3.0 ENHANCEMENT OF JUDICIAL INDEPENDENCE
Lord Bingham of Council, former Lord Chief Justice of England and Wales has once commented;
???It is a truth universally acknowledged that the constitution of a modern democracy governed by the rule of Law must effectively guarantee judicial independence. So many eminent authorities have stated this principle and there has been so little challenge to it, that no extensive is called for???.1
From the foregoing, it is imperative to indicate that there is need for the Judiciary to be independent so as to be able to administer justice effectively without fear or favor. Judicial officers are supposed to be independent so that they can make judgment impartially without due influence from eternal forces such as social, economical and political influence.
The Judiciary should be allowed to work independently without due influence from the executive arm of the government. The Chief Justice of Kenya observed this; Justice Evans Gicheru during the judicial opening day held at the Kenyatta International Conference Centre in Nairobi.2As a matter of judges being independent, they must only be able to approach an individual case without pressure being put upon them but they must be allowed to work in a pressure free environment.3
Judges and magistrates ought to develop a culture of impartiality and hence to eliminate the spirit of fear and biasness when passing judgments. Enhancement of judicial independence in Kenya requires both institutional and administrative reforms. Some of these salient reforms are discussed here below.
2. Delinking Judiciary From Other Arms Of the Government
As already indicated before the Kenyan Judiciary is linked to both Executive and the Legislative arm of the government in various ways:
For instance, the Kenyan parliament has been empowered to determine the number of the judges of the High Court of Kenya currently Kenya has eight appellate judges and 45 in the High Court4. It is a constitutional requirement that the appellate judges should not exceed 11, while High Court judges should be 150. This is in accordance with the miscellaneous amendment Bill of 2001, which President Kibaki has given an assent hence pending gazettement.
It is only the parliament that has been empowered to regulate the number of judges by enactment of an Act of Parliament to endorse the same. For instance the Miscellaneous Amendment Bill of 2000 that was recently enacted by the parliament has increased numbers of both Appellate judges and High Court Judges to 1 and 150 respectively.
This is a clear indication of the Judiciary being linked to the Legislature. Hence, lacking its independence in hiring of more judges in relation to the higher demand of services.
Currently the backing of cases has been witnessed in our Law Courts and this has been attributes to the shortage of judges.5Since the Judiciary has got no authority employ more judges (more than 50) it has to carry this cross of backlogging of cases at the mercies of the Legislature (the parliament).
If the Judiciary was to be de-linked from the Legislature under the very provision that provides for the limited number of judges it could not be feeling the backlog of cases since it could have the autonomy to hire more judges to do the work based on demand of judicial services.
The Judiciary is supposed to apply legal rules without undue regards to the policy behind the rule. The judicial responsibility does not relate to policy issues directly, and all of them are incidental to the proper operation of the judiciary in the dispensation of justice.6 However, the question that arises is to what extend should courts take note of changes in government and public policy as expressed in legislature trends, changes in social and economic conditions and public opinions7
It has been indicated that various legal systems have resolved this question in favor of the legislative, or the political arm of the state.8 The judge must always strike a delicate balance between being perceived as being subservient to the government and from being seen as ignorant of, far removed from or insensitive to, social and economic dynamics, unless this balance is maintained there is the danger of the administration of justice becoming an entirely political function as in Fascist Communist Regimes.9It is of essence to indicate that in matters of constitutional adjudication this balance is even more delicate as this is a political and not legal process.10 Therefore, it cannot be generalized that even in constitutional adjudication; the Judiciary is applying legal rules within a constitutional system which by definition is itself a political system.11
On the other hand, the largest threat to the independence of the Judiciary is the Executive. Based on the fact that the President has got powers to appoint the Chief Justice who is the Chief Administrator of the Judiciary12The President being the head of the Judiciary should not be given the mandate of appointing the Chief Justice. This reflects an abuse of the separation of powers.
Moreover, the Ministry of Justice and Constitutional Affairs and the office of the Attorney General have been linked to the Judiciary hence causing interference of the administration of justice. This is because these two; the Ministry of Justice and Constitutional Affairs and the Office of the Attorney General are the two departments of the Executive charged with overseeing the application of rules and policies.
In the Papua Guinea Case, it has reiterated that:
???Perhaps the most important aspect of judicial independence is independence from interference, control and direction of the executive that is the Government. It is the Government that has the greatest de facto power in the state. Its ability to interfere is probably greater than that of any other individual or group.13
In this Papua New Guinea case, the actions of the Minister for Justice were contrary to the doctrine of separation of powers and highly undermined the independence of the Judiciary. This can be threat to the rule of law and hence causing social upheavals as it was witnessed in Papua New Guinea Case following the interference of the Judiciary by the Executive whereby there was massive resignation of judges leading to mass break outs by prisoners from prison and criticism from all quarters of the society.
Hence, there is need for the Judiciary to be independent so as to instill confidence in the public and being able to uphold the rule of law. However, the office of the Attorney General in Kenya is by virtue of the functions assigned to it supposed to be independent of the politics of the day as it is taken to be the guardian of the public interest.14
While there is need to maintain checks and balances on the performance of the Judiciary, the Ministry of Justice and Constitutional Affairs in the new political dispensation should be sensitive to ensure that the risk of politicizing the appointment of judges is kept at the barest minimum.15 It is imperative that the Ministry of Justice and Constitutional Affairs exercises a considerable measure of restraint in order to ensure the continued performance of an independent and efficient Judiciary. This is the only way the Judiciary will remain the cornerstone for the maintenance and protection of institutions established by the constitution and continue to be regarded as the common man??™s last hope.16
3. Overcoming Executive Dominance Over The Judiciary
The Legacy of the executive domineering in the operations of the Judiciary in Kenya has deeply damaged the separation of powers and the role of the judiciary as democratic check and balance executive action it also undermines the integrity of the Judiciary itself.17 Principle 1 of the United Nations Basic Principle on the Independence of the Judiciary requires that, ???The independence of the Judiciary shall be guaranteed by the state and enshrined in the constitution or the law of the country. It is the duty of all government and other institutions to respect and observe the independence of the Judiciary???.
