This was a research paper I once undertook as a clinical externship on judicial independence. I hope its beneficial to you guys.
Controversy regarding the independence of the judiciary was first necessitated in the 1964 Constitution of Kenya. The impartial nature of the courts led to people questioning the eligibility and competence of the courts to adjudicate matters on an impartial basis. The failure by courts to enforce their guiding principles and promoting integrity led to a decline in public confidence which consequently threatens the rule of law which is the very foundation of our progressing democracy.[1]
In a research conducted, judges and legal practitioners have admitted that the major concern facing the administration of justice in Kenya is the deficiency of independence from the judicial bodies.[2]
A fact finding delegation by International Bar Association’s Human Rights Institute (IBHARI), together with the International Legal Assistance Consortium (ILAC) where they observed that public confidence in the judicial system has completely collapsed as a result of corruption, delays in court processes and the costs associated with the use of the court system.[3] The judiciary has neither the tools nor power of the sword, the real power does lie on the pronouncement of what the law envisages. This though is met with a blind eye which the executive and legislature arms of government. [4]
During the ushering in of the new Constitution,[5] there was a judicial cleansing/surgery that sent home over 24 judges with not less than 75 magistrates implicated on a variance of corruption scandals. The radical change in the judicial affairs restored the public confidence into the institution. The Constitution has encapsulated several clauses on it that promotes the differential roles, duties and obligations that every organ of government has to achieve with the promotion of checks and balances among the arms of government.
As much as there is a widespread of consensus on the integral function on the independence of the judiciary, there is still a lacuna that is yet to be unraveled as a whole.[6] There is still much contest as to what encompasses this concept of independence of the judiciary. Many scholars have tried to fathom the viability and categorization of this concept.[7] The main problem or issue that pops out is the extent and degree that the judiciary ought to be independent. Many scholars have formed a contrary opinion that this concept is most likely to fail or is unachievable,[8] their reasoning for this conclusion draws from the disciplinary issues against politicians, lawyers and even sociologists.[9]
2.0.JUDICIAL INDEPENDENCE.
The approach on defining independence of the judiciary has been taken from a variance of fronts, the grundnorm that forms the basis for this is the ability to determine matters impartially but in the promotion of the rule of law, without any influence, restrictions or threats. [10]
Types of judicial independence
a) Personal independence.
This is commonly implied on the circumstances that get to affect the judge on decision making on a matter. Their ability to make decisions without any influence or fear from another person. With the guidance of the principles forming and upholding the spirit of the rule of law.[11] This advocates that the judges personal freewill to impartially determine the matters before them. By impartiality, it’s implied that the judges ought to analyze the facts before them with the law and not any other influence from the litigants.[12] This hence does promote the substantive analysis of facts rather than being objective.
The option and debate as to whether a judge is bound by the superior court precedent has occasionally resulted into lapse of free will by the judges as they are bound to follow the already presided cases and hence diminishing their free will to express their notion to the contrary on a n authoritative level. The concept being described herein is not that of being bound by precedent but rather the private affair of the judge’s that make them suitable to make just and fair decisions without any influence or interruption of fear and threat.
b) Institutional independence.
Advocating for a judge’s personal independence is incomplete if the institution by itself is not. The mandates, values and roles that are set for application by the achievement by the judiciary as an institution is achievable if independent. Institutional independence therefore means the protection of the institution of the judiciary from manipulation and interference from the other organs of government as well as other private actors. This is promoted and founded upon the principle of separation of powers which does mandate each of the arms of government being the legislature and executive as distinct performance wise from the judiciary.[13] This therefore means that judges are mandated to work in institutions with environments that make them deliver decisions without getting to worry about their personal consequences as a result of the decisions.[14]
In the discussion of the concept of judicial independence, the following will be the underpinnings of the aforesaid research:[15]
a. -Separation of judicial functions;
b. -Appointments of judicial officers and staff;
c. -The tenure and removal of the judicial officers and staff;
d. -Fiscal autonomy and the guidelines therein;
e. -The office of the Chief Justice and;
f. -The influence from the executive arm of government.
3.0.THEORIES ON THE INDEPENDENCE OF THE JUDICIARY.
