New law ushered bold rulings and gave Judiciary a breath of fresh air

Prior to the 2010 Constitution, the Judiciary was one of the institutions dogged by controversy, lack of public trust, corruption and lack of independence.

But with the promulgation of the new Constitution, a fresh air of optimism was injected into the institution with new crop of bolder judges that took advantage of the independence and security of tenure to exercise their mandate to regain public confidence.

For an institution that had for years been viewed as an accomplice to violation of human rights, the establishment of the Supreme Court and the Judicial Service Commission were the hallmark of transformation.

Competitive process

For the first time in Kenyan history, the public witnessed the appointment of two chief justices – Dr Willy Mutunga and David Maraga – and other judges through a competitive process and hence bolder decisions, the landmark of which was the nullification of the presidential election in 2017.

Despite the promise of the new Constitution, both legal experts and the public agree that there have been hits and misses in the administration of justice.

Former Law Society of Kenya Chief Executive Officer Apollo Mboya stated that creation of the Supreme Court and the JSC were among the best gifts the 2010 Constitution gave the Judiciary.

“Before that, you could just wake up one morning and hear that someone has been appointed and sworn in as a judge but now there is competition and accountability in the appointment process,” said Mboya.

He added that the climax of celebrating the new Constitution in the Judiciary should be the Supreme Court’s nullification of the 2017 presidential election which proved how independent the Judiciary has become.

Constitutional lawyer Kibe Mungai added that the 2010 Constitution uplifted judicial independence and separation of powers between the three arms of government which has cemented the place of Judiciary in the governance system.

According to Mungai, expansion of court system to include the Supreme Court, Environment and Land Court and the Employment and Labour Relations Court have led to a new era with bold decisions which are a testament of a robust Judiciary.

Lawyer Eunice Lumallas agrees that the Constitution brought new life and growth in the Judiciary by creating judicial reforms, independence, enhanced funding and allowing the institution to play supervisory role over decisions made by other State agencies.

“We have substantive justice where a case cannot be dismissed on technicality. This has helped citizens to challenge unfair administrative actions and we have seen many decisions and laws passed by the Executive being declared unconstitutional,” said Lumallas.

For David Mwaniki, an advocate, the promulgated Constitution came with a blessing of opening up courts and removed restrictions requiring any person to justify their direct interest before being allowed to file a suit.

Activist Okiya Omtatah, famed for his public litigation against the high and mighty in government, agrees that the 2010 Constitution opened up space for the Judiciary to accept any person claiming his right has been violated.

“The Judiciary has performed fairly well in enforcing fundamental rights in public interest cases, only that it is let down by failure to obey its orders by the Executive,” said Omtatah.

Mwaniki agreed that opening up of courts and establishment of the specialised courts has facilitated access to justice by allowing expert and specialised judges in those fields to adjudicate disputes quickly.

Bold decisions

Former Law Society of Kenya president Eric Mutua said the independence of the Judiciary in recruiting judges and the ability to check government excesses through bold decisions have promoted socio-economic rights of the public.

Mutua added that despite the limited resources and frustration created by disobeying court orders, the Judiciary has done well under the 2010 Constitution.

Lawyer Angela Mwadumbo said the security of tenure for judicial officers brought by the new Constitution has allowed them to work independently without fear of victimisation.

“Now that there is a clear procedure of appointing judges and with their security of tenure, they can dispense justice without fear of victimisation. The Judiciary has tried to be vibrant in the spirit of the new Constitution despite the challenges of disobeying court orders,” said Mwadumbo.

Despite the silver lining brought by the 2010 Constitution, there is a general feeling that the supreme law has failed the Judiciary in some aspects.

According to Mungai, there is a cold working relationship between the Judiciary and the Executive as a result of the constitutional independence.

Although creation of the JSC has been lauded for promoting judicial independence, Mungai said there are fears that its composition has turned it into a cartel which influences the appointment of judges, some of who do not deserve to serve.

“The composition of the JSC as provided in the Constitution can easily turn it into a cartel to appoint who they want as judges. It is the reason why appointment of senior judges should be subject to vetting and approval by Parliament,” said Mungai.

Mboya agrees with the thought, stating that the Constitution has not cured the problem of composition in the JSC which is dominated by the Executive's appointees.

Another concern is the Supreme Court being the only and final arbiter in some cases like the presidential election petition.

According to Mungai, it would be more prudent if the Constitution would provide a scenario where presidential election petition is first heard by at least five judges of the High Court before it finally ends at the Supreme Court.

Ms Lumallas argued that the Constitution cannot be everything in transforming the Judiciary, like lazy and corrupt judges who can only be dealt with through administrative actions.

“Because they have security of tenure, some judges decide to be lazy. There is not enough mechanism to address the laziness and corruption which is still rampant in the Judiciary,” said Lumallas.

Corruption, misconduct and delayed justice still remain a challenge to the judiciary which has seen some judges being suspended.

Axed judges

Among those who have faced suspension over allegations of corruption and misconduct are retired Supreme Court Judges Philip Tunoi and Jackton Ojwang, former Deputy Chief Justice Nancy Baraza and High Court Judges Joseph Mutava and Martin Muya.

According to Mutua, the Constitution has also failed in providing mechanisms through which court orders can be enforced in the event that the Executive refuse to obey, like it has happened by the president’s refusal to appoint 41 judges recommended by the JSC.

The lawyers also agreed that there has been some lack of consistency in the delivery of judgments where judges take different approaches in interpreting the Constitution.