By PRAVIN BOWRY
Chapter 10 of the Constitution relates to judicial authority and the legal system. It provides for the independence of the Judiciary, enumerates judicial officers and offices and lays down in great detail and precision the system of courts and then it sets up the Judicial Service Commission.
And Chapter 9 deals with the Executive. In this part other offices like the office of the Attorney General and the office of the Director of Public Prosecution are also established and powers and limitations set. In the background of all this, the reality and challenges of the functionalities of the judicial system are surfacing on the ground and creating a great deal of debate, confusion and even conflict.
Those who practice in the Courts are being faced with issues I term as “grey areas” and sooner or later these areas will require final determination.
First, the confusing structure relating to High Court Judges. In the old Constitution we had what was called “puisne judges” defined in the colonial and English system as any judge of the High Court other than the Chief Judge.
The new Constitution has created different cadres of judges. It arguably seems that there are judges and judges! The High Court judges have unlimited original jurisdiction in criminal and civil matters amongst other jurisdictions outlined under Article 165 of the Constitution – effectively dealing with any legal issue under the sun, whether set in the laws of the country or not, and the fluidity of factual situations do and can warrant interesting issues emerging in daily functions of the Judiciary not envisaged by any law.
And then there is the second cadre of courts with the “status of the High Court” as stated under Article 162(2) to hear and determine disputes relating to (a) employment and labour relations and (b) environment and the use and occupation of and title to land.
The Industrial Courts and the Environment and Land Court were born under the umbrella of the Constitution under two Acts the Industrial Court Act and the Land and Environment Court Act. Can a High Court Judge, then, hear matters other than those for which they were vetted, appointed, gazetted and sworn to hear?
Unlimited
In a recent case a Judge from the Land Court was assigned to hear a two bench criminal appeal and the objection as to the legality was overruled on the basis that all judges have ‘unlimited’ jurisdiction. In similar fashion, Industrial Court Judges are performing functions of judges in the mainstream Judiciary. And to make matters even more complicated some judges are hearing land cases apparently under a parallel division created by the Chief Justice administratively. The dilemma becomes more intricate. The question that surfaced recently was whether the Chief Justice can create an International Criminal Division of the High Court in a format where investigators, prosecutors and judges will operate totally independently – something which is not provided for in the Constitution.
Judges traditionally should not enter into the realm of conflict – setting a parallel legal system appears unconstitutional.
The unfettered and precise powers of the DPP cannot and should not be encroached on least of all at the behest of the Chief Justice. The DPP Keriako Tobiko had a valid point when he aired his views in Naivasha as to the matter of the International Criminal Division being unconstitutional.
The DPP said that investigations and prosecutions under the Constitution of Kenya do not and cannot lie with or under the High Court. He insisted that the principle of separation of powers must be respected and further that there was no basis for the proposal to create a parallel prosecutions office.
Under the old Constitution the former Chief Justice set up the Anti-Corruption Court and got away with it with the Judiciary endorsing his move. It was held in a High Court decision that the “Anti-Corruption Court” was only a label, to describe a division in the Magistrate’s Court system lawfully established by the CJ by virtue of powers conferred upon him by the Magistrate’s Court Act and there was entirely no inconsistency with the Constitution.
Supreme court
Even in land matters it is surprising that despite the provisions of the Constitution Chief Justice Willy Mutunga on November 9, 2012 published a Kenya Gazette Notice No. 16268 setting up, as transitional provisions, a parallel Environment and Land Division. The division is still very much alive and judges who are not appointed and gazetted as judges of the Environment and Land Court in Gazette Notice No. 14346 of 5 October, 2012, it can be argued, are operating illegally. Judges acting illegally must be a matter for the Supreme Court to intervene.
Matters of setting up divisions of Courts, or creating Courts, or those involved in court systems such as investigators or prosecutors cannot and should not be dealt with emotionally or arbitrarily in a fanciful method.
Both the constitutionality of setting up courts and the correctness or otherwise of the interchanging functions of judges are issues best resolved by the Supreme Court under the extremely limited jurisdiction of public interest matters or by the Constitutional Court with its unlimited jurisdiction in all matters constitution.
The writer is a lawyer.
bowryp@hotmail.com
