By Jo Abuodha-Judge of the Industrial Court of Kenya May 2013 Can a judge of a specialized court preside and substantially hear disputes or questions reserved to the exclusive jurisdiction of the High Court. Is a judge capable of being isolated from the Court he is appointed to serve in? To put it the other way, is there a distinction between a Judge and the Court over which such judge presides? And as a corollary; is it the court as an institution or the judge that has jurisdiction? A considerable number of judges of the High Court are presently engaged in the hearing of petitions arising from the just concluded general elections. The Election Petition Rules require that once a judge has been designated as an Election Petition judge, he must be released from his daily cause list until such time as he shall conclude the petitions assigned to him. The petitions have a time-line of six months. What this means is that for the next six months cases or matters within the exclusive docket of such judges stand adjourned. This state of affairs has not only raised concern over imminent delay in non-political cases but also whether judges once appointed are restricted to their respective appointment dockets or they can be re-designated by the appointing authority to deal with situations such as is imminent without the JSC having to worry about additional recruitment to make for the apparent shortfall. This short essay is intended to make a contribution to this debate and make suggestions for possible ways out. The Kenya Constitution 2010 has been undoubtedly lauded by constitutional lawyers, judges and scholars as one of the most progressive of our time. In fact since its promulgation in August, 2010 it may be safely said that it remains the most referred document in any discourse concerning politics, governance and rule of law. A significant number of Kenyans who previously shied away from discussing matters legal, frequently refer to the Constitution to bolster or shield their contestation or contention on any matter whether social, political or domestic/private. This near-constitutional renaissance that is being experienced in the country may be attributed to the previous constitutional order that was widely perceived as undemocratic in terms of being limiting in the recognition and exercise of fundamental rights and freedoms as well as perversely open to manipulation and abuse by the executive. The clamour for the new constitution was therefore informed by complaint by most Kenyans that the state could no longer be trusted to protect and uphold the fundamental rights and freedoms especially where the said executive had acquired illicit ubiquity and omnipresence around fundamental rights and freedoms of the individual, trampling upon them like a colossus. Consisting of 264 articles, the new Constitution attempts to address and or recognize a considerable number of issues and questions that broadly encapsule the spirit and intention of the clamour for it. The Constitution not only contains a more robust chapter on fundamental rights and freedoms, but also creates institutions aimed at operationalizing and or interpreting the inter-relationships protected or created by these rights. Of concern to this short essay is the Judiciary. Historically, whenever disputes arise in societies structured in accordance with the fundamental principles of rule of law and good governance, they have always looked upon judicial institutions as impartial arbiters. For instance, judicial institutions in the USA especially the Supreme Court, have over the years entertained and made pronouncements with finality over disputes concerning Americans either as individuals or institutions. To arbitrate over these societal disputes therefore calls for an independent and impartial judiciary. In the clamour for change, one of the major complaints by the Kenyan public was lack of independent and impartial judiciary. The judiciary under the previous dispensation was perceived by a considerable number of people as an appendage of the executive always jumping to the latter's order without asking how high. It therefore came as no surprise that upon the promulgation of the new constitution the Judiciary became immediately earmarked for overhaul and reform. The Kenya Constitution 2010 reorganized the Judiciary by creating three additional superior courts namely: the Supreme Court, the Industrial Court and the Land and Environment Court. The Supreme Court replaced the Court of Appeal as the final Court in Kenya while the Industrial Court and Land & Environment Court sliced off their specialized jurisdictions from the general High Court. The general High Court and the specialized courts therefore became third in tier of the structure of Kenya's judicial system. The creation of the specialized courts with the same status as the general High Court has in the recent past generated a lot of debate concerning the scope their jurisdiction and whether a judge sitting in these specialized courts has jurisdiction to sit and hear matters within the exclusive jurisdiction of the High Court. Article 165 of the Constitution establishes the High Court and prescribes its jurisdiction. In terms of organization and administration, the article states that the High Court shall consist of such number of judges as prescribed by an Act of Parliament and shall be organized and administered in the manner prescribed by such an Act. Sub-article 3 of this article prescribes the jurisdiction of the High Court but ousters its jurisdiction over matters falling within the jurisdiction of the specialized courts and the Supreme Court. The specialized courts are established pursuant to article 162(2) of the Constitution. In other words,the Industrial Court and the Environment and Land Court are unlike the Supreme Court,the Court of Appeal and High Court; creatures of a statute pursuant to an enabling provision of the Constitution. They are in a strict sense courts established pursuant to the constitution as opposed to courts established by the Constitution. The extent to which Parliament legislates concerning High Court is limited to enacting legislation concerning the number of judges of the High Court, its structure and administration. Whereas the foregoing serves to clarify the premise for my subsequent argument, it is not really the heart of the matter in the discourse on whether a judge of a specialized court can actually preside and substantially hear disputes or questions reserved to the exclusive jurisdiction of the High Court. This question is the heart of the matter. To begin,courts are institutions established either by the Constitution or by an Act of Parliament enacted pursuant to an enabling constitutional provision. They form part of structural organization of the Judiciary as an arm of government. Apart from the Courts, the other institutions under the Judiciary are the National Council for Law Reporting and the recently created Judicial Training Institute. The former is established pursuant to National Council for Law Reporting Act while the latter is created administratively. Article 163 establishes the Supreme Court, article 164 the Court of Appeal and article 165 the High Court and as stated above, these are the only courts established by the Constitution whilst the specialized courts are established pursuant to the Constitution by the Industrial Court Act and