The Judiciary is the watchdog of the rule of law and access to justice in Kenya. Through its processes, disputes are resolved, alternative dispute resolutions are promoted and there is enforcement of Constitutionally protected rights. Chapter 10 of the Constitution of Kenya 2010 creates the Judiciary; together with aligning provisions on its independence, system and hierarchy of courts and the Judicial Service Commission.
These provisions particularly come to mind as the process of recruiting the Chief Justice is ongoing. With Chief Justice David Maraga’s retirement in January 2021, the Judicial Service Commission has begun the process of interviewing applicants for the topmost seat in the Judiciary. There are 10 applicants who have been shortlisted and whose interviews started taking place this week. These include: Hon. Juma Chitembwe, Prof. Kameri Mbote, Hon. Martha Koome, Hon. David Marete, Philip Murgor, Hon. Nduma Nderi, Hon. William Ouko, Senior Counsel Fred Ngatia, Prof. Moni Wekesa and Alice Yano.
Article 166 of the Constitution provides for the criteria for the appointment of the Chief Justice. This includes at least 15 years’ experience as a superior court judge or as a distinguished academic, judicial officer or legal practitioner. While the Chief Justice is formally appointed by the President, he/she is recommended by the Judicial Service Commission and is vetted by the National Assembly. This clearly outlines the separation of powers and the checks and balances that each arm has on the other. Despite this, the independence of the Judiciary cannot be overstated with its principal foundation in the Constitution.
Kenyans should expect a Chief Justice who is aligned to the principles encompassed in Chapter 6 of the Constitution on Leadership and Integrity. This should be a person who has a high moral character, integrity and impartiality. Any aspersions cast on the impartiality of the Chief Justice would further lower the public perception that the Judiciary is weak. This should be an individual who is able to promote public confidence in the Judiciary, entrench constitutionalism and entrench the principles of transparency and accountability.
It would be remiss to say that, in the recent past, the Judiciary has faced unique challenges that have hindered the effective implementation of its much-needed work. There have been concerns that the independence of the Judiciary has been undermined with judicial officers being complicit in ensuring that the courts are used a tool for political suppression. Secondly, a trend where court orders are not obeyed especially by members of the Executive, erodes the confidence of the authority from the sovereign people of Kenya that is delegated to the Judiciary. Thirdly, the Executive has been seen to force its hand in the affairs of the Judiciary; noted by many to be the silent retaliation for the Supreme Court’s decision to annul the 2017 Presidential election. This has been evident in two main ways. This is through budget cuts despite the need for resources and through the lack of appointment of 41 judges who had been approved by the JSC. Despite a court decision declaring that the President is constitutionally bound by the recommendation of the Judicial Service Commission, the judges are yet to be appointed leading to the closure of some court stations across the country.
All these, coupled with the never-ending complaints on case backlogs and unnecessary delays have lowered public trust and confidence in the institution. The situation has also been aggravated by the Covid-19 pandemic that temporarily halted operations, causing further delays and inaccessibility to much-needed justice.
A heavy plate is what awaits the new Chief Justice. While retired Chief Justice David Maraga promoted access to justice through the Sustaining Judiciary Transformation Agenda, there is still a lot to be done. This includes leveraging on technology to deliver justice while maintaining fair trials and protecting constitutional rights. Further, judicial accountability of judicial officers at all levels will ensure that there are fair and well-reasoned judgments with proper complaint/appeal mechanisms. Additionally, there should be synchronous cooperation among the three arms of the government. This will ensure that the Judiciary receives the support it requires without compromising its independence.
Lastly, with the Building Bridges Initiative taking centre-stage in the coming months, the Judiciary’s role will be fundamental in determining the various constitutional issues that arise from the political process. In this, the leadership of a strong-willed Chief Justice will be necessary to ensure that the will of the people is heard and articulated well.
As Kenyans, we hope that the best candidate succeeds to guide the judicial system accordingly. In closing, we reiterate the words of John Rawls, ‘laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’ Key reforms should take place to reduce any unjust outcomes perceived by litigants as they interact with the Judiciary at any level.