The principle of separation of powers
This principle was first introduced and expounded on by the legal scholars Montesquieu[16] and also Elizabeth Magil where they referred to this principle as the separation of the responsibilities among the arms of government so as to limit the arms of government from doing each other’s core functions. The elements he established are as hereunder;[17]
- A person should not hold office for more than one arm of government;
- The organs of government should perform their core functions respectively and another arm of government should not purport to do another person’s functions; and,
- An arm of government should not encroach another’s responsibilities and therefore established the three arms of government namely; executive, legislature and judiciary.
The constitution of Kenya establishes three arms of government namely; legislature, executive and the judiciary.
This position of a tripartite division has been heavily criticized by several scholars, Sir Ivor Jennings being an example stresses on the fact that a person finds true liberty from the state itself and insists that it is a characteristic that cannot be found in authoritative countries.[18]
Marshall on the critic to this principle states that;
“the principle of separation of powers is infected with so much imprecision and inconsistency that it may be counted as little more than a jumbled portmanteau for politics which ought to be supported or rejected on other grounds.”[19]
In trying to contextualize the independence of the judiciary, it is key that the concept of separation of powers so as to understand the reason and purpose for the independence. This principle will therefore prove to being important in the analysis.
The principle of independence of the judiciary
Independence of the judiciary is hence dependent upon the observance of both the rule of law and separation of powers. By observing the two then there will be no tyranny or arbitrariness in the conduct of their responsibilities.[20]
Montesquieu did form the view that the judiciary cannot have any form of liberty if it is not separated from the legislature and executive. The reason for this is that when the legislature and judiciary are merged then the level of arbitrariness will supersede its initial intended purpose. This therefore means that for independence of the judiciary to effectively and efficiently play its role, then separation of powers to prevent any interference is needed to sustain its integrity as being independent.[21]
Chief Justice Brian Dickson of the Supreme Court of Canada in The Queen v. Beauregard states that;
“The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system”.[22]
Therefore, in the analysis of this research, this principle will form a strong foundation in the analysis of the provisions as to the independence of the judiciary in Kenya.
The theory of rule of law
The rule of law just as separation of powers has many definitions which hence has led to has led scholars to reveal skepticism as to its meaning and how to distinguish its values.
Shklar forms the opinion that;
“It has become meaningless due to ideological abuses and general overuse. It may well have become another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo American politicians and no intellectual effort need to be wasted on this bit of ruling class clatter.”[23]
Finnis denotes that the rule of law is a name that has been given to the state of matters that is used to connote that the system is in decent form.[24] With many definitions in that respect, this is therefore a recipe of disagreements as to the actual definition of the rule of law. No matter the disagreements, there is a general consensus that the rule of law is an essential and elemental concept which is therefore in place for the better good of the public.[25]
The rule of law main objectives can be therefore be crystallized into 3, namely;
- -To avoid any concentration of powers into one unit;
- -To avoid any tyranny or undue arbitrariness; and
- -The purpose of courts in arbitration and adjudication of any disputes accruing.
Through this function, many aspects as to the independence of the judiciary are put to a check and balance to ensure that each arm of government gets to do their responsibilities as required by the law.
4.0.CONCEPTUALIZING JUDICIAL INDEPENDENCE.
The most logical function bestowed upon the judiciary is the function to adjudicate matters between private individuals and also against the government. The retributive or restorative justice is what is most sought before the judicial bodies.[26] This position was reiterated by Lord Marshall while litigating in the case of Marbury v Madison,[27] he opined that it is the duty of the court and judicial bodies to say the law as it is. Lord Bingham on the other hand reaffirms that it is the duty of the judges to apply and interpret the law which by itself is the cornerstone of the rule of law.[28]
a. Separation of judicial functions
Independence of the judiciary is one of the Anglophone that African states didn’t seriously construe into their Constitutions and legislations, the most anticipated aspect of it was the ability of the judiciary to restore its integrity in litigating matters.[29] The allegations and assumptions that the judiciary was an extension of the executive for being partial towards the activities by the executive were ascertained by the wavering cases that the courts determined. [30]One of the initiatives lauded as being a good measure is a guarantee by the judiciary.[31]
The Constitution of Kenya separates the institutions and government functions and adopts what may be attributed to as checks and balances. Power is therefore separated both at the national and county levels.
At the national level, power is attributed in 3 organs in the form of Legislature, Executive and Judiciary.
- Legislature
Article 93 of the Constitution does establish the legislative organ of government with its power deriving from the people and vested in parliament. The constitution under article 93(5) vests the law making powers under this arm of government. In achievement of this obligation, the functions are encapsulated under articles 95 and 96.
