Kenya’s president, William Ruto, began the new year in fighting mode with a tirade against the judiciary, accusing it of being corrupt and having been bought off to prevent the success of his (Ruto’s) public housing and other programmes.

Just a couple of days later, he relaunched his attack, saying the judiciary was ‘riding on impunity’ and adding that the executive would defy court orders that halted his development agenda.

That presidential attack was quickly backed up by some of Ruto’s supporters in parliament.

And when the legal community responded, there were further harsh words from the president’s official spokesperson who said that Ruto’s ‘push for judicial reforms’ was ‘unstoppable’, and chastised the Law Society of Kenya for its criticisms of Ruto over his tirade.

‘Judicial corruption’

In his attacks, Ruto said while the judiciary may be independent, that doesn’t mean it was ‘too important not to be questioned’ and that it still had to answer to the people of Kenya.

‘I mean it,’ he said. ‘We are going to deal firmly and decisively to root out corruption in the judiciary.’

What sends chills down the spine of all judicial-watchers is the memory of an earlier era in Kenya when the courts were effectively puppets of the government, and did its bidding.

Since then, major political and constitutional changes have seen the judiciary reshape itself, get rid of the worst of those on the bench who were government puppets, and take a strong stand for its own independence under the constitution.

‘Emboldened by the constitution’

This concern about a return to the past when the judiciary was the servant of the executive was clearly detectable in the official statement issued by the judicial service commission (JSC) in response to the attack by the president and his supporters.

Signed by the chief justice, Martha Koome, in her capacity as chairperson of the JSC, the statement said that the judiciary was ‘emboldened by the constitution’ to protect its independence and that this was critically important ‘to the stability ad democratic character’ of Kenya.

Given that background, the JSC was concerned that the judiciary had been ‘subjected to public criticism and vilification for issuing orders that are perceived to be against state programmes and policies.’

‘The JSC wishes to reaffirm the independence and integrity of the judiciary as a co-equal arm of government, as enshrined in the constitution and urges all judges and judicial officers to continue performing the judicial duties without fear or favour.’

Adherence to the law required by the constitution

The statement also pointed out to ‘the state and public officers’ that the constitution required the state to ‘ensure respect for the law and adherence to the law’. And where someone obtained a court order against the state that was ‘deliberately ignored or disobeyed by state officials, the right of access to justice is undermined because it fatally attacks the effectiveness of the legal system on which ordinary citizens rely to have their rights and legal duties enforced.’

It further assured Kenyans the any allegations about judicial misconduct or corruption would be ‘dealt with firmly and swiftly’ in accordance with the constitution, and it pointed to the record of the JSC as a body that took action against any judicial officer found to have breached the judicial code of conduct and ethics or to have engaged in corrupt practices.

Responses support judicial independence in Kenya

Despite government criticism of its involvement in the dispute, the law society, under its president Eric Theuri, had planned a protest at the supreme court, timed for Friday, 12 January.

Next to express support for the beleaguered Kenya judiciary was the East African Magistrates and Judges Association which said that the Ruto government should have used ‘legal channels’ to deal with his concerns.

‘Any concerns or disputes must be handled through established legal channels, respecting the principles of due process and the separation of powers.’

Strong support for the Kenyan judiciary has also come from three Commonwealth legal bodies. The Commonwealth Magistrates’ and Judges’ Association, the Commonwealth Legal Education Association and the Commonwealth Lawyers Association issued a joint statement on 11 January, saying they were ‘deeply concerned’ about the attacks on judicial independence in Kenya, following judgments by the courts in litigation challenging government decisions.

Courts the ‘guardians of justice’

‘We urge the government of Kenya to respect the authority and independence of the judiciary and ensure that court decisions are respected and complied with and that due process is followed in line with Kenya’s constitution and its international obligations regarding any investigation of judicial officers for alleged corruption.’

The three associations said that a democratic state based on the rule of law could not function ‘if the government and other state authorities ignore their constitutional obligations and fail to abide by court orders.’

‘A court is the guardian of justice and the cornerstone of a democratic system based on the rule of law. If the state, an organ of state or a state official does not abide by court orders, democracy will be gravely undermined.’

‘Cease public attacks on the judiciary’

Kenya was committed to the shared values and principles of the Commonwealth, central to which were ‘democratic principles including respect for the authority of an independent and impartial judiciary. Any measure on the part of the state authorities which is seen as eroding the authority and independence of the judiciary, is a matter of serious concern.’

Finally, the association urged Kenya’s government and public authorities to ‘respect the rule of law and comply with orders of the courts, cease making public criticism and attacks on the judiciary and ensure that any process of investigation is fair and free from undue influence.’