Environment and Land Court Act. The titular head of the Judiciary as an arm of government is the Chief Justice whilst the titular heads of the courts and other institutions under the Judiciary are the various Registrars and the CEO of National Council for Law Reporting who report to the Chief Registrar Judiciary as the administrative head of the Judiciary. Courts are therefore judicial institutions that are clothed with jurisdiction personal to them and which can only be ousted by legislation or the Constitution. The question that follows and which is at the heart of this debate is: Is a judge capable of being isolated from the Court he is appointed to serve in? To put it the other way, is there a distinction between a Judge and the Court over which such judge presides? And as a corollary; is it the court as an institution or the judge that has jurisdiction? Judges are appointed under article 166(1)(b) of the Constitution which provides that their appointment is by the President on recommendation of the JSC. Sub-article 2 of the said article sets out the criteria to be used in identifying persons who qualify to be appointed as judges. The first schedule to the JSC Act further makes provisions relating to the procedure for appointment of judges. The selection criteria under the schedule is uniform in most respects regardless of which tier of the court a candidate is being considered for appointment. The role of the JSC therefore is to determine who is suitable to be appointed as a judge based on the criteria set out under article 166 of the Constitution as well as the First Schedule of the JSC Act. That is to say, it is within the sole discretion of the JSC to recommend a person for appointment into any of the tiers or divisions in the Court system provided that person meets the selection criteria for that particular tier or division in the Court system. In other words, JSC is free to interview persons qualified to be appointed as judges generally and subject to availability of vacancy recommend their appointment to any of the courts be it Supreme Court, Court of Appeal, High Court, Industrial Court or Environment and Land Court. From the above, it may have already become discernible that there is a clear distinction between judges and courts in so far as their creation are concerned. Whereas courts are established, judges are appointed. The word “establish” is used in reference to the creation of the Supreme Court (article 163), the Court of Appeal (article 164) and High Court and Specialized Courts (article 165) while the word appoint is used with reference to judges under article 166. Concise Oxford Dictionary defines the word “establish” as “to set up on a firm or permanent basis”. The noun form of the word is “establishment” which means among others, “ a business organization or a public institution. The same dictionary defines “ to appoint” as “to assign a job or role. Blacks Law Dictionary defines the word “establish” as to make or form; to bring about or into existence. And the same dictionary defines appointment as the designation of a person such as non-elected public official, for a job or duty. From the foregoing, it is my argument that courts are institutions in perpetuity presided over by mortal judges. What this means is that, a court does not become dissolved or nonexistent by reason of the death or removal from office of the judge presiding over it. The absence of a judge to preside over a court merely makes it unable to discharge its judge-dependent functions however other administrative functions can be competently carried out by the Registrar concerned as the institutional head. This is perhaps the reason why we talk about a court of “competent jurisdiction” and not “a judge of competent jurisdiction” since a judge at the point of recommendation for appointment has been properly and thoroughly assessed by JSC and found competent to preside over the court to which he or she is recommended for appointment. What this means is that competence in reference to a court is its jurisdiction as an institution to entertain the matter before it and has nothing to do with the incompetence or otherwise of the judge presiding over that court. That is to say the competence of a judge in this regard refers to his own personal capability to handle the matter before him and has nothing to do with the power vested on the court over which he or she presides either by law or constitution. Going by the above definition, it may safely be deduced that the act of appointing judges and designating them to specific courts are two distinct processes yet too close to separate. They may legally speaking be referred to as contemporaneous. What this means is that judges are appointed and then designated to Courts within the judicial system in accordance with their specific skill-sets. It therefore means that the JSC in the performance of its recommendatory function may from time to request the President to re-designate a judge already appointed to any of the Courts within the judicial system without necessarily having to go through the recruitment process. In conclusion it is the author's opinion that the JSC ought to take a more creative and purposive approach while recruiting and designating judges to the various courts in the judicial system in order to allow room for maneuver in cases where certain category of judges may, due to the exigencies of the moment, be tied down on particular cases such as we have now with the petitions and commissions of inquiry whenever they are empaneled and a judge or two is required to preside over them. I have always argued that escalated recruitment of judicial officers though one of the critical steps for tackling myriad problems that have afflicted our judiciary, it ought to be carried out in the context of performance-based audit of the judicial officers on post. That is to say are the judicial officers on post enabled in most if not all respects, to perform optimally? Second, there has been the dicey issue of backlog. Presently there is no clear policy on what constitutes a backlog. Is it the number of cases filed and have not for one reason or the other found their way to the hearing list or are they cases that have been processed through the case management mechanisms in place and ready for hearing but there is no judicial officer to hear them? The other aspect of backlog that remains unresolved is advocate or party generated backlog. This is where a party is not willing to see a matter proceed and is using every trick in the book to delay its progress or conclusion. Does it still qualify as a backlog? And if so whose responsibility is it - the parties or the court? Currently the recruitment of judicial officers appears to be backlog-focused which begs the question that what happens if the baseline survey in mapping the backlog was flawed as I have attempted to demonstrate? Would it have been better to base the recruitment on future projections of future litigation as well? What if after the escalated recruitment the “backlog” gets mopped up leaving the judicial officers with abnormally low caseloads? These are by no means easy questions but I raise them to enrich the debate around judicial reforms currently being undertaken under the Judicial Transformation Framework with the hope that the implementors of the JTF may find them useful to consider in undertaking their noble task.