- Executive
Articles 129 and 130 do derive the executive power from the people to the president, deputy president and the cabinet. The president emanating from this, has the power to appoint and nominate Attorney General, Cabinet Secretaries, Principal Secretaries, Ambassadors, High Commissioners, diplomatic representatives, declare war, declare a state of emergency, all the said appointments and powers vested upon the president are subject to the parliament’s approval.
- Judiciary.
Judicial authority is derived from the people and vested in or exercised by courts and tribunals that are established by the Constitution. Article 160(1) of the Constitution guarantees the judiciary independence by providing that it is not subject to control or direction from any authority or person.
The Constitution further guarantees remuneration autonomy by establishing a consolidated fund for the remuneration of judges and also guarantees that an office of a superior judge shall not be abolished while there is a substantive holder of the same hence security of tenure.
b. Appointments of judicial officers and staff;
Involvement of executive in the appointment of judicial officials more so the Chief Justice is a guarantee of the recognition and need for complete confidence and cooperation between the head of state and the Chief Justice.[32] The other judges on the other hand are appointed vide prior consultations with the Judicial Service Commission. In Kenya for instance establishes judicial offices and officers under article 161 where it states as follows;
Article 161 (1) The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. (2) There is established the office of-
(a) Chief Justice, who shall be the Head of the Judiciary;
(b) Deputy Chief Justice, who shall be the Deputy Head of the Judiciary; and
(c) Chief Registrar of the Judiciary, who shall be the chief administrator and accounting officer of the Judiciary.
(3) The Judicial Service Commission may establish other offices of registrar as may be necessary. The appointment of the Chief Justice has been the main core of appointments both in this and the prior constitution. Contrasting with the prior constitution, the Chief Justice was solely appointed by the president.[33] This was the one aspect that defied the concept of separation of powers. The defiance comes in a way that the president had the powers to appoint a person without any checks and balances either by judiciary or legislature meaning that he had the ability to choose whoever he deemed fit for the job in the aspect of being in his control. The powers of the judiciary had therefore been expanded to entail control over the judiciary which limited the effectiveness and transparency of the judiciary.
In a study conducted in 2005 by the Constitution of Kenya Review Commission, 74% of the participants formed the opinion that the powers given to the president to appoint the Chief Justice was had influenced and affected the structure of the judiciary which hence made it a political issue rather than a public interest matter.[34] This therefore meant that the public confidence in this institution was not at a good state.
In the appointment of judges of the High Court and those of the Court of Appeal,[35] the independence Constitution there was no set criteria or the guidelines that the Judicial Service Commission could adopt other than the legal qualifications. The Judicial Service Commission did not declare the means and methods they had used to come up with the list that they were to forward to the president. Not even the Law Society of Kenya had a stake in the selection process.
The current 2010 Constitution provides for a better appointment mechanism under article166, where it provides for a criteria of persons who qualify for certain positions. The Chief Justice for instance their names are recommended by the Judicial Service Commission after conducting its inquests and interviews and thereafter is subject to the approval of the National Assembly. The Chief Justice is now required to give a state of an account of the judiciary to the state once every year.[36]
The enactment of the 2010 Constitution and the judicial cleansing that followed thereafter did have an effect in the restoration of public confidence process. The establishment of structures and processes of ensuring the judiciary is independent including the separate fund is a system that has brought about some contrast compared to the past regime.
The transparency, checks and balances structures have been put in place to ensure that the process of appointing the judicial officers is done in a fair and just manner. The fact that the executive participates in the appointment of judges does not mean that it is inconsistent with the separation of powers or judicial independence. This position was held in Van Rooney and Others vs State and others.[37]
c. The tenure and removal of the judicial officers and staff;
The framework as to the removal of judges and magistrates is encapsulated under article 168 of the Constitution of Kenya 2010. The provisions therein read as follows:
Article 168 (1) any judge of a Superior Court may be removed from office on the grounds of –[38]
(a) Inability to perform the functions of office arising from mental or physical incapacity
(b) A breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament
(c) Bankruptcy
(d) Incompetence; or
(e) Gross misconduct or misbehavior.
The above grounds are general in nature and are fair for purposes of ensuring fairness and justice.
