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CONSTITUTIONAL LAW I NOTES
(Dr. Morris Kiwinda Mbondenyi)
JUDICIAL INDEPENDENCE: DEFINITION
Montesquieu, a seventeenth century jurist, called for the separation of powers suggesting that man cannot be free without this and that the most important freedom was the independence of the judiciary. The modern encapsulation of the doctrine of separation of powers has been suggested to mean that absolute power should not reside in one person or organ of states. Rather, power should be shared between the bodies with checks and balances included to prevent abuse. This doctrine is what gives rise to the doctrine of judicial independence. Judicial independence is an important concept that has classically been defined to mean that judges should be independent from executive interference. Judicial independence can also be understood as a concept that requires judges to be free from outside pressure. This essentially means, judicial independence need not necessarily be restricted to the state. Non-state actors, such as the media, could also pose a threat to judicial independence. This independence may be secured by, for example, the charging of judges’ salaries on the Consolidated Fund, separation of judiciary from Parliament, security of tenure of office and judicial immunity. It should be noted, however, that complete independence from the government would be extremely difficult because the operation of the judiciary is a government responsibility, hence the reason it is considered to be one of the three arms.
FACTORS THAT MAY INFLUENCE OR AFFECT JUDICIAL INDEPENDENCE
For the judiciary to be termed as independent there are certain characteristics that are essential. An independent judiciary is a ‘watertight’ system that ensures greater citizens’ participation and promotes accountability and transparency in the performance of its roles. In the main, such a judicial system should provide equal opportunities to all litigants without regard to one’s status, age sex, ethnicity, race or political affiliation. It
follows therefore that the criteria for appointing judicial officers should be objective and not motivated by ulterior motives. The following are some of the factors that may either influence or affect judicial independence:
- Selection and appointment of Judges In many countries, problems with judicial independence begin at the point judges are appointed. Frequently, the process is politicized or dominated by the executive, a majority party in the legislature, or the judicial hierarchy, and it is designed to ensure the responsiveness of the judiciary to those either formally or informally responsible for the appointments. It is often essential, therefore, to revise the appointment process as a necessary step in strengthening judicial independence.
- Security of tenure Security of tenure means that a judge cannot be removed from his or her position during a term of office, except for good cause (e.g., an ethical breach or unfitness) pursuant to formal proceedings with procedural protections. Security of tenure is basic to judicial independence. It is universally accepted that when judges can be easily or arbitrarily removed, they are much more vulnerable to internal or external pressures in consideration of cases.
- Structure of the Judiciary The structural relationship of the judiciary to the rest of the government inevitably makes judges more or less vulnerable to interference. As with all the other institutional issues related to the judiciary, there is no universally accepted approach. The two basic models are: a). A judiciary which is dependent on an executive department, usually the ministry of justice, for administrative and budgetary functions;
b). A judiciary which is a separate branch of government and has the same degree of self-government and budgetary control over its operations as the executive branch has over its operations.
JUDICIAL INDEPENDENCE IN KENYA
(3) Each financial year, the Chief Registrar shall prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval. (4) Upon approval by the National Assembly, the expenditure of the Judiciary shall be a charge on the Consolidated Fund and the funds shall be paid directly into the Judiciary Fund. (5) Parliament shall enact legislation to provide for the regulation of the Fund.
In order to ensure complete transformation of the judiciary and a fresh start towards judicial independence, Schedule Six of the new Constitution provides for the establishment of mechanisms and procedures for vetting the suitability of all judges and magistrates who were in office under the former Constitution.^5 The vetting process is intended to ensure that all judicial officers measure up to the functions they have been employed to perform and that they were not merely appointed as a result of their relationship with the executive. On their own, without more, the provisions of the new Constitution relating to the judiciary are indicative of the fact that judicial transformation in Kenya is in the offing. Hopefully, Kenya will sooner or later have a vibrant judiciary that will ably determine the political transformation of the nation in unprecedented ways. This, however, will be tenable only if the country’s judiciary will be bold enough to cut off the strong bonds it traditionally has had with the executive. The mere promulgation of a robust Constitution does not necessarily guarantee judicial independence. What really matters is the nature and composition of the bench that will subsequently be appointed to preside in the courts under the new constitutional order. Principally, an independent judiciary in any country has, as its ultimate resolve, the will to foster strong, accountable and efficient institutions. In this regard, the judiciary should take the necessary initiatives to ensure that it asserts its impartiality and commits itself to a raft of reforms aimed at influencing the political transformation of a nation. In the case of South Africa, the judiciary has gradually evolved a culture of justification whereby any act or omission committed by the executive or legislature has to be justified for it to be permissible. The South African Constitutional Court has been at the forefront
(^5) See Schedule Six of the Constitution, Article 23(1). See also Article 24(1) which requires the Chief Justice to vacate office within sixth months from the effective date of the Constitution to pave way for the appointment of a new Chief Justice.
in ensuring that this culture thrives by interpreting legislation in such a way that they accord with the letter and spirit of the Constitution. Indeed, this is a very important lesson for emerging constitutional democracies, such as Kenya. For judicial independence to be a reality in Kenya within the context of the new Constitution, the judiciary should be keen to ensure that, for executive actions to be acceptable, they must pass a constitutional scrutiny that would render them justifiable. Essentially, the judiciary needs to enjoy greater latitude in ‘judicially creativity’, something which will enable it to exercise independence from external interference. As discussed above, the current Constitution has adequate provisions and safeguards for judicial independence. With such provisions, it is improbable that the judiciary will be left our of the social and political transformation process, unless it is crippled with indolence, corruption, ineptitude and other related vices. In view of this, it is imperative for constitutional and legislative reforms to be taken more seriously. Such reforms should, among other things, permit all the three arms of government, not in the very least the judiciary, to be equitable partners in the democratisation process.
