There is undoubtedly, some tension between the Judiciary and the other two arms of government. The Judiciary has been accused, and for a good reason, of impeding the Executive’s efforts to solve social issues including graft, insecurity, terrorism, tax evasion and other societal concerns that bedevil our nation. The Judiciary is also accused of enabling the frustration of development projects as well as being completely out of touch with the will of the people.
The President has on many occasions expressed his frustration with the Judiciary’s lukewarm support for the fight against corruption. One of those notable occasions was in October 2016 at the State House summit on fight against corruption. The President (H.E Uhuru Kenyatta) expressed concern over the manner and the pace at which the Judiciary was handling the corruption cases. “…I don’t even have the power to appoint you (The Judicial Officers) or sack you…mnataka nifanye nini (what do you want me to do?) …” he asked. The president’s remarks sparked outrage from many Kenyans many of whom consider him to enjoy the powers to direct all public institutions including Judiciary thus being ultimately responsible for all their successes and failures. This is however a question of perception rather than reality.
The Constitution renders the Judiciary an independent arm of the Government, whose affairs cannot be interfered with by any other arm be it The Executive or The Legislature. The President has minimal influence in the appointment, disciplining or removal of Judicial Officers. He cannot direct or reprimand the Judiciary. Which begs the question, why then should the president unfairly bear responsibility for the failures of the Judiciary when he clearly has no significant role in the management of affairs at the Judiciary? This does not mean that the president should in any way interfere with the decisional independence of the Judiciary. There is consensus on the need to safeguard and respect the decisions of the courts against any external influence. Does this however imply that the Judiciary should escape accountability in the name of guarding independence? What is the redress for the public if judicial officers decide to go rogue? Is the current mechanism for oversighting Judiciary sufficient to guarantee that public interest is held supreme at all times? These are questions that call for a sober public debate and in-depth interrogation of the current Judicial system.
The constitution of Kenya (2010), Chapter 1 Article 1, clearly recognizes that the sovereign power belongs to the people and that they can exercise it directly or indirectly. This therefore designates all public institutions as stewards of the sovereign power of the people. There is therefore serious need to place a high premium on accountability by all public institutions without exemptions.
The Judiciary is one of the arms of government alongside the executive and the legislature. All the three arms are meant to provide a public service and none of them should act in their own interest but always in the interest of the people of Kenya as a whole.
It’s easy for anyone to understand how the executive and the legislative arms are held accountable by the public but the biggest challenge in Kenya today is how to hold the Judiciary accountable to the people. The Judicial Service Commission (JSC) is the independent body mandated by the constitution to facilitate the independence and accountability of the judiciary. It’s imperative to note that the JSC as an institution is the only available platform for the public to hold the Judiciary accountable under the constitution. Further, it’s important to note that the effectiveness of such a body is highly dependent on the composition of its membership. Under the current constitution, the JSC is comprised of eleven (11) members; seven (7) of whom represent the interests of the legal community while the interests of the rest of the people are represented by four (4) members.
Simply put, the Kenyan populace cannot directly or indirectly hold to account seven (7) or 63.6% of the 11-member Judicial Service Commission. It must also not be lost to the public that most decisions by the JSC are made by a simple majority. Special interest groups completely unaccountable to the holders the states’ sovereign power, through ballot or otherwise, control two-thirds of that powerful constitutional commission.
An objective analysis of the current structure of JSC would cast doubts on the effectiveness of such a body as the platform for accountability. In a democratic state like Kenya, ultimately, it’s the will of the people, expressed through a proper democratic process that is supreme (sovereignty of the people). This then begs the question, are the interests of the Kenyan people sufficiently represented in the Judiciary?
Conflict of Interest
There has been a raging debate as well on the existence of potential conflict of interest in the membership of JSC that threatens the independence of Judiciary. The specific matter of concern is the fact that the two representatives of the Law Society of Kenya (LSK) in the JSC are allowed to continue practicing as advocates. In essence, these advocates appear before their employees for judicial determinations. This is obviously a matter of great concern and ought to be addressed.
Relationship of the three arms of government
The principle of separation of powers does not mean that any of the three arms can ever operate in complete isolation from others. The three arms rely on one another to provide the totality of necessary public services. This relationship of interdependence requires that they work harmoniously for the benefit of the people.
In its dealings with the other two arms of government, the judiciary must seek to avoid being seen as guarding only its own interest. It must show understanding and above all responsibility towards the needs of the public. Has the Kenyan Judiciary epitomized the championing of public interest?
There is an urgent need to reform the Judicial Service Commission to ensure that the public interests are sufficiently represented in the judiciary while of course ensuring that the independence of Judiciary is preserved. The Judiciary should not oppose any genuine proposed changes in the judicial system by labelling them as an attack on judicial independence.
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