There is ongoing debate about the role of the Judiciary in a number of national issues, including adjudicating cases on devolution. This has brought it into a conflict with the Executive, Senate and National Assembly. The debate may rage for a long time to come and with varied responses. Some people have argued that there is an attempt to undermine the judiciary.
The opinion below, from Ndung’u Wainaina, the EXECUTIVE
DIRECTOR, International
Center for Policy and Conflict looks at the issue.
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There has been an unrelenting direct affront on the independence of
judiciary and judges by the political arms of the state.
An independent judiciary is essential to a strong,
predictable democracy. It is worrying when there are sustained attacks on the
independence of the judiciary in doing its work. It is a matter of concern concer when
politicians of any party decide to challenge the independent underpinnings of
the judiciary.
The Judiciary has certain constitutional mandates, including
promoting, defending and upholding the purpose and principles of the
Constitution of Kenya 2010. The
Constitution is not static. Constitution-making did not stop at referendum. The
Judiciary has the responsibility to
breathe life and fresh to the Constitution through developing deep progressive
legal jurisprudence.
We must never forget that an
independent judiciary is last the frontier of protecting individual
rights and liberties. The tide of unwarranted political criticism of sitting
judges and their decisions must stop. The People of Kenya through the
Constitution of Kenya 2010 extinguished days of submissive and pliant judiciary.
Court judgments are
sometimes controversial. Courts and
judges are not immune from criticism.
Judgments on important issues should be vigorously debated in a society
that values the freedom of expression.
However, it is important that any such debate should be objective and
rational.
History has proved that in the past decades, the
Kenyan judiciary has on crucial occasions failed to protect its own
independence. Had the judiciary used its inherent powers and constitutionally
resisted these attacks, judicial independence and the entire nation would not
have suffered.
In the very vocation of being a judge is the duty to be
courageous, even at the expense of great personal sacrifice at crucial moments
when the integrity of the Constitution and one’s position is challenged. The
judiciary is facing one such crucial situation at the moment.
Perhaps this is a time in
history that is so important, that if it is lost, the very independence of the
judiciary and constitutional values and principles will suffer a setback so
devastating, from which it would be difficult to recover.
Unless the
administration of justice is in the hands of impartial judges, who are part of
an independent judiciary, legal rights and guarantees would be worthless. People must have the confidence of knowing
that their disputes will be dealt with, on their merits, by independent and
impartial judges free from outside influence or pressure.
History will question whether the judges rose to the
occasion and faced it with courage in defending the very foundation of their
own profession and their independence. If the judiciary is not willing to
shoulder this responsibility, that too will be on record and generations to
come will suffer the loss of their liberty as a consequence of this failure.
It is important that
judges should never be threatened because of their rulings. While judges should
not be above criticism, guiding principle remains that judges can only be
subjected to removal or other disciplinary actions for criminal conduct and not
judicial acts. The constitutional judicial independence is one of the crown
jewels of new governance system of the country bestowed by the Constitution. We
must respect, promote and uphold it.
On its part Judiciary is constitutionally obliged to serve
all Kenyans without due regard of status and technicalities, and ensure the
purpose and principles of the Constitution are promoted and protected.
Kenya has made great strides in rebuilding judiciary. It
must fight hard and defend the independence of the judiciary and keep it out of
politics.
People of Kenya must never
succumb to political intimidation or threats. Politicians must be thoroughly
subjected to rigors of law, transparency and accountability while executing
their constitutional duty of representation, legislation and oversight to abide
by four corners of the Constitution.
Whenever the courts come under unwarranted attack, it is the
constitutional responsibility of the Government, that is the executive
authorities, to explain and defend the fundamental principle of judicial
independence, whether or not the decision in question is in its favour. If
respect for the courts and for their judicial process is gone or steadily
weakened, no law can save us as a society.
All Kenyans are called upon to share collective confidence in the ability,
integrity, impartiality and independence of Judiciary.
End//
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