The illusion of war against the Judiciary is unjustified

Recent events have shown a consistent wave of criticism against the Judiciary, particularly the Apex Court and the Chief Justice. This war has been spearheaded by a few senior legal practitioners, and indeed, there are several petitions presented to the Judicial Service Commission seeking the removal of several judges and the entire Supreme Court bench.

The focus of this article is, however, not on the leading proponents of the fight but a challenge on grounds of the criticism and the proposed remedy of the removal of Supreme Court judges, or indeed any other judge. The judiciary is not immune to criticism as with any other arm of government in the constitutional design of our country. 

What Kenyans must reject is a choreographed and targeted blanket war against the Judiciary as an institution and its officers. Among the three arms of the government, the Judiciary stands as the most protected arm by the Constitution. This protection begins from Article 159 of our Constitution, which provides that ‘judicial authority is derived from the people and vest in, and shall be exercised by, the courts and tribunals established by or under this Constitution.’ This is a clear answer to the cliché that judges are not elected and, therefore, should always freak and worry when making decisions regarding other arms of government.

In the current constitutional dispensation, judges hold sweeping powers from the people of Kenya, and this is the core reason why it is the people who must stand up in defence of the Judiciary whenever it is vilified in the guise of ‘seeking accountability.’ Apart from this, the Constitution provides that judges are to be appointed through the Judicial Service Commission after competitive interviews and not directly by the President as it was in the old Constitution.

Judicial independence is protected in the Constitution and judges have the discretion to make any decision within the law without having to look left and right in fear of events after the outcome.

This allows judges to even err on the law, such errors can always be remedied through appeal processes provided for in law. A quick peep into the petitions against the judges filed before the JSC, without concluding on the merits shows that they simply range from ones attacking judicial independence to others laced with personal vendetta and other ulterior political motives. When allegations are raised, for instance, that a judge quoted a song in their judgment and not credible sources of law, what does it portend?

Openly ridiculous, some are still caught up in the shackles of colonialism where the law was only the law if it is ‘white.’ Not to deviate, two things: a quick look at the said decision shows the judge did not use the song as the ultimate reason for which the decision was made but as a genre of literature to underscore the point they were putting across.

Secondly, everyone knows that in the modern era of the law, it has to be emancipated from the rigidity, complexity and boredom of the past—put differently, the law must speak to the man on the streets and not the elite only affair. Further claims will even shock you, allegations that for the past year, most of the Supreme decisions have been uniform and not many dissenting opinions. This alone should demonstrate the proverbial jurisPESA (a phrase that has been used by the proponents of ‘judicial purge’ to mean decisions of law made as a result of money or corruption).

Even where judges are accused of actions that warrant removal, the said actions must fall within the five facets provided for under Article 168 — gross misconduct or behaviour, incompetence, bankruptcy, breach of code of conduct of judges and inability to perform functions of the office due to mental or physical incapacity. Even then, the allegations must be credible, specific to the particular judges and the particulars laid out with evidence attached.

The JSC and, indeed, the Judiciary have their share of challenges, but we cannot sort them out by destroying them haphazardly through the political route. Even genuine calls for accountability of the Judiciary can be hijacked to serve sectarian political interests and hand over the Judiciary to be an appendage of the executive. Further, the use of social media as a platform to drive this war is deliberate—this is so since judges have no right of reply through social media, judges speak through their pens.