Independence of the Judiciary at risk after visiting the Executive

Chief Justice Martha Koome and President William Ruto at State House Nairobi on January 22, 2024. [PCS, Standard]

A few months ago, the Judicial Service Commission, the independent body that chooses our judges from the Supreme Court downwards, paid a courtesy call on President William Ruto and appraised him of the state of the administration of justice in the country.

Then, the JSC, as part of the Forum of the Constitutional Commissions and Independent Offices, “held a meeting with Deputy President Rigathi Gachagua to enhance co-operation with the Executive in facilitating efficient delivery of services to Kenyans. “The main objective [of this Forum] is to buttress tripartite configuration of Government…”

This is a wrong course for our Judiciary. All this is unconstitutional. The Judiciary has to be independent of the Executive. And the Judiciary has to show that independence.

That is what being a Chief Justice and a Judge is about. Because the Judiciary is where Kenyans go to get justice against the Executive and its administration, and against the Legislature if they pass unconstitutional laws.

The people must trust that the Judiciary is, and can be seen to be independent of the President, his Deputy and the Legislature. Instead, Kenyans are seeing the opposite.

Kenyans know exactly what being close to the Executive means in our public life. It means doing what the Executive tells them to do. This is alright for Ministers and the Cabinet. It is not alright for the JSC and the Chief Justice.

This is against the Constitution and the principles of the Rule of Law. The latter imposes a limited Separation of Powers between the Judiciary, the Executive and the Legislature.

Yet the JSC chaired by the Chief Justice act as if there is no Constitution requiring both a show and reality of independence. And as if there is no doctrine of the Separation of Powers in place. Yet the Chief Justice and the JSC have taken an oath to uphold the Constitution and the Rule of Law.

Further, the JSC chaired by the Chief Justice are acting against the rules of Natural Justice by working so closely with the Executive “to buttress tripartite configuration of Government” because it could be these very ‘enhanced co-operation’ steps which can give rise to disputes that aggrieved Kenyans may bring to the Judiciary to decide on. 

When everyone can see that the JSC chaired by the Chief Justice is close friends with the President and the Deputy President, the trust in the impartiality of the JSC and the Chief Justice are weakened. 

What is needed is “to buttress” and enhance the independence of the Judiciary. This would help more than shiny publications.

But the Judiciary is not made up only of the JSC and the Chief Justice. Happily, despite all that they are misdoing, Justice the Defender is still walking through all our court corridors daily. She is still smiling. Thankfully.

It is because the people of Kenya know all these old tricks. The people of Kenya are vigilant. They know danger does not come all at once but in creeping steps that usually go unnoticed. Therefore, they notice. Mr Justice H R Khanna of the Supreme Court of India specifically warned us of this. He said:

“The greatest danger is when liberty is nibbled away in bits and pieces under cover of objects ostensibly beneficial and by men apparently well-intentioned.”

Also from the SCI came another warning (Mr Justice Vivian Bose): 

“If we wish to retain the fundamental liberties which we have so eloquently proclaimed in our constitution and remain a free and independent people walking in the democratic way of life, we must be swift to scotch at the outset tendencies which may easily widen, as precedent is added to precedent, into that which in the end will be the negation of freedom and equality.”

The same warning was also given by Mr Justice William O Douglas of the US Supreme Court:

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

Kenyans do not want to become victims of darkness again. The Kanu regime was enough darkness at noon.

-The writer is senior counsel