Why judges should be subjected to elections

The push for a review of the Constitution seems to be gathering momentum. The Building Bridges Initiative (BBI) is expected to publish a report this month on constitutional provisions requiring reforms.

The reform movement focus has been on constitutional clauses pertaining to the executive and legislative branches of government. The debate has been on whether Kenya should discard its pure presidential system in favour of parliamentary democracy.

There have been proposals for expanding the executive with a view to establishing an ethnic grand coalition government; what constitutional theorists refer to as a ‘consociational democracy’.

However, few have discussed the much-needed constitutional judicial reforms, notwithstanding criticism against the third arm of government. The 2010 Constitution strengthened the Judiciary by granting it, among other powers, constitutional judicial review powers over legislation and executive orders.

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Whereas this has tamed legislative and executive overreach, there is no evidence to show the Judiciary has been supportive of various pronounced societal goals, as the fight against corruption or drugs.

One glaring example of failure has been instances where politicians holding positions that require academic degrees, in accordance with provisions of the law, have wriggled out of this requirement using courts despite holding suspect papers.

To remedy this problem, Kenya needs to re-orient the philosophy that underpins judicial power. The idea that one magistrate or judge (or a bench of about five judges) can render correct justice is based on false assumptions.

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One of the assumptions is that the magistrate or judge is free of any bias and is people-centered. A philosophy that appreciates “justice” is justice according to the people’s views, not per one magistrate’s view, would assist Kenya to re-orient the Judiciary towards aiding it to achieve social goals.

As a consequence, Kenya can learn from the best and consider two radical reforms.

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The first entails introducing a judicial retention election. This is a periodic process in which a judge is subject to a referendum held at the same time as a general election. The judge is removed from office if a majority of votes are cast against retention.

A judge is deemed to have been retained if ballots cast in favour of retention outnumber those against. United States of America, Japan, and other developed countries use this system.

The second reform is to introduce jury trials like in the UK and many other developed societies. A jury is a sworn body of people (the jurors) convened to render a verdict officially submitted to them by a court.

The advantages for both retention referendums and trial by the jury include checking the abuse of governmental power, injecting community values into legal decisions, and aiding public acceptance of legal determinations.

According to the University of Chicago Law School lecturer Jenia Iontcheva, sentencing decisions are well-suited to being made through a process of deliberative democracy rather than by experts such as judges, since they involve deeply contested moral and political issues rather than scientific or technical issues.

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Judicial referendums

She argues that since sentencing requires individualised, case-by-case assessments, sentences should be decided through small-scale deliberation by juries, as opposed to having lawmakers codify general policies for mechanical application by judges.

These proposals may be criticised on the basis they are expensive to  implement. For example, retention referendum may call for extra funding from the Treasury.

The jury system calls for extra costs and potential delays in trial procedures. However, costs for judicial referendums can be managed if the Kenyan electoral body leverages on economies of scale

Again, the benefits that Kenya will accrue justify this expenditure. There are those who may view juries as being uneducated, hence cannot render fair justice. This is an elitist view that ignores standpoints of the common man. In a democracy, the common man must be the focal point of everything, justice included.

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Measures can be put in place to check potential corruption, including restrictions when making final deliberations. Again, chances of corrupting a single magistrate or judge are higher than corrupting a whole team of ordinary citizens who are affected by the issue at hand.

In any event, article 1 of the Constitution vests sovereignty in the people of Kenya. With the Judiciary now making key decisions, it is time to make it a people-centered institution.

Mr Kangata is Murang’a County senator and lecturer of law at Catholic University

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