The United Nations Basic Principles on the Independence of the Judiciary further provide that neither should there be any inappropriate or unwarranted interference with the judicial process nor shall judicial decisions by the courts be subject to revision.18The Judiciary itself is exhorted to assert its judicial independence in principles. This principles state that the Judiciary shall decide matters before them impartially on the basis of facts and in accordance with the law, without any restrictions, improper influence, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason.???
It is imperative to note that, judicial independence is regarded as a requirement in the dispensation of justice. The principles of the independence of the Judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.19And therefore at this point, we should indicate that a sustained process of political judicial and constitutional reform is necessary to re-establish and institutionalize judicial independence in Kenya.20
The reform of the Judiciary should be carried out with faithfulness to the principles of judicial independence. This would involve all branches of the government of the Judiciary itself. The role of civil society organizations and the media is indispensable, as pubic vigilance and discussion will help to ensure accountability and respect for the rule of law. The Judiciary reform in Kenya is an urgent task in the process of strengthening democracy in the country. This reform seeks to establish a framework for truly independent and accountable Judiciary.21
4. Financial autonomy
The current 1% budget allocation to the Kenyan judiciary is inadequate and should therefore be appropriately and subsequently increased. The funding should meet fully the requirements of adequate salaries and benefits of judges, magistrates and judiciary support staff and provide the necessary resources for capital development, stationery and equipment.22 Financial independence of the judiciary includes the ability of the judiciary to manage its own funds according to its programmers and activities.
It is vital for the Judiciary to establish a competent, efficient and transparent financial management system. It should upgrade its judicial staff managerial capabilities through appropriate training and the employment of qualified staff. The Judiciary should set up the necessary internal structures for supervision and auditing. The final financial accounts of the Judiciary may be subjected to an independent and competent oversight auditing body.23
On the other hand, there is also need for the administrative independence in the Judiciary. Presently, judicial staff is administratively part of the public service.24 The Public Service Commission determines the terms and conditions of service of judges and magistrates. It has been noted that Kenyan Judiciary has taken pro-active steps for statutory recognition that they are an autonomous self-accounting institution, de-linked from the civil service.25
This de-linkage of judicial staff from the public service is necessary component of the administrative separation of administrative separation of the judiciary from the executive branch. As a matter of principle it is imperative to indicate that an independent body, such as the Judiciary Service Commission26 should be responsible for recommending the terms and conditions of the service of judges, magistrates and judiciary support staff, including salaries and benefits.27Additionally, the terms of office and other retirement benefits for judges, magistrates, other judicial officers and the Judiciary support staff should be adequately secured by law.
1The Lawyer Correspondence ???Essentials for an Independent Judiciary??? (The Lawyer,5th March,2004 )14.
2 Adam ,J., ???Leave Us Do Our Work??? (The Standard ,17th February ,2007)
3 The Constitution of Kenya, Section 60, para 2 thereof.
4Kwamboka,E., ???Shortage of Judges to Blame for Cases Balking??? (The Standard ,February 17th 2007)
6 Nderitu, W.,???The Establishment and Role of the Judiciary in Kenya???( (The Daily Nation, April 6th 1998)
8 For Instance the suits position is that a judge should decide as if he were the legislator whenever the finds a gap in the law. Suit Civil Code of 1907 while in Italy, the law provides for the judge to decide according to the general principles of the jurisprudential organization of the state.
9 Supra, note 6.
12 The Constitution of Kenya, Section 6, para.1 thereof.
13 (1979) PNGLR 448. In this case, the Minister for Foreign Affairs had, on 7th June 1997, revoked the entry permit of Dr. Ralph Premedals an American citizen who was lecturing politics at the University of Papua Guinea. The lecturer sought an injunction against the state to restrain his deportation and for the protection and enforcement of his basic rights and the observance of the principles of natural justice. The Supreme Court granted the injunction. Mrs. Rooney the Minister for Justice through her letter to the Chief Justice insisted that the matter for deportation were the prerogative of the state, and that the courts should stay out. The Minister was found guilty of contempt by a five judge bench of the Supreme Court and these was sentenced to 8 months. Later the government exercised its prerogative of mercy under the constitution and released the Minister of Justice. This triggered resignation of various judges, the Chief Justice inclusive.
14 Supra, note 6.
15 The office of the Attorney is assigned the following functions.; Principal Legal Advisor to the Government Prosecutors, Estate Duty, Civil Litigation, Official Receiver, Public Trustee, Custodian of Enemy Property, Wakf Commissioners, College of Arms, Copyright, Legislature Drafting, Drafting and Vetting of Agreements, Matters Related to the Legal Profession, Registration of Adoption, Books and Newspapers, Societies, Business Names, Chattels Transfer, Companies, Legitimated Partnerships, Marriages and Trade Unions.
16 The Kenya Review Commission Report, ???The Advisory Panel of Eminent Judicial Experts??™??™(International Commission of Jurists, Nairobi, May 2002)
18 United Nations Basic Principles on the Independence of the Judiciary, Principle 4.
19 United Nations Basic Principles on the Independence of the Judiciary, Principle 6.
22 Supra, note 17.
25 Written Submission by the Registrar??™s Chambers, High Court of Kenya, 16th December 2004.
26 The Constitution of Kenya, Sections 60.
27Supra, note 6.