by Kipchumba Some

The draft constitution proposes judicial reforms including the creation of a Supreme Court, which will be the highest judicial institution.

The draft creates a four-tier superior court system to fast-track delivery of justice. It also strips the president of powers to unilaterally appoint the Chief Justice, who will serve as the president of the Supreme Court.

The court’s mandate will be to hear disputes arising from the process of impeaching the president as provided for in the draft.

It will also hear appeals from the Court of Appeal and Constitutional Court as well as other courts and tribunals created by Parliament.

According to the draft, the president will appoint the Chief Justice, deputy Chief Justice and other judges on the recommendation by the Judicial Service Commission and upon approval by Parliament.

This proposal, it is envisaged, will grant the Judiciary the independence it has sought from political manipulation.

The Chief Justice will hold office for a maximum of 10 years, while judges will be required to retire upon attaining 70 years. The president can suspend the Chief Justice upon recommendation of the Judicial Service Commission.

The Supreme Court, which will sit in Nairobi, will have not fewer than five but not more than seven judges.

The Court of Appeal, hitherto the highest court, will be subordinate to the Supreme Court. It will consist of a minimum of 12 judges whose president will be appointed by the Chief Justice.

The Constitutional Court will be an autonomous court, which will have the final word on matters relating to elections. It will have powers to determine a presidential election petition and appeals from a decision of the Independent Electoral and Boundaries Commission.

It will also be responsible for the interpretation of the Constitution where doubts arise. It will consist of a minimum of five judges. There is, however, no ceiling on the maximum number of judges.

The High Court, currently the second highest court, will handle civil and criminal matters. The Chief Justice will appoint its Principal Judge.

Despite the push by some church leaders to have the Kadhi’s Court abolished, the courts were retained but without added powers. Other subordinate courts are the Magistrates Courts and the Court Martial for the military.