In the case of Nancy Baraza v Rebecca Kerubo and 9 others,[39] where the facts of the case are that the appellant was charged with the offence of assaulting, threatening and intimidating the first respondent who was a security guard at the Village Market in the outskirts of Nairobi. The matter was reported at Gigiri police station by the first respondent. The police thereafter commenced investigations where the media picked it up and propagated the discussion and incident. The magnitude of the matter hence attracted a sizable amount of public uproar. On the 5th January, 2012, the then Chief Justice released a Press Release reiterating his commitment to equality in law and stated that the Judicial Service Commission had started its own investigation to establish the allegations but recognized the police were also conducting an investigation as well and thus did not want to cause any interference. On the 9th of January, 2012, the Chief Justice conveyed a full meeting of the Commission and resolved to form a subcommittee of eight (8) members to look at the reported incident and report back with its findings and recommendations on 13th January, 2012. Several correspondences were made between the commission and the current appellant as well as the president notifying him of the intention to file a petition against the appellant.
The court came to a realization that the judge of a superior court can be removed from office using two methods. One is by the Judicial Service Commission on its own motion or upon a petition to the commission, the former is the one adopted for this matter although for its success then it must conduct its own independent investigations to establish their culpability before drawing its own conclusion and eventual recommendation.
This case is one that highlights that the courts have had some form of transformations in trying to do its activities on an impartial basis. The fact that the Judicial Service Commission did its own investigation and acted upon the accrued findings by petitioning for the suspension and discharge of the appellant herein shows the courts are having a fearless and rigorous approach towards the actualization of justice.
The Constitution therefore has placed this obligation firmly on the Judicial Service commission,[40] this obligation in the previous Constitution had been placed to the President and the Chief Justice who had no mandate to initiate the removal process. The difference being that the involvement of the Chief Justice and the President is currently meted out with the involvement of other neutral and relevant parties. The composition of the Commission formed for the removal of a judge is of diverse backgrounds, the previous regime had the president appoint all the five members forming the commission. The ability and powers given to the Judicial Service Commission to initiate a petition on its own accord after investigations has minimalized any grounds of unsubstantiated allegations. Now the president has no option but to act upon the petition.
d. Fiscal autonomy and the guidelines therein;
Judicial remuneration is the other docket with which the judiciary faced lots of challenges and problems. The ability of the executive to frustrate and corner judges on financial desertion is mostly on this docket. In the previous Constitution, this docket was under the discretion of the minister of finance who disbursed the funds. The judges had a consolidated fund but was under the directives of the minister who had the ability to alter the budgetary allocation without consultation with the judiciary.[41] This meant that the judiciary was not protected from the executive interference. The low remuneration also did lead to the judicial officers to go on strike which hence prompted them to start sourcing for other forms of income that didn’t promote justice.[42] The role of the judiciary as an impartial body of legal recourse for both civil and criminal cases was thus under threat from the executive control. As at 2005, a report declared that the judiciary budgetary allocation stood at a mere 1%.[43]
Under article 173 of the 2010 Constitution, there is established a fund that is to be referred as the Judiciary Fund whose activities shall be administered by the Chief Registrar of the Judiciary. The fund shall be used in the administrative expenses such as in the need for the discharge of its functions.[44] The Chief Registrar has the obligation to prepare estimates of expenditure for the following year and will duly submit them to the National Assembly for purposes of approval. Finally the estimated mount on approval by the National Assembly, there shall be a charge on the Consolidated Fund where the money shall be paid directly to the account of the Judiciary Fund.[45]
e. The influence from the executive arm of government.
The current Constitution of 2010 under article 160(1) directly proclaims that when the judiciary is exercising its authority, then it shall do the same subject to the control of the Constitution and that the said law shall not be subject to anyone’s control, direction or authority. The implication of this clause is that the Constitution acknowledges the judiciary as a separate arm of government and bestows its roles and obligations subject to control by the Constitution itself.
This has further been cemented by the provisions of articles 255 to 257 where a referendum as well as a majority support of 2/3 is needed to do any amendments on any judiciary provision. The protection of the judiciary is therefore now left to the decision of the public itself.
f. Judicial Service Commission
The Judicial Service Commission (JSC) is a judicial body established under Article 171 of Constitution, 2010. One of its core obligations is to conduct the appointment of judges and judicial officers. During the judiciary cleansing period, the Chief Justice, Deputy Chief Justice, Judges and magistrates were appointed after a rigorous, transparent and competitive process. The JSC consequently successfully made a shortlist of people who had qualified for the position of the Chief Justice and Deputy Chief Justice. This list is then given to the president for purposes of picking his preferred candidate. Nevertheless, the manner of judicial appointments has poised some very critical constitutional, ethical and policy problems. An example is the relevance of open interviews as a basis of approval and appointment, the essence of Section 129 of the evidence Act which provides that judges and magistrates should not be subjected to processes that may undermine the confidentiality of the judicial function and the judicial offices before the public.
