NAIROBI, Kenya, Apr 12 – A new report by Journalists For Justice (JFJ) in collaboration with the International Commission of Jurists (ICJ) has singled out political polarization and budget cutbacks as key impediments to judicial independence.
The publication captioned Sixty Days of Independence which takes note of the unprecedented decision by the Supreme Court to annul the August 8 presidential election recommends a review of the Executive’s role in the appointment of judges in order to safeguard judicial independence.
“There is need to relook at the role the Executive plays in the appointment of judges and debate whether or not the insulations in place are sufficient to guarantee independence,” the report published on Thursday notes.
Judges of superior courts – Supreme Court, Court of Appeal, and High Court – are appointed by the President in accordance with recommendations by the Judicial Service Commission which comprises 11 members with the Chief Justice as Chairperson.
Members of the judicial panel include a representative of the Supreme Court elected by colleague judges, a Court of Appeal representative, High Court representative, and a magistrate elected by the members of the association of judges and magistrates.
The Attorney General, a Public Service Commission representative and two persons of either gender representing the public are the other members of the commission that are appointed by the President.
The Law Society of Kenya (LSK), the statutory body responsible for the professional regulation of advocates, elects two advocates of either gender to the JSC.
The current structure of JSC as envisaged in Article 171 of the Constitution has been faulted for giving more latitude to the Executive to tilt the numerical strength of the panel to its favour.
JFJ and ICJ also called for the re-examination of the capacity of the judiciary, especially the Supreme Court, in order to empower courts to deal with political actors who undermine elections.
“The country needs to ask itself if the court has the capacity to face off with political players who interfere with and pollute elections,” the non-State agencies recommended in the newly published report.
The JSC was also cited for being incoherent in the manner in which it handles petitions against judges, the report calling for the establishment of a clearly-defined procedure for processing petitions against judges.
“The differentiated treatment of petitions against judges in the absence of transparency undermines accountability and suggests that the Judicial Service Commission needs to establish a clear and predictable pathway for processing complaints and petitions against judges and judicial officers,” the report recommended.
Also recommended in the report is the need for courts to be even-handed while dealing with petitions and applications lodged by the civil society amid accusations of an institutionalized bias against non-State agencies.
“The judiciary generally, and the Supreme Court in particular, needs to review its posture towards civil society. The court’s attitude towards civil society has not been even-handed. There appears to be an institutionalized bias against civil society, which is societal in the Kenyan context.”
The report cited the dismissal applications by civil society for joinder as amicus curiae in the 2013 and 2017 presidential petitions, a case in point being the rejection of Prof Yash Pal Chai’s application in the 2013 presidential petition.
Speaking during the launch of the report, former Deputy Chief Justice Nancy Baraza called for deep introspection at the JSC will urging the panel to safeguard its independence.
Baraza who resigned in October 2012 following suspension in January the same year over a scandalous drama at a city shopping complex took a swipe at the Commission for adopting what she termed as an inconsistent position on conduct of judges of superior courts.
“The behavior of judges should be above suspicion and where there’re indications that the contrary is happening that should be cause for concern. If you set standards then you should follow them through so that you’re not seen to be favoring some parties and victimizing others. The standards should be uniform in application,” she told Capital FM News alluding to recent allegations against Supreme Court Justice Mohammed Ibrahim who was accused of threatening a security guard at his estate with a gun, a complaint which was later dropped.
The ex-DCJ also faulted a recent move by LSK to review requirements for members seeking election to represent the body at the JSC terming decision as unfortunate.
Baraza said the decision to remove a requirement for clearance of candidates by the Higher Education Loans Board and the Kenya Revenue Authority will compromise the caliber of members elected to the Commission.
“Persons who are elected to serve at JSC should be persons above reproach, persons of integrity, and persons of intellectual capacity. That LSK can vote to do things differently from what we expect of other Kenyans is in violation of Section 4 of the Advocates Act,” she said adding contentious decision taken ostensibly to clear Prof Tom Ojienda who is seeking re-election to the top judicial panel will degrade public confidence in the LSK.
“When we lower standards for ourselves then we’re sending signals to the entire country. We have standards for integrity and when we as lawyers think we can lower those standards it is not good for our democracy. Serving at the JSC is a noble calling and shouldn’t be seen as a contest between factions in LSK.”