constitution and of any law, is far-removed from a condition of violence, tumult, or hurt to anyone, as the Judiciary’s operations are minutely governed by known law and procedure; and this justifies the standing of the judicial function as the essential underpinning of the new constitutional dispensation.” (emphasis mine)
This is part of the problematique of the judicial function: the judiciary does not have unlimited interpretative jurisdiction. As discussed above, it is limited by the accountability principle through constitutional and legal provisions and ultimately popular sovereignty (Arts 1, 159, 160). And its lack of accountability has often hurt most Kenyans, especially through unfair determination of cases on presidential elections or corruption, and through other contrived orders, rulings or judgments.
But the judiciary must be independent.
The second broad attack on the judiciary relates to separation of powers which has been resorted to especially by President Kenyatta and some legislators like National Assembly Majority Leader Aden Duale and Senate Majority Leader Kipchumba Murkomen who now seems to (belatedly?) recognise judicial independence. Some have argued that separation of powers means that the Legislature is supreme on law making, the Executive in administration and execution, the judiciary on interpretation. And that separation of powers as well as the “political question” doctrine restrain the judiciary from hearing or deciding matters which belong to the two political branches. Kenyatta, Duale and others argue that separation of powers is the basis of judicial “restraint,” and negate judicial “activism” so as to permit presidential and executive imperialism and impunity, as well as tyranny and overreach, respectively.
For instance, in a dissent in the Presidential Election Petition No 1, 2017, ‘Raila v. IEBC and Others’, Justice Ojwang’ argued counter-textually (contra Art 140…) that the Supreme Court had no power under the separation of powers doctrine to determine presidential elections. Kenyatta argued rhetorically that “four judges” could not overturn the decision of “40M” Kenyans. He then threatened to “revisit” the judiciary and judges whom he called wakora (or crooks) following the Supreme Court nullification of his “election.” And soon enough, the DCJ was arrested even as Kenyatta and Duale continued to harangue some (identified) judges and magistrates.
In the same vein, some legislators have claimed separation of powers and ouster of the court’s jurisdiction or power on important issues such as Section 11 of the Powers and Privileges Act of 2017 which was nullified by the High Court. The section had read, “No proceedings, elections or decision of Parliament or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court.” The Legislators had sought to insulate themselves against any form of accountability for the decisions and bills they pass.
And in some cases, where the judiciary or specific judges and magistrates have interpreted, construed or enforced the law, the National Assembly has responded in kind by unconstitutionally, illegally, unlawfully, unreasonably and irrationally reducing the budget of the Judiciary and JSC. For instance, the Judiciary had requested about Sh31 billion in the 2017/2018 budget but the National Assembly cut this to less than half; President Kenyatta later purported to allocate KES 17.3 billion. Was Kenyatta seeking presidential legitimacy and supremacy vis-a-vis the judiciary and the budgetary process that is supposed to be participatory, consultative and consensual under chapter 12 of the Constitution? Or was it a populist stance to delegitimise the judiciary and elevate the presidency as the do-gooder? Happily, CJ David Maraga partially responded through soft politics by calling it what it was: strangulation of the judiciary.
As discussed above, and especially under Art 160, separation of powers must always be read together with checks and balances. The “Political question” is not textually supported. It rests on a narrow ahistorical conceptualisation of “politics.”
The judiciary has the power to settle or resolve all disputes subject only to the people, the Constitution and the law. The judiciary has jurisdiction to decide substantive issues (or on merit) and review the process where the President, the Executive, the Legislature or lower courts and tribunals have not followed the Constitution, the law or rules and regulations governing their own procedures. For instance, Justice Mohamed Warsame had been elected by Court of Appeal Judges to join the JSC under Art 171(1) but Kenyatta refused, neglected or failed to appoint him as required by law.
In fact, Kenyatta and some Jubilee legislators wanted him vetted by the National Assembly which acts as Kenyatta’s rubber stamp. Progressive Kenyan lawyers and even LSK argued that section 15(2) of the Judicial Service Act 2015 is unconstitutional for purporting to give the President a role the Constitution has not assigned him regarding persons elected pursuant to Article 171(2) (b) (c) (d) (f) and (g) of the Constitution, and amounts to a wrong exercise of state authority contrary to the Constitution, and that it is a threat to the independence of the judiciary.
Relatedly, Kenyatta has utilised every opportunity to secure JSC Commissioners on a tribal basis so as to control JSC. Critics argue that in a JSC of eleven (11), four (4) are Kikuyu – and two of these are there as “public representatives” – while the other two include the Attorney General and one elected member. Until the appointment of Prof Margaret Kobia as Cabinet Secretary, there were a total of five commissioners from the Kikuyu tribe vis-à-vis 42-75 Kenyan tribes.
