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The Independence of the Judiciary in Kenya1
Justice Jackton B. Ojwang2
2008.
DEPICTING THE JUDICIAL FUNCTION:
AN INTRODUCTION
The definite article in the formulation of the Conference theme, is itself a value statement on a governance principle: that, in constitutional theory and practice, independence of the judiciary is a vital element. There is no need to canvass that value choice here; but its relevance will emerge all by itself, in the course of this presentation.
In a recent criminal appeal that came up before me, Stephen Njoroge Kariuki v. Republic[1], the appellant had been charged, alongside his five siblings, with the offence of malicious damage to property contrary to s.339 of the Penal Code (Cap. 63, Laws of Kenya). The particulars were that the accused persons, on 8th June, 2004 at Gitaru Village in Kiambu District, within Central Province, wilfully and unlawfully damaged a dwelling house valued at Kshs.250,000/=, the property of Elizabeth Murugi Kariuki. The complainant contended that the said house had been bequeathed to her by her deceased father; but her siblings denied this claim of inheritance, insisting they could very well demolish the house, as they, rather than the complainant, had raised the money that covered the cost of putting it up.
Clearly, the demolished house was part of the estate of the deceased; but the succession question had not been the subject of the decree of a court. It was apparent that the complainant and her son were already using the said house, though this was not to the liking of the accused persons.
In upholding conviction, and affirming sentence as imposed by the trial magistrate, I thus found and held:
“After considering all the evidence in this case, I have come to the conclusion that it is common cause the subject house was part of the estate of the deceased. Since no probate and administration case had as yet been dealt with by a court of law, it follows that no member of the deceased’s family could have asserted a right of ownership with finality, over the house. Final rights would only be known after a decree of the probate and administration court has been issued. The significance of the foregoing point is that no members of the deceased’s family had legal rights to engage in an operationally-final act, such as demolishing the house in question. Doing so would have been unlawful, even if [the complainant] did not have a complaint to make.
“Demolition of the subject house was doubly unlawful because, from the evidence, [the complainant] had legitimate claims touching on the house: she had possessory claims in relation to the subject house. Such claims could not be defeated by forcible action – the act of demolishing the house and sharing out extracts therefrom.
“This court is guided by the rule of law; and the rule of law dictates that, on property upon which an innocent claim of whatever nature is being made by [somebody], the said claim is not to be nullified by a different person by means of sheer violence, without recourse to lawful procedures – such as peaceful request, negotiation, proper notice, or judicial settlement.
“By violent action upon the subject house, without regard to the claimed interests of [the complainant and her son], the appellant and his colleagues were involved in an unlawful act; and their brazen challenge to the complainant’s claims, without regard to the possible validity of those claims, was evidence of the malicious element in the demolition of the house.”
This is my starting point in visualizing the phenomenon, law; its place in civilised life; and the role of the judiciary therein, so we may attribute to the judiciary, and demand of it, as a standard expectation, independence.
The picture thus painted is not novel, and is indeed illuminated by profound scholarship well-recorded. Ronald Dworkin in his locus classicus, Law’s Empire, [2] thus remarks:
“We live in and by law. It makes us what we are: citizens and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up in jail, all in the name of what our abstract and ethereal sovereign, the law, has decreed ...We are subjects of law’s empire, liegemen to its methods and ideals...”
As he made the foregoing remarks, Dworkin whose observations were undoubtedly based on the Western experience of law and legality, was certain (as can be read from his whole work), the continual agent of law-making was the judge. For, nearly two decades earlier, his fellow American scholar, Professor John P. Dawson, had published another classic, The Oracles of the Law2a, in which he expressed agreement with Blackstone, that judges were “the depositaries of the law, the living oracles”2b.
THE PROBLEM OF PUBLIC POWER, AND THE CASE FOR AN INDEPENDENT JUDICIARY
Public power takes many forms, and is presumptively exercised by virtue of constitutional authority, and in the public interest – its main agency being the executive branch of government. For a brief picture of the nature of these powers, I may draw from an earlier stud[3]:
“The foremost characteristics of the Executive, as the main repository of public decision-making in any country, are: the commanding role in matters of war and peace; the management of international relations...through diplomatic initiatives; the authority in respect of internal order...[Practical factors], however, have placed various other items on the Executive’s agenda, and notable in this respect are responsibilities in matters of economic and social welfare.”
