Turbulence in Judiciary bad for rule of law

By APollo Mboya

Everyone proclaimed that with the Constitution of Kenya 2010, the epoch of good governance had landed in Kenya. It was therefore expected that the management of public affairs would be done through rational institutional arrangements.

The Constitution among other things limited executive power and structured decision-making in the country through checks and balances. In Chapter 10 of the Constitution relating to the Judiciary, the adjudicative organ was reminded that judicial authority is derived from the people and vests in and shall be exercised by these organs as guided by the law. The overall principle describing this new mode of governance is constitutionalism.

Guiding steps

The institution of the Judiciary that was previously feeble and riddled with corruption was empowered distinctly by the Constitution. The intention was that in this institution we had a detailed scheme of guiding-steps for its actions: jurisdictional rules; procedural rules; natural justice; substantive limits defined by statute law and limits imposed by the constitutional law among others.

We all believed that the moment the epoch of constitutionalism came, the rational path of governance became that which is defined by the judicial mandate. Of the three conventional arms of government, the one which has tremendously benefited from the changing governance structure is the Judiciary. Alexander Mordecai Bickel, law Professor and expert on the United States Constitution has described the Judiciary as “the least dangerous branch” of the government because he believed that, subjected as it always is to rule, procedure and jurisdiction, the Judiciary is never, in and of itself, an inherent threat to the rights of the people.

I am beginning to doubt the hypothesis of the professor in relation to the Judiciary in Kenya. I take this position on account of the transactions going on within the Judicial Service Commission which by extension affects the Judiciary.

Section 47 of the Judicial Service Act, 2011, provides that the Judicial Service Commission (JSC) may make regulations for the management of issues of conflict of interest and the administration and management of the services and facilities of the JSC for the discharge of judicial functions. It may also institute preliminary procedures for making any recommendations required to be made under the Constitution. Further, it may mainstream gender and regional equity in the Judiciary and facilitate the orientation and training of judicial officers and staff. Crucially, it may also manage its financial procedures.

The regulations made under this section are required to be presented to the National Assembly for debate and approval before they take effect. The current governance turbulence in the Judiciary can be traced to the fact that these regulations have not been put in place.  The absence of regulations is what is perpetuating speculation on the dealings within the JSC. The financial procedures have not been put in place thereby leaving a vacuum for the JSC oligarchs to spend the taxpayers money allocated to the Judiciary in any way they deem fit and still erroneously argue that in the performance of their judicial duty, they are not subject to the control or direction of any person or authority.

Camouflage

The preliminary procedures for making any recommendations required to be made under the Constitution are not in place leaving room for the JSC to camouflage its decisions and recommendations, including on those to be appointed judicial officers, without sharing the criteria for those decisions. The JSC has not bothered to put in place regulations on administration and management of the services and facilities of the Commission for the discharge of judicial functions leaving room for non-transparent procurements of facilities on behalf of the Judiciary.

The regulations for mainstreaming of gender and regional equity in the Judiciary are missing thereby leaving the JSC to recruit whoever they want, no matter the gender and regional disparity or imbalance. This recruitment does not only involve the judicial staff but also the support staff. The regulation on orientation and training for judicial officers is not in place thereby leaving room for inequitable training of judicial officers and doling out of training opportunities through a reward system to those who may be close to the judicial oligarchs. Lastly, there are no regulations to manage conflict of interest among the members of JSC leaving room for suspect dealings in the appointment, discipline of judicial officers and certain litigation before the judicial officers.

Speculation is a human characteristic, but I will leave the issue of whether it is “good” or “bad”, given the circumstances that we now find ourselves in following the forced leave of the Chief Registrar.

It is judicial dishonesty to expect other arms of the government to inculcate good governance only for the JSC to look backwards and make its decisions shrouded in mystery with hidden facts. One of the features of speculation that I find fascinating is how the perceived truths of those speculations can turn out to be true. I expect the JSC and the Judiciary to walk the talk.

 

The writer is an Advocate of the High Court of Kenya.