Why independence of the Judiciary is essential

Here we go again.
Of course, I’m referring to the latest attack on the Judiciary by the Jubilee administration and its legislators here.
This is not fake news, or alternative facts occurring in a parallel universe. Here’s the video too, because like Thomas, you must see it to believe it.

Seriously though, when a Cabinet Secretary declared untouchable by his boss makes such remarks, are we not entitled to presume that it is the official policy of the government of the Republic of Kenya to undermine the Judiciary?
After all, we’ve had the Leader of the Majority Party in the National Assembly openly accusing a judge of playing “tribal politics”

Which prompted this statement from the Chief Justice

Under Article 160 of the Constitution, the independence of the Judiciary is subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority. Yet we have a Cabinet Secretary actively undermining the Constitution he swore to uphold.

Independence of the judiciary is fundamental. Here’s Lord Neuberger, the President of the United Kingdom’s Supreme Court explaining why it is so critical not to undermine the judiciary  while it is performing its function, which is to uphold the rule of law.

Whoever said we were morphing into Kanu 2.0 with a digital reboot was not joking. This is like watching that Arjen Robben compilation of him cutting inside from the right before dispatching a left-footed shot into the net. It. Happens. All. The. Damn. Time. Someone. Do. Something. Please.

In 1988, the KANU government, through the Constitution of Kenya (Amendment) Act No. 4 of 1988 removed security of tenure for judicial officers.
I quote from a reliable source analysing the effect of this amendment:
“Central to the observance of constitutionalism and the rule of law is the doctrine of the separation of powers; which entails in part the independence and impartiality of the judiciary and the political neutrality and impartially of the public service. The twenty-third amendment therefore went against the entire philosophical and jurisprudential basis of the Constitution. In effect, the amendment gave to the executive powers to interfere with the judiciary and the civil service with impunity. There can be little doubt the amendment was intended to ensure that neither the Judiciary nor the civil service had meaningful autonomy, which would enable them to carry out their constitutional mandates. Nor can there be any doubt either that this further emasculation of the public service was intended to ensure complete and total subservience to a powerful executive. While the amendment was a logical extension of the process of concentrating immense powers in the executive and reducing its accountability to other organs of government, it was blatantly unconstitutional. There can be no legitimate interpretation of the Constitution that can read into the amending power, a power to render one fundamental arm of government into a subservient puppet of the other. If there be such an interpretation, it is against constitutional theory, judicial precedent and the dictates of a democratic system of government.”

The reliable source is, of course, our very learned Attorney General, Prof Githu Muigai in his PhD thesis: Constitutional Amendments and the Constitutional Amendment Process in Kenya (1964-1997): A Study in the Politics of the Constitution

Yet, in 2017, we have MPs, no less, professing “faithfulness to the Constitution” talking about “dealing with the Judiciary.” Because they were told that the IEBC can’t just procure ballot papers without following due process; or that refugees are people with rights too.

It was also the KANU government that removed security of tenure for the Attorney General and the Auditor & Controller General through the Constitution of Kenya (Amendment) Act No 14 of 1986,  which was “yet another step in creating a Presidency that was unfettered by legal impediments and which was intended to dominate all other public institutions.” (As expressed by our very learned Attorney General, as above).
In 2017, The Auditor General is now the subject of a petition submitted to Parliament to remove him from office. This is so soon after a bungled attempt to institute charges against him by the EACC was nipped in the bud by the DPP, that it simply cannot be a coincidence that he is being targeted.
In 2017, there is a Bill seeking amendment of the Office of the Attorney General Act to provide for his removal through the parliamentary process. One wonders why.

At this rate, we will end up being like the banana republic that is the United States of America, whose President:

Makes personal attacks on judges:

Does not understand why the courts exist…

Does not understand due process

Or the merits of the sub judice rule:

We must not become another failed state like America.

Martin Maitha

Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.



About Martin Maitha 16 Articles
Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.