In ‘Law Society of Kenya v Attorney General & Another; Justice Mohamed Abdulahi Warsame & Another’, High Court Justice Chacha Mwita ordered Chief Justice Maraga and JSC to facilitate Justice Warsame to take his position at the JSC. Justice Mwita ruled that an administrative action such as the President’s appointment cannot hold a constitutional process hostage. He held:
“The President’s action has been challenged as not founded on any legal pedigree and the court has found the action to be in violation of the constitution and the law which makes it invalid, with the consequence that the 1st interested party and all those concerned can ‘safely disregard it,’ so that an administrative act is not allowed to frustrate a constitutional process. In that regard, it is this court’s view that the 1st Interested Party having been elected as required by the constitution and the law, but the President has failed to perform his duties as required by law without constitutional or legal justification, the court should grant an appropriate relief that should deem the 1st Interested Party to have been appointed to enable him take his position in the Commission to representative [sic, as representative] of Judges of the Court of Appeal. This view is informed by the fact that, it is not the President’s act of appointment that makes the 1st interested party a commissioner but his election.”
The judge ordered that he take his position in JSC immediately.
In an earlier (related) petition in ‘Law Society of Kenya & Another v National Assembly of the Republic of Kenya & 3 Others’ [2018], Justice Mwita had stated thus on the independence of Judiciary:
“The people of Kenya made a deliberate decision on how they wanted JSC constituted and its members appointed. This was intended to guarantee independence to JSC and by extension to the Judiciary. Independence of the Judiciary cannot be delinked from that of JSC because Article 172(1) of the Constitution mandates JSC to promote and facilitate independence of the Judiciary. JSC cannot do so if it is not independent. Subjecting persons duly elected by peers as required by the Constitution to approval by the National Assembly will not only expose them to ridicule, possible political patronage and horse trading, but would also defeat the spirit of the Constitution, thus interfere with independence of JSC and ultimately, that of the Judiciary.”
Thus the “political question” doctrine does not apply under Kenya’s constitutional text and intendment or spirit, as well as Kenya’s legal sociology or constitutional and legal method and system at all, or as it does on defence and foreign policy matters in the US.
Relatedly, the judiciary, judges and magistrates have also helped check legislative tyranny through unconstitutional laws in at least three matters: the Security Laws Amendments in 2014, the Legislature’s failure to play the oversight role on the President and the Executive; and by judicially and politically responding to attacks by the President, the Executive generally and some legislators.
The judiciary and specific judges and magistrates should continue to question presidential and executive (through ODPP and DCI) imperialism and impunity regarding the judicial function or role even in politicised Executive corruption cases, the National Youth Service (NYS), and the Kenya Power and Lighting Company (KPLC), Standard Gauge Railway, the Kenya Pipeline Corporation (KPC), and the non-prosecuted matters like Eurobond, (SGR), MAfya (or Health ministry), or the Sh10,000 bribes in the National Assembly, among others.
Third, and partly based on the foregoing and emerging context, there is need for appropriate political engagement by the judiciary, including courts, tribunals, judges, magistrates as well as the leadership through the CJ, DCJ, JSC, KMJA, NCAJ, LSK, the private sector, and civil society organisations (CSOs). The two key reasons are that the judicial function, power, performance and even survival is a political matter. It is about decision-making; about making choices where there are competing options, and especially questions on presidential and executive power. It is thus political in the positive sense, not the politics of intrigue, fitina, propaganda, or uchochezi (subversion).
As Yash Vyas states, “Judges are parts of the machinery of authority within the state and as such cannot avoid performing political functions.”…. He adds:
“In supporting the institutions and stability of the system of government, the judges do perform a political function. The judiciary is not only a legal but also a government institution and therefore political in nature.”
The second reason is because President Kenyatta, the Executive (especially DPP and DCI), some legislators and some lawyers have engaged in high-octane politics to discredit and delegitimise the judiciary, judges and magistrates. As human rights activist Maina Kiai argues in the Sunday Standard of January 20, 2018, the intention is to turn the spotlight away from the impunity in the presidency and the executive as well the executive’s actions and omissions that have perpetuated corruption. To what effect? Kiai states:
“But there is also a hidden agenda in discrediting the courts: It prepares the public to be sufficiently malleable to accept a particular woman as Chief Justice once Deputy Chief Justice… is dispensed with and Chief Justice David Maraga retires. For this particular woman has proven a diligent protector of the Gikuyu mafia, no matter the law or facts.”
Another objective could be to secure an opportunity to reconstruct the judiciary to be subservient to the President through a constitutional amendment. Thus, soft politics and “fighting or playing dirty” becomes relevant through what former Chief Justice Dr Willy Mutunga calls the role of the judiciary as an “institutional political actor.”