The JSC is comprised of 11 commissioners with regards to article 171(2) of the constitution of 2010. The Chief Justice is the head of this Commission. The JSC is also mandated with spearheading judicial reforms which is objectively accomplished through judicial appointments. Under the 1963 Constitution, the JSC was close to powerless as the executive had it centralized with almost all the powers. The judicial appointments were as already said conducted by the president through his informal advisors. Judicial appointments were therefore a political affair at the rule of the president. Ahmednasir Abdullahi, a member of JSC noted that;
“Gone is the era when the Executive would announce the appointment of candidates to high offices through mystical rituals that were difficult to rationalize. Gone is the era when the only consideration for the government was the tribal or political affiliation of the candidate. Gone is the era when appointments were used as a rewarding tool for the loyalty a community shows to the President”.
The independence of the judiciary is now demonstrating as it can query the acts of the executive and even the legislature. A prominent example is the Mumo Matemu case.[46]
5.0.ANALYSIS ON THE STATE OF INDEPENDENCE OF THE JUDICIARY IN KENYA
Having established the structure and legal guidelines as to the independence of the judiciary. This section will therefore give an assessment as to the progress made by Kenya to actualize this concept.
One of the biggest problems is that of remuneration and the judiciary consolidated fund. An article by Kamau Muthoni highlighted some core issues concerning this aspect.[47] In her article she does analyze the fact that the Judicial Service Commissions budget was slashed by 62.2% from Kshs. 490.2 million to Kshs. 183.5 million. In furtherance to that, the judiciary allocation budget was reduced by Kshs. 1.95 billion in a bid to finance elections. The national treasury in the meantime declared that it did not have enough money to finance the judge’s and other member of the judiciary in their insurance cover.
A four-year strategic plan was released by the Judiciary that planned for a bid to enhance independence of the judiciary but this was frustrated by the cold play between the judiciary itself, the Parliament and the Executive. The 75 paged document had strategic plans for years between 2014 and 2018 but the said financial independence was not achieved.
The issue coming out of this is that, there is no instance that the members of the executive have had a crisis compared to this facing the judiciary. As much the Constitution has devolved its functions into the different arms of government, there seems to be a lacuna in budget allocation more so when the same is left out for the executive to balance it out. That is like giving them the power to control how the monetary expenditure is to be done within the docket of the judiciary. This is one of the most burdening issues that the judiciary is facing even though we aim at promoting the checks and balances.
The other issue affecting the independence of the judiciary is contempt more so from the members of the executive who think they are above the law. Justice Ibrahim in Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another, best explains the meaning of contempt where he opines that;
"It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect of whom, an order is made by Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void."[48]
This though in the recent case of habeas corpus against Dr. Fred Matiang’i, the court faced an outright contempt from the minister of security. He was culpable to paying a fine but for purposes of ensuring dignity and respect is promoted, there is need for the court to invoke the other option of imprisonment for 6 months.
This are some of the few issues threatening the independence of the judiciary but contrary to that the courts have remained prudent and are a force to be reckoned with regards to the current administration and there is need for several reforms as I will articulate in the reforms but so far the courts have upheld their duties and are facing minor challenges that need to be addressed but will eventually take time before the spirit of independence of the judiciary takes full effect.
6.0.CONCLUSION AND RECOMMENDATIONS
CONCLUSION
From the foregoing analysis, it is pretty clear that the concept independence of the judiciary is one that is backed up by the separations of power and rule of law. As a grounding, this three principles do share several values which are; 1) avoidance of concentration of powers in any arm of the government, b) prevention of tyranny and 3) protection of the liberty by an individual. From the given analysis, it’s prudent to state that the achievement of the complete independence of the judiciary is unachievable with the current systems in place. The ability of having shared responsibilities that cut across the board of the three arms of government is a promotion of the checks and balances. The main identifiable issue or challenge as to that is trying to identify the appropriate equilibrium or levels of the checks and balances.[49]
The other discovery from the foregoing analysis is that the independence of the judiciary is closely intertwined with the political economies and ideologies. This study asserts the spat that weak constitutional protection for judicial independence has a solid co-relation with lack of independence. A weak judiciary on the other hand is not capable of handling the intrusion from the executive who purport to have all power.