Such powers by their very nature, are not only ill-defined, but also far-reaching; and while in motion are so easily abused, or annexed for partisan, or personal ends! And whenever that happens, the resulting damage falls upon either the public interest, or the individual. Where the public interest is the sufferer, and it lacks the legal personality to seek specific redress, it becomes a diffuse public claim, to be resolved by the electorate at periodic elections, or to be scrutinized by the elected Parliament during its sittings. But on many occasions, the victim of abuse of public power is the citizen. The citizen has no capacity to move the nebulous electorate, or the cumbersome Parliament, to solve his or her grievance. It is the judiciary that comes in handy, as a structured institution, at which a claim can be lodged at the registry, and set for hearing before a court, within a determinable period; and the court is invested with jurisdiction and power to determine the question, and issue binding decrees. The exercise of public power is accountable to the electorate and the legislature only in the long and medium terms; but in the short term, within the constitutional set-up, the individual can only look to the judiciary, for redress.
However, in the scheme of power, and of the efficacy of institutions, the Judiciary is not able to compete with an Executive which has its roots in the Legislature. Just as Alexander Hamilton, in relation to early constitution-making in the United States of America, thus said,[4]
“Whoever considers the different departments of power must perceive that..the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution...the executive not only dispenses the honours but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over the sword or the purse; no direction either of the strength or the wealth of the society and can take no active resolution whatever. It may truly be said to have neither Force nor Will but mere judgement...” –
so does it remain the case today, and in most countries of the world.
Being thus beleaguered, in the nation’s setting of constitutional organs, how is the Judiciary expected to respond to the problem of abuse of pubic power? Why should the oppressed citizen repose trust in such a Judiciary, as an institution of safeguard?
Firstly, the citizen has to trust that the court’s judgement has a finality, and is entitled to obedience, as a matter of constitutional obligation. Then the citizen has to trust that the Judiciary shall be guided by rules, principles and discretions not influenced by the very power-wielders who cause oppression, or other harm. That is to say, the citizen expects the Judiciary to be independent, in its decision-making. And lastly, the citizen expects the Judiciary to be fair, in its decision-making. All these attributes underline one theme, independence, as the hallmark of the Judiciary, in a constitutional set-up that protects the citizen, as an individual, even as the nation’s broad social goals are pursued by the relevant public agencies, which are driven by a political-cum-administrative mandate.
As compared, therefore, to the other organs of government, the Judiciary must be well-anchored upon a foundation that does not flinch at pangs inflicted by the public power, nor pander to attractions of things allied to such power; that foundation sits in the stable of law, and legality; it constitutes what Ronald Dworkin call’s “The Law’s Empire.”
The value of judicial independence is not limited to the the protection of the citizen from power-abuse; it also feeds into the general quality of governance, and of the interplays of the different organs of government. This principle is expressed in The Bangalore Principles of Judicial Conduct[5]:
“A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other protections fail, it provides a bulwark against any encroachments on its rights and freedoms under the law.”
The judiciary addresses the problem of public power, firstly, when the individual challenges a particular exercise of such power, by virtue of constitutional guarantees, or of the provisions of statute law. But, secondly – and more importantly – the judiciary deals with this problem by its procedures of review of administrative action. This is a well-recognised sphere in which the judicial function is defined; and the following passage taken from D.M. Davis’s article entitled “Administrative Justice in a Democratic South Africa”, gives an adequate depiction:
“The classic judicial approach to review is based on the proposition that administrative agencies can be rendered non-threatening to a democratic enterprise provided they are made adequately accountable to the rule of law...”[6]
The judicial review jurisdiction is generously employed, in the common law countries in particular, to subject perceived irregularities in the process of administrative decision-making by public officials or public bodies, to the terms of the law.[7]
PUBLIC POWER: ITS LINKAGES TO POLITICAL SCENARIOS, AND ITS PARTISAN NATURE
The “Executive Stall” and its Ways
For judicial independence, public power is problematic from two standpoints – the first of which has already been considered. Where public power takes perceptible management and administrative form, its main ramifications, on the negative side, are: (a) whether it involves a distortion of prescribed procedure, and seeks to benefit a subjective cause; and (b) whether it oppresses and deprives the individual, in one way or another. Such injuries of public power are precisely the ones the Judiciary has endeavoured to set right. It is because the lines of propriety have been prescribed, and so the Judiciary can readily hold the power-wielders to account.
