Hands off the Judiciary: How politicians conduct unbecoming imperils our democracy

The increasing attacks by both major political parties and candidates for political office are diminishing the independence of the Judiciary and, equally important, the public’s confidence in it. Thus, the distinction between fair criticism of judges and intimidation of them is an important one. What is taking place in Kenya is intimidation and threats.

The judicial power is donated by the people of Kenya and the exercise of such authority is vested in the judicial officers. The Judiciary is not a junior partner in the principle of separation of powers. The Chief Justice may not be the Commander in Chief of the defence forces or the custodian of the exchequer, but the powers bestowed upon him by the people of Kenya are meant to provide checks and balances on the other arms of the Government.

So far Chief Justice David Maraga has done well in the execution of that office since he took over. There is no evidence that either he or judges are guilty of abuse of office.

The independence of the Judiciary has not just been guaranteed by the Constitution but other international instruments such as the UN Basic Principles on the Independence of the Judiciary (1985), the Commonwealth Latimer House Principles, and the Bangalore Principles on Judicial Conduct, of which Kenyan is a signatory and active participant. Therefore, the current trend is worrying because these attacks dents our international image.

Certain senior politicians find the Judiciary an easy target to to try to energise their flailing campaigns. For example in the United States of America, as Senator Bob Dole's presidential campaign in 1996 floundered, he looked for a theme to revive it. He decided to attack the judges appointed by President Clinton.

Even though Dole had voted to confirm 98 per cent of Clinton’s judicial nominees, and most observers found Clinton’s nominees to be moderate to conservative, Dole claimed that the judges were dismantling the “guard rails that protect society from the predatory, the violent, and the anti-social elements in our midst”. These assertions were not not untrue and baseless, they were also outrageous.

The most obvious example of irresponsible criticism and demagoguery is a distortion of a judge’s record or decision in a case. It is irresponsible for critics of the courts to argue that only results matter, without regard to the legal principles that govern judicial decision-making.

It is irresponsible to attack a judge for the purpose of having him transferred or to intimidated from hearing certain cases which a particular political party is not comfortable with. It is equally irresponsible to attack a judge for the purpose of bullying those who remain on the bench into submitting to a particular course of action. I must also add that it is clear that those who criticise irresponsibly often focus only on the result of a single decision without considering the underlying facts and legal principles that governed the judge’s ruling in the case.

In the current political climate in Kenya, judges undoubtedly realise that by upholding the Bill of Rights in controversial cases they may be signing their own career death warrants or attracting the wrath of political lawyers, who depend on handouts from politicians without weighing the consequences of their actions on the integrity of independent institutions.

The effect of all these attacks is that they erode the public confidence in the Judiciary. Ultimately, once a judge has compromised his or her oath as a judge by refusing to enforce the law in order to stay in office, both the judge and the court have been irreparably diminished and damaged.

An example of the leadership that is missing in the Republic of Kenya was provided by then President Nelson Mandela of South Africa. When the Constitutional Court of South Africa struck down a law delegating broad powers to his administration, Mandela immediately made a public announcement that the court had spoken and its decision must be implemented.

Unless we heed this lesson, some may applaud the results reached by the courts in the short run, but justice will not be done. Our leaders must uphold the rule of law by following such noble examples.

It is, therefore, in order to commend Chief Justice Maraga for standing up for the independence of the Judiciary and individual judges. He must be supported to continue on that path because that is the journey to protecting our nascent democratic standing as a county. He will leave a powerful legacy of a strong Judiciary that will not only be a beacon of hope for millions of Kenyans but also all those who love and champion the fair administration of justice. Justice must be served to all Kenyans irrespective of their status in life.

Mr Mwamu is a former president of the East Africa Law Society and an advocate of the High Court of Kenya