NAIROBI, Kenya, Mar 23 – A statement associated with the leadership of the Judiciary and appearing in the press in the last couple of days suggests that the Executive through the Ministry of Justice, National Cohesion and Constitutional Affairs is seeking to ‘influence’ or ‘control’ or ‘ interfere’ with the Judiciary.
The statement also particularly accuses the Minister for Justice, National Cohesion and Constitutional Affairs for subverting the swearing of judges in December 2006 and for failing to push through the Judicial Service Bill.
These allegations, coming from the leadership of the Judiciary, are serious and it is necessary that they should be clarified.
First, judicial independence the world over presupposes that Judiciary has the autonomy to make decisions free from the influence of other arms of government, litigants as well as pressure groups.
Increasingly, it also means that the Judiciary has financial and administrative autonomy to run its affairs. The essence of this doctrine is to ensure that the law is enforced impartially, consistently and efficiently.
The Judiciary does not exist to serve itself, but the people in whose name it is established.
The Judiciary cannot use this principle to shield itself against criticism; incompetence or to forestall the implementation of reforms, which the people of Kenya are yearning for.
Secondly, the Minister for Justice, National Cohesion and Constitutional Affairs is responsible to the President and ultimately to the people of Kenya, for policy on the administration of justice. In the organization of Government, the Ministry is also the Judiciary’s link with Cabinet and Parliament.
As far as policy direction is concerned, the Ministry and the Minister is therefore within their mandate to question the efficacy of the Judiciary in the administration of justice and to advocate for policy changes. To question the manner in which the Judiciary is running is not to interfere with its independence but to offer feedback that is vital in the process of reform.
A judiciary that is committed to the administration of justice is responsive to public criticism not just as a measure of good institutional management, but also as a realization of the organic need for the judicial accountability as the corollary of judicial independence.
The Ministry and the people of Kenya will therefore continue to criticize the Judiciary where it fails and it is up to the Judiciary to respond to these criticisms by demonstrating real action.
Thirdly, the statement that the Minister for Justice, National Cohesion and constitutional Affairs came in the way of the swearing in of judges in December 2006 is extremely dishonest.
The Chief Justice is aware that the swearing in of the judges was held back because the integrity and competence of some of the nominees was brought to question. As everybody knows, judges in Kenya are appointed by the President on recommendations of the Judicial Service Commission. In this process, the President is not a rubber stamp.
He has the constitutional mandate to ensure that those who are appointed to office are suitable. Like every other Minister, the Minister for Justice, National Cohesion and Constitutional Affairs, under which the Judiciary falls, has the responsibility of advising the President on these matters.
The appointment of judges is one area that legal scholars and Kenyans at large have advised should be reformed. Unfortunately, the Judicial Service Commission has turned a blind eye to this very critical aspect of ensuring professionalism is maintained in the Judiciary.
In 2007, I consulted with the Law Society of Kenya and the Chief Justice and proposed that criteria for sourcing judicial appointees and especially judges be developed. The Law Society of Kenya working with my office and the Law Reform Commission worked on draft criteria and forwarded it to the Chief Justice.
The Chief Justice and the Judicial service Commission ignored the proposal and continue with business as usual. A glance at appointments in the Judiciary reveal favouritism, cronyism and incompetence.
Indeed, over the last three weeks, information that a certain Cabinet Minister was working for a person from his village to be appointed judge was brought to my attention.
This is one of the many instances that has convinced me and those of the same view, that there is need to establish a transparent and competitive process for the appointment of judges.
Finally, the Judiciary is under illusion that the demand for judicial reforms is political and a cloud that will inevitably pass by. How wrong the Judiciary is. The reform of the Judiciary is a serious and urgent matter for the people and the Government of Kenya.
The Judiciary needs to hear the voice of the people loud and clear: the people have lost faith in this institution and cannot wait any longer. The Judiciary must reform in order to meet the expectations of this people.
This is a necessity, not a choice. Reform is imminent and those who stand in its way will have themselves to blame.
The rule of law is in jeopardy and the Government and the people of Kenya will not continue to stand and watch as things run as usual.
The Judiciary must get down to work and make changes now. If it does not the people shall.
The author is the Minister for Justice, National Cohesion and Constitutional Affairs.