The second dimension of public power, however, is more intrinsic in the social institutions, and it has not lent itself readily to the cutting edges of the recognised legal techniques. Not only has this dimension of public power escaped judicial control, by-and-large, but, more disturbingly, it has taken command of the very sources of the momentum of public institutions, and has had impacts even upon the character of the judiciary itself.We are concerned with the creation of leadership, in relation to Legislature-cum-Executive, and in relation to Judiciary.
Leadership of the Executive Branch has emerged in tandem with the process of electing a Legislative Branch. But, electing a Legislative Branch is a function dominated by the partisan interests which have sprung up, by their unregulated dynamics, from the grassroots. The partisan interests that brought forth the parliamentarians, a number of whom then graduated to the “Executive Stall”, remain alive, through and through.
Then, how is the judicial cadre brought into being? Not directly from the grassroots. Indeed, the judicial calling is more elitist; it takes considerable learning and specialisation. So the judicial cadre has been sourced by somebody; and the partisan stand characterising those in the “Executive Stall” could not have been entirely indifferent, as the judicial cadre was being selected.
This carries a danger for the cherished principle, independence of the judiciary. Is the judicial cadre likely to want to do one good turn to the partisan interests that selected it? If yes, then judicial independence will have suffered a set-back – and the sufferer would be the individual who is being oppressed by public power; or the public interest which is being relegated to the goals of partisanship, at the seat of public power.
Developed and Developing-Country Scenarios
Partisanship, in relation to the constitutional set-up, means something different in the developed, industrialised nations, from what it means in the relatively-new States of Sub-Saharan Africa. The following passage in an earlier work[8] will shed light on this point:
“The prevailing philosophy in Western countries is that political parties ‘provide alternatives upon which the life of the State can be moulded and shaped’[9]. This may be regarded as a fundamental premise to the development of governmental institutions. Upon it, structures have been evolved which take the form of legal phenomena. Thus one perceives, even at this preliminary level, that the party system forms part of the fundamental assumptions that are attached to the constitutional and legal set-up.”
Partisanship in the industrialised and urbanised countries, is essentially a term that defines differences sparked by social and economic forces, by prosperity or lack of it. But in the developing countries where there are many more factors of social differentiation, partisanship has numerous racial, ethnic, cultural, religious, familial, generational, gender, inspirational etc. dimensions.
The partisanship at the “Executive Stall”, therefore, which may influence the form and shape of the judicial cadre, is different in Africa from what it is in the economically-advanced countries of the West.
How far will the partisanship of the Western countries impact upon the prevailing notion of independence of the judiciary? And what would be the position in the countries of Africa? This will remain a matter for conjecture.
THE CONVENTIONAL SAFEGUARDS FOR JUDICIAL INDEPENDENCE
The political challenge to judicial independence aforementioned is to be found in all countries, but the Western countries, with their more structural and more institutional foundation to partisanship at the “Executive Stall”, have a more rationalised safeguard-scheme for that constitutional principle. In those countries, judicial independence is perceived as a vital pillar in the constitutional order; and so, undermining this principle will raise a political question which, in the electoral democracies of the countries concerned, may work to the detriment of those who contest its status, as a safeguard for the people’s rights.
Such a position may be gleaned from works of scholarship. R.W.M. Dias in his classic work, Jurisprudence[10], remarks:
“[E]very constitution has to be interpreted, so the effectiveness of its restraints rests ultimately with the interpreters, i.e., the judges and the measure of their sympathy with and independence of government.”
Dias further observers[11]:
“The success or failure of judicial control of the abuse of power, whatever form such control may assume, depends on the judges being independent of those wielding the power. Independence means far more than immunity from interference; it means that they are free to bring their own sense of values to bear in considering legislation and do not simply reflect the values of government. For there can be no protection against abuse of power, even when safeguards are enshrined in the Constitution, if the judges who have to interpret these whenever the government is challenged are only puppets of the government” [emphasis supplied].
The learned scholar squarely touches on the dangers to constitutional principles, where the judges are beholden to the “Executive Stall” and will not determine matters before them in accordance with their own sense of right.
In the same strain, Dennis Lloyd (later Lord Lloyd of Hampstead) in his classic, The Idea of Law, [12]wrote:
“The notion that the third arm of the constitution, the judiciary, should be entirely separate from both the legislative and the executive powers, seemed...to be based on more solid foundations than the somewhat arbitrary division between the legislature and the executive. Two principles could in this instance be invoked, each of which might be regarded as entitled to a good deal of weight. In the first place there is the question of the independence of the judiciary. If the laws are to be fairly interpreted and impartially applied it is obviously important that the judiciary should enjoy an independent status and be free from the political pressures engendered by association with either the executive or even the legislature itself, dominated as the latter is likely to be by the divisions of party politics” [emphasis supplied].
