In Summary
  • The bashing of the Judiciary in social media, is not part of a genuine fight against corruption. It looks more like a political campaign to manipulate the outcome of that fight; to get ''my man or my woman'' in there.
  • Judicial independence is a huge challenge in all democracies, and more so in young ones, where powers are still growing their muscles; institutions are weak and success or failure is personalised.
  • The justice process is a mirror of our sincerity as a society. We cannot expect perfect justice in a society where lying and stealing have become the standards of political, financial or social survival.
  • The task ahead is huge. In the building of a coherent body of jurisprudence, the challenge is not just independence from the executive, which is currently under attack, but also independence from cartels and personal ignorance.

The bashing of the Judiciary in social media, is not part of a genuine fight against corruption. It looks more like a political campaign to manipulate the outcome of that fight; to get ''my man or my woman'' in there.

The campaign aims at character assassination. The fighters personify the problem and forget the process, which involves prosecutors, lawyers, police and the public.

After all, the justice process is a mirror of our sincerity as a society. We cannot expect perfect justice in a society where lying and stealing have become the standards of political, financial or social survival.

The legacy of Mutunga and Maraga

Chief Justice Mutunga and Chief Justice Maraga defined their tenure by giving due respect to ''judicial independence''. After all, as Senior Counsel Paul Muite says, ''a genuinely independent, competent and corruption-free Judiciary is what so many Kenyans sacrificed for.''

This ''independence'' has put the Judiciary on the spot, in the limelight. It has put an end to the ''control'' the executive had traditionally exercised on the courts. Too often, chief justices were summoned to State House and given directions on this or that matter.

Judicial independence is a huge challenge in all democracies, and more so in young ones, where powers are still growing their muscles; institutions are weak and success or failure is personalised.

Judicial independence from executive influence is essential for justice to function. Perceptions are an important part of this, and this suspension has greatly harmed that perception. For example, the 2007-2008 post-election violence was fuelled by the perception that our courts were not independent from executive influence and going to court was not an option. Five years later, in 2013, the opposite happened. Although the court still sided with the wishes of the executive, the perception of independence of the Supreme Court encouraged leaders to accept whatever had happened and ''move on''.

Again, that same perception pushed the executive to ''accept'' the nullification of the results of the August 2017 election. The Court’s position may seem uncertain, but it is not. It means that no matter who likes it and who does not, if an election is not properly run then it will be nullified…and that is certain.

Independence from the executive does not mean perfection

But independence from the executive does not mean independence from cartels, bribes or ignorance. Independence from the executive brings to the fore the best and the worst in every judge, and this is where the vetting, appointment and disciplining of judges play an essential role.

When we say ''the judiciary is corrupt and useless'' we are simply trying to get political or financial advantage from a complex situation. We need to look at three key issues, which are the responsibility of parliament and the Judicial Service Commission (JSC).First, the law, which is under the control of parliament, and where there are contradictions and inconsistencies. Second, the appointments, which are controlled by the JSC. How are the judges chosen? What criteria are used and what have the vetting boards been looking at? The code of conduct or the judge’s character and why? Third, disciplining, also under the JSC. Judges and magistrates should be accountable for their behaviour and decisions.

Today, in Kenya we have discipline and accountability challenges. In the rush to pass the Code of Conduct and Ethics of the Judiciary, we ended up with a code that describes all type of offences but prescribes no punishment.

If judges are not properly chosen and disciplined, they become accountable only to themselves and, in some cases, they are prey to cartels that may coerce or bribe them, to social or media pressure, and to their own ignorance of the law (culpable or innocent).

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