In conclusion, the introduction of the new 2010 Constitution proved and is still proving to be a success save for minor challenges accruing therein. The degree and extent as to the violations that were done prior to the promulgation of this constitution cannot be contrasted with the level of order that came thereafter, from the judicial cleansing to the ability of the courts to withstand much pressure from both the public and the executive on the other hand.
RECOMMENDATIONS
Providing a better mechanism in budget allocation.
This has been one of the most challenging issue in the administration and running of the judiciary. The ability by the executive to decide and approve the budget of the judiciary obligations is a threat to the administration of justice and running of the judicial activities and developments. The best solution to this would be set out an independent commission that get to audit and review the budgetary allocations against the plans and proposals tabled so as not to under budget another arm of government with an ulterior motive.
Caution the laws passed by parliament
After the promulgation of the 2010 Constitution, the Judicial Services Act[50] and the Vetting of Judges and Magistrates Act[51] were enacted some time thereafter. Emanating from those statutes is that the parliament can now manipulate, slow down or even reverse the new found robustly guaranteed independence of the judiciary. This begs for a paradigm shift away from the acceptance that the executive is the utmost nemesis of judicial independence. By caution I imply that the court can mitigate the clauses that restrict the conduct of the judiciary subject to the control of the executive.
Performance evaluation mechanisms should be instituted for individual judges as well as for the entire judiciary.
Performance evaluation is a key concept that can account for a high ordeal of transparency and integrity matters. The fact that a judge or magistrate will be under scrutiny at the end of the day or a certain specified period of time will lead to better and fair judgements. The executive interference will be deterred whenever one tries to do so as with evaluation in line no one will want to be at the hot seat.
[1] Peter Annassi, Corruption in Africa: The Kenyan Experience (Trafford Publishing, Victoria British Columbia 2004) 2.
[2] Judiciary Strategic Plan 2009-2012 (The Judiciary, Nairobi 2009) 25.
[3] International Bar Association Human Rights Institute, ‘IBHARI Calls for Radical Reform of Kenya’s Justice System, in Major Report Released today’, (Press Release Monday 15th February 2010 <http://www.ibanet.org> accessed 20th September, 2018
[4] James Madison, Alexander Hamilton and John Jay: The Federalist Papers, Isaac Kremnick (Ed) (Penguin Books, Harmondsworth 1987) 437 The Federalist No 78.
[5] The Constitution of Kenya of 2010.
[6] Robert Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office (OUP, Oxford 1993) 3.
[7] William C Prillaman, The Judiciary and the Democratic Decay in Latin America: Declining Confidence in the Rule of law (Praeger Publishers, WestPort 1967) 16.
[8] Lewis Kornhauser, ‘Is Judicial Independence a useful concept?’ in Stephen B Burbank and Barry Friedman (eds) Judicial Independence at the Crossroads: An Interdisciplinary Approach (Sage Publications, California 2002) 46
[9] Peter H Russell and David M O’Brien (Eds), Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (University Press of Virginia, Charlottesville 2001).
[10] Ghai Report (UN Basic Principles) art 2,
[11] John Ferejohn ‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence’ (1999) 72 Southern Californian Law Review 355.
[12] Christopher Larkins ‘Judicial Independence and Democratization: A Theoretical and Conceptual Analysis’ (1996) 44 American Journal of Comparative Law 609/
[13] Kate Malleson, The New Judiciary: The Effects of Expansion and Activism (Dartmouth Publishing Co. England 1999) 43
[14] Justice Edwin Cameron ‘The Need for the Independence of the Judiciary and the Legal Profession’ (Speech) <http://www.sabr.co.za/lawjournal/2008/december-2008-vol21-no3-pp34-36> accessed on 30th September, 2018.
[15] Article 160 of the Constitution of Kenya of 2010.
[16] Lefrance G “Montesquieu and Rousseau on Constitutional Theory”, in Rosenbaum, A S (Ed) Constitutionalism: The Philosophical Dimension, Greenwood Press, New York, 1988, 60.
[17] Elizabeth Magill ‘The Real Separation of Powers Law’ (2000) 86 Virginia Law Review 1132.
[18] Ivor Jennings, The Law and the Constitution (5th edn, University of London Press Limited, London [1960] 281.