And Lord Denning reposes his trust in the judge, so long as the judge functions independently:
“[The judges] should develop the law, case by case, as they have done in the past: so that the litigants before them can have their differences decided by the law as it should be and is, and not by law of the past.”[13]
With judicial independence thus perceived, and with the obvious awareness of the partisan threats to the hallowed principle, the Western countries have adopted certain safeguards, to protect it from compromises emanating from the “Executive Stall”. These include–
i) In respect of the mode of appointment of judges;
ii) Providing for tenure for the judge;
iii) Collective concurrence on a candidate for appointment as judge;
iv) Commitment to the governing ethos of judicial independence;
v) Absolute care in the regulation of terms of service and promotion, for judges.
Lord Lloyd of Hampstead has considered the application of these several criteria, in relation to his country, Great Britain. He notes as follows, and in relation to each of the foregoing five points:
i) Experience shows that Great Britain has achieved the “development of a strong tradition in favour of ignoring political considerations when making judicial appointments”[14];
ii) Judges hold office until retirement[15];
iii) Appointment of judges is the outcome of concurring opinions[16];
iv) Operation of a governing ethos of judicial independece[17];
v) A judicious approach to terms of service and to promotion[18];
and on this point, of promotion and terms of service, the learned author writes:
“The question of promotion is almost as important as that of initial appointments in regard to judicial independence. For if the judiciary has to look for its future prospects to the politicians they may be unwilling to incur executive displeasure and so mar the chances of later promotion, even though they are secure in their posts. In England this difficulty has been largely overcome by avoiding too hierarchical a pattern in regard to the higher judiciary. A certain uniformity of status has been retained in regard to all the higher judiciary from the High Court level to the House of Lords, particularly by keeping salaries on almost the same level throughout and by avoiding any form of promotion on the basis of seniority. This system has been greatly aided by the historical antecedents of the English judiciary and its exceptionally strong traditions and long-established status”[19].
JUDICIAL INDEPENDENCE IN THE AFRICAN CONTEXT, AND THE KENYAN SET-UP
The Challenges of the African Context
It is quite apparent, from the foregoing account, that judicial independence will remain a more distant ideal in the African countries, than is the case in the economically-advanced countries of the West. Although it is possible that participants at this conference from different African countries may present a picture showing the status of judicial independence in their own countries to be rosier than it is elsewhere, such a depiction is apt to miss the fundamental point: in virtually every one of the African countries, the very diverse social condition greatly complicates the political profile, and brings forth a much varied scheme of partisanship at the “Executive Stall;” and such a setting is, at least potentially, a major compromise to the independence of the judiciary. For, each of the many partisan elements will be seeking to influence what goes on at the judicial plane; the ethos which is supportive of the norms of judicial independence will be largely enfeebled; informed and diverse consultation before the recruitment of the judicial cadre is likely to be minimal; principled regulation of terms of service, and of promotion, may also be lacking. So, the special socio-political factors which, in the Western society, sustain the commitment to the principle of judicial independence, may not comfortably co-exist with the typical African political condition.
Yet, at international deliberations fora, such as the multi-lateral treaty-making events, and at international bodies such as the International Commission of Jurists, the typical African country will stand with other States, and extol the virtues of judicial independence. But in operational terms, the reality of judicial independence in Africa is likely to depend, firstly, on the limited technical safeguards specified in the national Constitutions; and secondly, on the competence and personal integrity of the individual judge. However, such gains as may be realised for the concept, are apt to be reversed by constraining factors of dependency, such as lack of financial autonomy.
The Kenyan Set-up
The challenges of the African context, discussed above, are bound, in their very nature, to affect the Kenyan case. The effect is that the Kenyan situation has largely to be seen just in the context of technical arrangements that are set out in the Constitution.
In Kenya, appointments to the Judiciary at the lower level (of Magistrates) is the responsibility of the Judicial Service Commission, established under s.68 of the Constitution, and presided over by the Chief Justice, who is the head of the Judiciary. Given the considerable numbers who occupy the magistracy, it is not in the very nature of things possible to subject the process of appointment to an undue amount of partisan influence; besides these appointments are made competitively, on the basis of interviews. So in that regard, conditions for independence, in the measure in which they attach to mode of employment, are not necessarily compromised. Whether or not this will contribute to judicial independence, must thereafter depend on the terms and conditions of service; and by all accounts, these should be improved, so as to stabilize the many serving magistrates, as appropriate.
