Our Judiciary is better off without an Ombudsman

A country’s judicial system is central to the protection of individual liberties and the preservation of the rule of law. That’s why our Constitution secures the authority and independence of courts in absolute terms. It provides that judicial authority shall be subject only to the law and the Constitution, not the control or direction of any person or authority. To guarantee independence of judicial officers, the Constitution expressly bars liability in any action or suit while performing their lawful judicial functions.

The general rules of international law, which are part of the laws of Kenya, acknowledge that the right to an independent and impartial tribunal is ‘an absolute right that suffers no exception’. Given our constitutional history, the meaning of this guarantee is immediately overriding. Often, the state has violated basic principles of law with unbridled impunity and contempt. Thus, the recommendation of a Judiciary ombudsman in the BBI report clouds the aspirations and expectations of Kenyans and therefore, needs a thorough relook.

Ombudsman is a Scandinavian concept meaning ‘representative or proxy’. The term ordinarily connotes roles in diverse and varying contexts. Their latest explosion has given rise to modifications in standards and procedures. Some offices, may be described differently, but still intimately accomplish conventional ombudsman criteria while others wander away from customary standards.

Undeniably, the most priceless ingredient of the ombudsman conception is the aptitude to acclimatise it to an extensive array of contexts. Its extrapolation, nevertheless, has unmasked diverse pitfalls. Many ombudsman institutions have been suggested or fashioned without basic and commonly shared values, standards and accepted guidelines of practice. Still more disturbing is the fact that a good number of offices designated as ombudsmen integrate within their reach, functions that are entirely irreconcilable; indeed, repugnant, with ombudsman roles and duties.

This office is a dedicated agency that examines and resolves complaints concerning the operations of an institution. Improvement of administration is the raison d’être of this establishment. The ombudsman’s most significant attribute is its means to protect individual rights against the excesses of bureaucracies, be they public or private. Since its inception, the ombudsman concept has been embraced by several countries across the globe. South Africa is a good African example.

Classical, organisational, and advocate are the most obvious types of ombudsmen. A classical ombudsman is a creature of law dealing with petitions against the administration. An organisational ombudsman has its foothold either in the public or private sector. An advocate ombudsman serves as an activist on behalf of particular classes of consumers and possible complainants. Thus, ombudsman is often resorted to as a tool to advance the integrity of an institution.

Contemporary Kenyans yearn for a legal system that facilitates people’s participation in a quick, honourable and effective grievance redressal process. Modernisation in court systems design and management, including digitisation of court operations, operationalisation of alternate dispute resolution system and user-friendly courts are all aimed at expediting cases and ensuring the predictability of court processes. All these have to be done keeping in mind the fact that judicial independence is sacrosanct.

Time-honoured tradition

The indispensable standard of judicial independence excludes the power to interfere in the realm and sphere of courts and with their officers. Acknowledging this philosophy, ombudsman norms naturally deplore and deprecate the ability to probe and scrutinise the performance and conduct of judicial officers. This is a time-honoured tradition borne out of the exigencies of checks and balances within the democratic scheme of things aimed at nurturing public trust and confidence in the courts and their processes.

There has been concern regarding the bad blood between the various arms of government for sometime now. The BBI report’s proposal that the president appoint a Judiciary ombudsman simply opened the Pandora’s box. The amendment, if accomplished, would give the Executive the last word in the formation and structure of the Judicial Service Commission (JSC) and by proxy, primacy in judicial appointments process. Alarming as it may, is the very possibility of that office using its investigative powers to wrestle judges who may happen to be unfriendly to the powers of the day. If this amendment comes to pass, Kenya’s democracy would be walking the path of its own destruction.

The JSC is constitutionally mandated under Article 172 to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary. The proposed Article 172A establishes the office of the Judiciary Ombudsman with verbatim JSC powers. In so doing, the report has resolved to create two parallel incompatible power centres.

Our constitutional scheme regards judicial appointments as an integral part of judicial independence, indeed, a basic architecture, of the Constitution that should not be altered in a manner that seeks to derogate its consecrated rank and role. In fact, the Executive is barred from doing indirectly what it cannot do directly. Thus, the will of the Executive to infest and the urge of the legislature to tame the Judiciary by reconfiguring the constitutional culture in its joyful, strange wake should be condemned.

A public perception is being created that the Judiciary can be fixed which is bad for the ethos of democracy. That the Ombudsman will be appointed by the president does not cure the malady that it seeks to heal by ousting the jurisdiction from the Chief Justice. Rare aberrations notwithstanding, judges appoint judges in the Indian higher judiciary, often by seniority and the system works well. Courts have to be completely separated from politics. Arguments such as mounting backlog of cases do not hold water since State impunity contributes to such pendency.

However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. This is not a desert cry, but a very germane warning to us from India’s chief constitutional architect, Dr Ambedkar.

Conceivably, the passions aroused herein are adequate to obtain their universal appreciation; a prolonged practice of not viewing a thing wrong, yields an evident appearance of being right, and produces an inaugural frightening upheaval in justification of habit. But hullabaloo soon ebbs. Wisdom showers fewer proselytes than time. We pray and believe that God Almighty will not forsake ‘We the People’ of Kenya to sink into political obliteration.

-Dr is Nyatundo is a legal scholar in India. Dr Asande is a legal scholar in Kenya.