[19] Geoffrey Marshall, Constitutional Theory (OUP, Oxford 1971) 124.
[20] Rt. Hon. Lord Woolf, Lord Chief Justice of England, ‘The Rule of Law and Change in Constitution’ [2004] Squire Centenary Lecture available at www.law.cam.ac.uk accessed 10th October, 2010.
[21] Shimon Shetreet, ‘Judicial Independence: New Conceptual Dimensions and Contemporary Challenges’ in S Shetreet and J Deschenes (eds), Judicial Independence: The Contemporary Debate (Martinus Nijhoff Publishers, Dordrecht) [1985] 595
[22] [1986] 2 S.C.R. 56
[23] Judith Shklar, ‘Political Theory and the Rule of Law’ in Judith Shklar and Stanley Hoffman (Eds), Political Thoughts and Political Thinkers (University of Chicago Press, Chicago) [1989] 21.
[24] John Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford) [1980] 270.
[25] Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (CUP, Cambridge) [2004] Also See Joseph Raz 217.
[26] Peter H Russell and David M O’Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (University Press of Virginia, Charlottesville [2001] Burbank and Friedman (eds) Peereboom (ed) he gives a general overview concerning the debate as to the independence of the judiciary by different personnels including the lawyers, political scientists and sociologists who n the end form different opinions as to what entails this independence or what ought to make it independent.
[27] [1803] 5 U.S (1 Cranch) 137, 177
[28] A (FC) v Secretary of State for the Home Department [2004] UKHL 56 (sec 42) also see Joseph Raz 217, he stated that it is the duty of judges to state the law as it is, this position though changed as the courts faced more complex matters to warrant them to do more than just to state the law as it is.
[29] Peter Russell and David O’Brien (Eds), Judicial independence in the Age of Democracy: Critical Perspectives from Around the World (University Press of Virginia, Charlottesville) [2001] 22.
[30] Jennifer Widner, ‘Judicial Independence in Common Law Africa’, in Office of Democracy and Governance, Guidance for Promoting Judicial Independence, (Revised edn, USAID Washington DC) [2002] 36.
[31] Lovemore Madhuku, ‘Constitutional Protection of the Independence of the Judiciary: A Survey of the Position in South Africa’ [2002] 42 Journal of African Law 232.
[32] A N E Amissah, The Contribution of Courts to Government; A West African View (Clarendon Press, Oxford) [1981] 119
[33] Revised Edition, 2008 s 61 (1)
[34] Report of the Constitution of Kenya Review Commission (CKRC): Volume One; The Main Report, (CKRC Nairobi) [2003] 49, (hereinafter referred to as Ghai Report)
[35] Section 61 (3) provided that an advocate who had practiced for 7 years either in Kenya or in the Commonwealth country or Republic of Ireland qualified for the appointment as a Court of Appeal Judge or a Chief Justice.
[36] The Judicial Services Act Section1(2)(b)
[37] [2003] 1 LRC 533.
[38] Article 168 of the Constitution of Kenya of 2010.
[39] Petition No. 23 of 2012.
[40] Art 168(1)
[41] Section 104 (2), provided that ‘All revenue or other monies raised and received for the proposes of the Government of Kenya shall be paid into or form a Consolidated Fund’
[42] Joyce Manyasi v Evan Gicheru & Three others, High Court Misc. Application 920 of 2005 where a magistrate was dismissed by the JSC for participating in a strike. The High Court later quashed the decision of the JSC and granted an order of Mandamus for her to be reinstated.
[43] Report of the Constitution of Kenya Review Commission (CKRC): Volume One; The Main Report, (CKRC Nairobi) [2003] 48.
[44] Article 173(2).
[45] Article 173(3) and Article 173(4)
[46] Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR
This case involved setting aside of the appointment of Mumo Matemu as the chairperson of the Ethics and Anti-Corruption Commission.
[47] Kamau Muthoni, ‘Judiciary is broke, judges and staff lose medical cover’ [2018] https://www.standardmedia.co.ke/article/2001283395/judiciary-is-broke-judges-and-staff-lose-medical-cover accessed on 12th October, 2018.
[48] [2005] 1KLR 828.
[49] P. H. Gulliver (ed) Tradition and Transformation in East Africa, (University of California Press, California, 1969) 129
[50] No. 1 of 2011
[51] No. 2 of 2011
That's some good piece on the independence of the judiciary. Commendable piece. Next should be an addendum on the same on the face of the current activism.
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