Radical proposals to reclaim judicial independence

A policy paper tabled at the All Africa Judges and Jurists Summit held in Nairobi this week has proposed radical proposals to secure the independence of Kenya's judiciary. 

The paper, “Upholding Judicial Independence in Kenya” published by the Friedrich Naumann Foundation and authored by legal scholars Evans Ogada and Prof. Tomasz Milej proposes a set of policy and legal reforms, and change of mindset, as key anchors to an independent judiciary. 

At the core of the recommendation is a proposal to amend Article 171 of the Constitution to alter the composition of the Judicial Service Commission (JSC) for “more balanced, diverse and representative” membership. 

The paper says the current JSC composition which comprises of Chief Justice, a Supreme Court Judge, a Court of Appeal Judge, a High Court Judge, a Magistrate, the Attorney General, two advocates, a Public Service Commission nominee and two non-lawyers is too elitist to deliver. 

“It lacks the range and depth of membership necessary to promote social ownership of the judiciary,” the paper says. It says even the two non-lawyers have tended to be senior civil servants or prominent personalities. 

Because of its elitist nature, people often do not relate with JSC. The paper also proposes a delinking of the judicial Ombudsperson from JSC and for the office to be created as a “neutral, standalone office.” 

The office is responsible for receiving and handling complaints from the public against the Judiciary, judicial officers, and staff, as well as complaints from employees. The paper argues that placing this office within the Office of the CJ as an administrative unit raises significant structural and independence concerns. 

It says that in contemporary liberal democracies, Ombudspersons are distinct from government departments and other branches they investigate, although they are considered public sector entities. 

“It contradicts the fundamental principle of ombudsman independence from the entities they oversee. Such an arrangement could create conflicts of interest, but also raises significant legal and practical concerns regarding their effectiveness and legitimacy,” the paper adds. 

The paper wants the judiciary to be more firm in reinforcing its independence from political and other external pressures, including punishing contempt. This, it says, will promote public confidence in the courts and rule of law. 

It says the country needed to begin taking separation of powers seriously, and for parliament to reassert its position in relation to the Presidency. It recommends a greater alliance for defending human rights saying this cannot be left solely to the Judiciary. 

“Parliament should be an advocate for judicial independence,” it says. 

It wants the country to promote public awareness of the importance of judicial independence, and for the civil society and media to lead in this. 

Another key recommendation is for players in the justice sector, including lawyers, to bring law closer to people. As part of this, they should simplify legal language, use plain language in legal documents and undertake more community outreach programs. 

The paper quoted a Tweet from a prominent advocate in which they prided themselves in reading Shakespeare, subscribing to New York Times, listening to Vivaldi and deriding the lowlifes of maids and petty scam bags. 

“Unfortunately, there have also been cases of lawyers making statements that alienate the legal profession – and, by extension, also the Judiciary – from society,” it says. 

The paper wants the judiciary to develop robust anti-corruption measures, establish internal oversight mechanisms, whistleblower protections, and transparent disciplinary processes. 

The paper celebrates the gains Kenya’s judiciary has made thus far, including standing for Kenyans against executive overreach. It notes that the judiciary has perception challenges, including perception of political manipulation and judicial collusion for self-preservation, which it needs to work on. 

It also illustrates how corruption, political interference, threats of budget cuts (and actual cuts), and blocked appointments compromise the impartiality and integrity of judicial proceedings, judicial officers, and the Judiciary. 

The paper highlights how political pressures can undermine judicial independence while also recognizing the efforts of honest judges striving to maintain their autonomy in a challenging environment.