Kenya’s judicial leaders issue strong re-statement of judicial independence

22 February 2024 · Carmel Rickard

Judicial independence in Kenya has been under some serious threats recently, particularly from the president, William Ruto, and other members of government. Threats to judicial independence are a problem in other countries as well and the judiciary sometimes seems to take refuge in silence on this issue. However, this week, following a consultative meeting involving the heads of all the country’s courts, Kenya’s top judges issued a wide-ranging statement, dealing with judicial independence, as well as claims of corruption in the judiciary, and ways in which the courts could improve to offer a better service to the public.

Read statement

https://twitter.com/CJMarthaKoome/status/1760267861874909438

The important new statement comes after a meeting last week between the heads of Kenya’s courts. It’s signed by the heads of the ‘superior courts’ – the supreme court, the court of appeal, the high court, the employment and labour relations court, and the environment and land court.

In its very first sentence, the document ‘affirms’ the constitutional provision that the ‘exercise of judicial authority shall be subject only to the constitution and the law, and the judiciary shall not be subject to the control or direction of any person or authority.’

But it also acknowledges that while the constitution protects the ‘decisional autonomy of judges’, there was a need for the judiciary to ‘engage in constructive dialogue with other branches and agencies of government to address and resolve challenges that arise in the administration of justice.’

Time-sensitive matters

The statement further acknowledges problems that have been causing concern to the public about the justice system, among them, delays in dealing with ‘time-sensitive matters’. Such cases should be given priority, the heads of court say.

Against the background of acknowledged awareness about these and related problems, they go on to make a number of resolutions, related to five categories.

First, is a commitment to streamlining court processes, with time-sensitive cases given priority, even where this means an exception to the first-in first-out practice at the court of appeal. The judges commit to a review of practice and procedure rules so that new timelines can be introduced.

The chief justice has also undertaken to implement regular rotation of judges so that all members of the bench have the opportunity to serve in stations and divisions ‘that handle high numbers of public interest matters. Rotation will also help promote the ‘general wellness’ of judges, according to the statement, and will ‘ensure that judicial decisions are not personalised’.

‘No adjournment’ policy

The second commitment relates to active case and judgment management. One part of this commitment is that the superior courts ‘will enforce the “no adjournment” policy’, with litigants and others being urged to ‘embrace’ this policy, since adjournments will now be granted only in ‘the most exceptional circumstances’. This commitment involves issues like ensuring that each court station will have an adequate number of interpreters.

Next, the heads of court deal with the fight against corruption.

‘The judiciary abhors corruption in all its forms and is committed to promote and enforce the principle of zero-tolerance’, the statement reads, and among other strategies, pledges to improve communication, so that there are ‘regular updates on processing complaints to deal with real or perceived corruption in the judiciary.’

Vilification and criticism of judges

The fourth category relates to ‘upholding the independence of the judiciary while harnessing inter-governmental collaboration’. The judges refer to ‘continued threats to the independence of the judiciary through vilification and criticism of judges, disobedience of court orders and denial of adequate resources’, and urge Kenyans to ‘continue supporting the independence of the judiciary’.

Then come some key remarks on this issue: ‘All Kenyans, state and public officers, state organs and agencies are required to respect and obey court orders in recognition of the constitutional entrenchment of the rule of law and democracy as a national value and principle’.

The heads of court explain the proper nature of the relationship between the judiciary and other arms of government and commit themselves to maintain it: The ‘judiciary will collaborate and work with the other arms of government in the spirit of interdependence and reciprocity. However, the other arms of government must respect the independence of the judiciary.’

Challenged by under-funding

The judges add that there should be more interaction between the judiciary and other arms of government on the needs of the judiciary, but that this communication must be done in such a way that it doesn’t ‘interfere with the independence of the judiciary in the spirit of cooperative dialogue.’

Since the judicial function is a ‘core constitutional mandate’ it should be adequately funded, they say.

But in reality, however, the judiciary continued to be challenged by under-funding. This meant there was a need for ‘continued engagement with other actors and stakeholders to pursue constitutional and legal amendments to ringfence the budget of the judiciary and streamline the operations of the judiciary fund.

There’s also an intriguing, though unexplained, reference to the need for a review of the Judicial Service Act and other laws, ‘to clarify the mandate of the judiciary’ in relation to the judicial service commission and alignment with the constitution.

In their final section, the heads of court endorse the implementation of technology that will allow ‘real-time monitoring’ of court activities so that decision making can be informed by proper data.

Finally, they go on to commit to an annual meeting of heads of court.

Strong, measured statement, balanced and responsive

The document is an interesting response to the pressure on the judiciary by the government, and the president, William Ruto, in particular. It firmly restates the principle of judicial independence and explains how it derives directly from the constitution, of which it is an essential element. It further outlines some key problems in the way of proper judicial functioning, like inadequate and dependent funding, and says these issues need to be resolved.

It is intriguing that the statement specifically mentions the need to ‘rotate’ judges, not just for their own professional development, but to prevent what it refers to as the ‘personalising’ of judgments. Given the context of this commitment to rotation, it sounds as though the heads of court see it as lessening personal pressure that certain judges might feel from outside the judiciary as a result of being in the same position for some time.

But the statement also flags key irritants for litigants, like delays in delivery of time-sensitive decisions, and proposes ways to reduce these problems.

In other words, it is a strong, measured statement, balancing an unwavering demand that judicial independence be respected, with reflection on the shortcomings of the judicial system, coupled with responsive commitments to practical steps that will address those problems.

Carmel Rickard

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