African Judges have gathered in Nairobi to take stock of their performance and to discuss how to repurpose the institution of judiciary to facilitate continental transformation and progress.
Under their organization, Africa Judges & Jurists Forum, the judge’s inaugural meeting opened by Chief Justice Martha Koome exchanged experiences on promoting independence, growing jurisprudence, promoting electoral justice, and protection of civic space among others.
Supreme Court of Kenya Judges, Justices Isaac Lenaola, Dr. Smokin Wanjala and William Ouko attended the opening day sessions. Former Chief Justices Dr. Willy Mutunga, David Maraga, Supreme Court Judges from all African countries, and eminent jurists attended the conference which is running for three days.
At the opening ceremony, a policy paper; “Upholding Judicial Independence in Kenya: Challenges, Context and Solutions” authored by scholars Tomasz Milej and Evans Oganda for the Friedrich Naumann Foundation for Freedom, was launched.
“Why are judiciaries of African countries the children of a lesser God?” Justice Koome posed, underscoring the acute budget challenges facing judiciaries across the continent.
Justice Koome spoke in the background of the crisis afflicting the Kenyan judiciary, with only a fraction of a budget to execute a huge mandate, and brazen threats of independence by the executive.
She said the silver lining for Africa is that its judiciaries are no longer the passive heirs of the past, and that they are now raring to actively provide the requisite checks and balance against executive and legislature overreach.
She called on her colleagues in the continent to embrace a purposive interpretation of their laws, embrace the benefit of judicial review powers to advance progress, and to enhance accountability, but above all to promote social harmony in communities.
“It’s time for a paradigm shift, so that we do not just sit at the end of the chain, waiting on cases to adjudicate. We must now engage proactively within our communities as connectors and facilitators,” she said.
At the forum, publisher, lawyer and politician Gitobu Imanyara said Chief Justices in Africa play a pivotal role in entrenching the culture of rule of law, and independence of their institutions. He riled Justice Mutunga, and Justice Koome for agreeing to be sworn at the State House, instead of the Supreme Court.
Imanyara spoke at a panel to discuss the FNF paper on judicial independence:
“We are now reaping the fruits of our original acquiescing to the executive. The executive will never come to terms with the fact that their word is final, as long as you continue taking your oath in the State House,” he said.
FNF Senior Project Manager Judie Kaberia enumerated the various attempts, in all their forms, to weaken judiciaries, and to keep them subservient to the executive.
“Even in the face of the challenges, the Judiciary has stood firm in many instances. It has ruled on behalf of the people, not the powerful. It has protected the socio-economic well-being of citizens, even when such decisions have angered those in power,” she said.
She said the fight for judiciary independence is not simply about safeguarding the courts, but about safeguarding democracy itself.
“A judiciary that cannot stand apart from political influence cannot protect the rights of the most vulnerable. A judiciary that is morally polluted cannot deliver justice to anyone,” she added.
Justice Wanjala tipped colleagues on handling presidential petitions to focus on case management, to frame issues early, publicize the issues and proceedings, and push parties to state their claims.
“Technology is increasingly becoming an enabler of justice. What is important right now is to guard against use of technology as a saboteur of electoral justice,” Dr. Wanjala advised.
Uganda’s Supreme Court Judge Justice (Prof) Lilian Tibatemwa-Ekirikubinza urged colleagues to earn executive respect by standing firm with the law, and avoiding bootlicking the executive.
“The executive respects you when you are independent. If you think that bootlicking is what will earn you respect then you are terribly mistaken,” she said, to a wild applause.
Justice (Prof) Oagile Key Dingake, a Judge of Supreme and National Courts of Papua New Guinea called for closer collaboration between judiciary, civil society and media. Justice Dingake who also sits at the Special Court for Sierra Leone asked judges to stand together in times of assault of independence.
“I saw Justice Maraga addressing a very lonely press conference, and vowing to defend rule of law with his blood. I was far away, but I knew he had planted a seed,” he said.
During the opening session, judges discussed the importance of demystifying their place in society, importance of judges calling out colleagues when in the wrong, and importance of getting it right in selection of judges.
