CJ needs a calculated, balanced relationship with Executive

Features Editor Sharon Momanyi. [Courtesy]

Last Friday, Chief Justice Martha Koome chaired her first National Council on the Administration of Justice (NCAJ) forum.

The agenda of the special council meeting was progressive: traffic sector reforms, prison de-congestion, use of virtual courts, clearing of corruption cases as well as issues on children in conflict with the law and those in need of care and protection.

A huge agenda for the CJ’s inaugural meeting with the council.

Yet, what stood out was representation as well as a statement she made. The Law Society of Kenya (LSK) and civil society was not represented at the forum.

For a forum meant to coordinate the administration of justice and reforms in the justice sector in an efficient, effective and consultative manner; this was a glaring blemish.

The official Judiciary of Kenya Twitter handle quoted the CJ thus: “I’ve always thought there’s something very wrong with one arm of the government taking the other to court. It is like a father taking a son to court. It shouldn’t happen. Going forward we shall have a mechanism under NCAJ to resolve our problems.”

The tweet has since been pulled down. I’d rather the whole concept be abandoned, not a single tweet deleted to muzzle the comments of concerned citizens. Also, isn’t it ironic?

Isn’t this the one space Kenyans should be welcome to air their views freely? Shouldn’t the judiciary, which has thrown out many initiatives for lack of public participation, then participate with the public?

It doesn’t work that way? I would also rather have a follow-up tweet with more information, in case we missed the point. It should be obvious that Kenyans are now, more than ever, demanding accountability. Surely, the judiciary must laud this democratic space- each is a mirror of the other’s robustness.

Chief Justice Martha Koome at Sarova Panafric Hotel in Nairobi. July 21, 2021. [Edward Kiplimo, Standard]

I must not miss my point though. That statement by the Chief Justice is worrying. Is the Executive the father and Judiciary the son? What does she mean that “there’s something very wrong with one arm of the government taking the other to court”, that “this should not happen”?

Isn’t this the stuff that separation of powers is made of? Courts must be free to make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests.

The idea that a special judicial mechanism should be put in place to adjudicate cases from the different arms of government, in my view, sets a climate that would allow manipulation and a kid-glove approach for this “son” or “father”.

Granted, the relationship between the judiciary and the executive is complex, both counter-check each other and play roles towards a just and democratic nation.

This calls for a calculated, balanced relationship. A feuding judiciary and executive will hinder proper governance, I get that. But that statement by the CJ didn’t represent this in my mind.

It did not sound like it’s a move meant to enhance judicial support of the Executive, but one that whispers to its ears, “we’re here for you”. I think CJ Koome needs to reevaluate her stance regarding her relationship and that of the judiciary with the Executive.

She owes this re-evaluation to herself, to all the many women awed by her legacy, to democracy and to a just Kenya.