Opinion: Strong Judiciary in Kenya comes of age after historic ruling

 

Kenya has been long known to have a biased Judiciary. In fact, the judicial body received less than favourable reviews, particularly during the Kanu era.

In 1992, Kenya held its first multi-party elections. Kenneth Matiba, a presidential candidate, challenged the election of President Moi in the case of Matiba v Moi (Civil Application No. NAI 241 of 1993).

This was the first ever election petition filed against a sitting President in Kenya. However, this case did not succeed.

In 1997, Mwai Kibaki filed a petition to challenge the election of President Moi and just like the previous petition five years before; the case did not succeed. Most presidential petitions against the election of a sitting president in Kenya and in Africa favoured the incumbent.

Injustices

But a tidal wave of significant changes began in 2010 with the promulgation of the new constitution. The historic injustices that took place in the 90s initiated the process of replacing the previous constitution with the hope of improving human rights, reducing the powers of the president creating an independent election body and strengthening the Judiciary, among others.

When the new constitution came into force, the first arm of government to undergo reforms was the Judiciary. These reforms were necessary to strengthen the Judiciary and protect it from government interference.

The judicial tribunal began a series of important adjustments, which in part led to the historic September 1, 2017, Supreme Court decision.  

In 2013, Raila Odinga disputed the election of Uhuru Kenyatta but lost the petition. This was the first petition to be filed under the 2010 constitution.

In 2017, he disputed the re-election of Uhuru Kenyatta again citing irregularities in the election process. He won the petition and the Supreme Court nullified Uhuru’s re-election. The court went further to instruct the election body to hold fresh elections in 60 days.

This was a historic moment in Kenya – the first country in Africa to nullify the election of a sitting President. It signified a new era of the Kenyan Judiciary. The determination of the case showed that the Judiciary is impartial and judges are expected to uphold the law in accordance with the constitution.

Undoubtedly, this decision has forever enshrined Kenya’s Supreme Court as one of independent, just and incorruptible courts on the continent.

Equally, in the pages of the World’s judiciary history, Kenya will forever be known as a trailblazer, joining the Maldives, Austria and Ukraine.

Petitions

Following the historic ruling, a total of 308 election petitions have been filed at the high court in the respective counties. In 2013, a total of 188 petitions were filed.

This number has significantly increased, which indicates that the Judiciary is capable of handling the petitions.

The manifestation of an independent Judiciary is visible in article 159 and 160 of the Constitution. The judges are guided by the law and of the constitution as they deliver their judgements.

Article 159 and 160 further gives the judges immunity while they perform their functions without harassment on any level.

Further protections make the process of removing a judge and the Chief Justice under the new 2010 constitution arduous and lengthy.

Article 168 (2) stipulates that the removal of a judge may be initiated only by the Judicial Service Commission (JSC) acting on its own motion or on the petition of any person to it. According to article 168(3) a petition by a person to JSC shall be in writing, setting out the alleged facts constituting the grounds for the judge’s removal.

Consideration

The JSC is thereafter required by law to consider the petition and, if it is satisfied that the petition discloses a ground for removal, send the petition to the President.  

The multi-layered process of removing a judge of the superior court the President shall, within 14 days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the JSC. In case of a judge other than the Chief Justice, the JSC will appoint a tribunal to hear the case.

It is important to note that the judges are now well remunerated with several benefits added to their payout packages as indicated in Article 163 of the constitution.

The funds for use by the judiciary are drawn from a consolidated fund and not approved by parliament as previously directed under the previous constitution.

This clearly indicates how judges will be remunerated and hence cannot be easily compromised.