With regard to the “higher judiciary”, it is the Head of State who makes the appointments: at his own discretion in the case of the Chief Justice; and with the advice of the Judicial Service Commission, in the case of the remaining judges. The only qualification is that the appointee is to satisfy the prescribed professional requirement[20]; and the conditions are: being or having been a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth, or in the Republic of Ireland, or a court having jurisdiction in appeals from such a court; being an advocate of the High Court of Kenya of not less than seven years’ standing; having held certain professional qualifications provided for in the Advocates Act[21], for a cumulative period of at least seven years.
The members of the “higher judiciary” are accorded tenure of office, and are to retire only upon attainment of retirement age22, though they can be removed from office for misbehaviour, where a duly-appointed tribunal has investigated their conduct and recommended termination of service.
Such safeguards will, no doubt, make some contribution to the principle of judicial independence; but they would not be sufficient, if there is no unwavering commitment, at the political level, to the ethos of independence of the judiciary. Such a commitment must, in the case of Kenya, be seen as dependent on a strengthening of democratic traditions, which focuses the nation’s attention upon certain irreducible values, seen as a mark of political civilization.
There is a notable element in the Kenyan governmental set-up, and with regard to the Judiciary, which is clearly unfavourable to judicial independence. The Judiciary lacks control over the financial resources which it requires to fund its operations, being squarely dependent on Executive-cum-Parliament which determines the annual budgets. If the Judiciary must always look to other constitutional agencies for essential funding, this is likely to compromise its independence. Ideally, a proportion of the government revenue ought to be dedicated to the Judiciary’s operations, and should be payable outside the framework of periodic approvals.
ENDNOTES
1 Paper Presented at the Conference on the Independence of the Judiciary in Sub-Saharan Africa: Towards an Independent and Effective Judiciary in Africa. Imperial Resort Beach Hotel, Entebbe, Uganda, June 24-28, 2008
2 LL.B., LL.M. (Nairobi); Ph.D (Cantab); Puisne Judge in the Criminal Division, High Court of Kenya, Nairobi
[1] Kariuki, Stephen Njoroge v Republic Criminal Appeal No 600 of 2005.
[2] Dworkin, R., (Ed) (1986) Law’s Empire Cambrige: Belknap Press p 7.
2a. John P. Dawson, JP., (Ed) (1968) Oracles of the Law Ann Arbor, Michigan: University of Michigan Press p 11.
2b. Blackstone, W., (Ed) (1979) Commentaries on the Law of England London: University of Chicago Press Ltd Vol I p 69.
[3] Ojwang, JB., (1990) Constitutional Development in Kenya: Institutional Adaptation and Social Change Nairobi: Acts Press p 96.
[4] Hamilton, A., (1788) Federalist: Judiciary Department New York: McLeans No 78.
[5] Edn of March, 2007.
[6] Corder, H et al (Eds) (1995) Administrative Justice & Democracy within the South African Context: “Controlling Public Power” Cape Town: University of Cape Town p 23.
[7] Republic v Commissioner of Income Tax ex parte SDV Transami (K) Ltd [2005] 1 KLR 603; [2005] 1 EA 346; Republic v Attorney-General & another ex parte Waswa & 2 others [2005] 1 KLR 280.
[8] Op.cit (n.3), pp. 42 – 43.
[9] Neuber, M., et al (Eds) (1986) Law on Political Parties: Documents on Politics and Society in the Federal Republic of Germany 3rd Edn Cologne: Inter Nationes p 5.
[10] Dias, RWM., (Ed) (1976) Jurisprudence London: Butterworths 4th Edn p 128.
[11] Ibid., p.129.
[12] Dennis Lloyd, D., (Ed) (1973) Idea of Law London: Penguin Books pp 256, 257.
[13] Lord Denning, L (Ed) (1979) Discipline of Law London: Butterworths p 40.
[14] Op.cit. (n.12), p.257.
[15] Id., p.258.
[16] Id., p.258.
[17] Id., p.258.
[18] Id., p.258.
[19] Id., p.258.
[20] Constitution of Kenya sections 61, 64
[21] Advovates Act (cap 16)