Judicial policy, strategy, tactics and response to presidential and parliamentary political power play (5Ps) should of necessity be grounded on the key issues discussed earlier on the judicial function, independence and accountability. Judicial decisions must be grounded on the Constitution and the law in a political and technical sense (Arts 1,2,3, 159, 160, 172…), including direct application of the Constitution and the law, or valid derivation from the constitutional, juridical and regulatory texts, spirit and intendment.
To be sure, Chief Justice Maraga has sometimes responded to attacks on the judiciary thus: “If, for whatever reason, you think you might not win a case, then if you bring it to court you know the result. It will be dismissed,” He elaborated.
“If you bring a hopeless case, we will say in our judgment why we are dismissing it, and the public will know where to place the blame. If you bring us a strong case and we are the ones playing monkey business, the public will also see.”
During the anti-corruption conference in Nairobi last month, the CJ boldly responded:
“Since I am in the dock, I am going to be very candid. The war against corruption is not going to be won by blame-games by people who are involved, and some are here, hiring professional bloggers to demonise the Judiciary…”
Popular sovereignty
The CJ appropriately clarified on separation of powers, checks and balances and accountability in the adversarial (as opposed to inquisitorial) justice system: “…The judiciary doesn’t go out there to look for cases. Those people who are aggrieved come to us, we must hear them and if they have no basis dismiss them and uphold them if they have a basis.”
President Kenyatta, the DPP, DCI and other officials in the Executive had repeated their attacks on Judiciary, blaming it for the failure in the fight against corruption.
Second, and to be sure, the interpretation, construction, application and enforcement of the Constitution and the law must be pro-people, founded as it must be on popular sovereignty (Arts 1(1), 1(3)). Third, judicial decisions must be founded on judicial integrity (Arts 10, chapter 6, 23). The alternative – direct or indirect judicial participation, collusion, connivance or acquiescence in corruption through cartels controlled by judicial officers, politicians, executive or lawyers – will compromise judicial accountability and even independence at two levels. First, JSC would have to discipline, remove (like magistrates) or recommend the removal of the officers (like judges). Second, such corruption or lack of integrity has given and will give the President, executive and some legislators the basis to delegitimise or discredit the judiciary and judicial function, the motives notwithstanding.
Judges and magistrates must, as Shakespeare stated, be like Caesar’s wife, blameless and without blemish. Where there are integrity challenges they and JSC must address these immediately to restore integrity and avoid eternal condemnation as ruled by Justices Joel Ngugi, Mumbi Ngugi, and G. V. Odunga in ‘Mumo Matemu v Trusted Society of Human Rights Alliance’ (2012).
Significantly, judicial corruption and lack of integrity has made the public (sometimes) ambivalent on (the need for) judicial independence. And some have questioned judicial accountability. Hence the judiciary may lose the people when it is pro-legislature, where its officers lack integrity, or where they are “more executive minded than the executive” as Lord Atkin opined in ‘Liversidge v Anderson.’
The JSC and the forthcoming JSC election of one male LSK representative is key to judicial independence and accountability and have thus captured the attention of lawyers, the President, the Executive, the Judiciary and the public interest. And there are (decoy) candidates who answer to Kenyatta’s political and tribal preference in JSC.
The Commission has recorded some achievements. Notable challenges relate to fair and equitable rulings and judgments and consistency in legal method, especially on precedent and stare decisis. This is especially on election and corruption cases, and cases where the Presidency has a personal or institutional interest, like LSK elections. Critically, JSC will soon have to decide or influence the decision on vacancies in the CJ’s office in the Supreme Court arising from retirement, or arising from presidential or executive “revisit.” It also appoints judges of the Court of Appeal and the High Court. The Commission is reportedly set to recommend the appointment of 10 Employment and Labour Relations Court judges, 20 to the Environment and Land Court, and 11 Court of Appeal judges.
The judiciary is the fountain of justice, the ultimate constitutional interpreter, subject to the Constitution, the law and popular sovereignty. The Supreme Court and the judiciary is, as stated by SC Fred Ojiambo, the exponent of national values and a safeguard for integrity. It must defend the rule of law, judicial independence and accountability under the constitution, and in the National Anthem’s credo: “let justice be Kenya’s shield and defender.” (
— Ben Sihanya is a Constitutional and IP Professor & Public Interest Advocate,
University of Nairobi Law School & Sihanya Mentoring & Innovative Lawyering. Sihanyamentoring@gmail.com. He is the author of IP and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, Vols. 1 & 2 (2016; due 2019); Constitutional Democracy in Kenya and Africa Vols. 1 and 2 (due 2019)
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