Perceptions of judicial independence: a niggling concern

Separation of powers as an unenumerated constitutional principle strives to protect another important constitutional good: the principle of judicial independence.

The Constitution of Kenya divided the Government into several branches principal amongst these being the legislature, the executive and the judiciary. The division is important because it gives specific powers to each branch and sets up a scheme of an arrangement called checks and balances. The essence of checks and balances is to make sure no one branch would be able to control too much power. It creates a separation of powers allowing each branch to specialize in its area of competence.

Separation of powers as an unenumerated constitutional principle strives to protect another important constitutional good: the principle of judicial independence. Judicial independence protects individuals and the public in general. The protection of judicial independence is enforced so that the parties will know they are dealt with fairly, that they will receive a fair trial, and a fair hearing from a judge, who is insulated from any improper outside influence and who is bound only by his or her oath of office, which is to render justice according to law.

Related to judicial independence is an argument, for the existence of a causal relationship between judicial independence and the perception of judicial independence. The perception of judicial independence hinges on how the population or large segments thereof construes the independence of the judiciary. Courts may be argued to be fully independent but if the independence is not seen by the public in general, then the causal relationship is thrown into disarray.

It is against this background that this publication broaches the importance of the perception of judicial independence for the umpteenth time. It had been reported that the President of the Republic Dr. William Ruto had been invited to attend the Environment & Land Court tenth anniversary celebrations held between November 28 and December 2 at the Pwani University in Kilifi County. Although he did not attend the function, sending a member of his cabinet to represent him, the invitation extended to the President raised fundamental concerns about the perception of judicial independence, bearing in mind that the court ceremony was not a state or national event that warrants the attendance of the President. State functions are ceremonies that embody national rituals and celebrations that are a manifestation of collective identities, glorifying the nation and strengthening the national community.

The marking of the ten years of the existence of the Environment and Land Court is certainly not a national celebration necessitating the attendance of the President in his capacity as head of state. This celebration event is uniquely a judicial affair and not a state event. Protocol handlers in the judiciary should have known this obvious fact. The President and indeed all politicians should have no reason therefore to attend the anniversary marking ten years of the existence of the Environment and Land Court, which ironically was put in place as a specialized court at Article 162 of the Constitution as a bold constitutional statement, signifying a departure from the politics and murk that has characterized land as a factor of production since independence. Luckily for Kenya, national events have subtle constitutional hints as a marker of a radical departure from our charred and erratic constitutional past.

The judiciary should be alive to the imperative that its interactions with politicians must be carefully calibrated and that it should not be seen as getting too cozy with the politicians. That there is a need for the judiciary to organize its affairs separately from public and of course private interests needs not be overemphasized. This separation of the judiciary creates an autonomous environment that is imbued with strong professional culture and traditions, expressed in professional and ethical standards, a radical departure from the cultural and moral attributes that exist in the political branches. The pragmatic adage that is oft-cited when interacting with politicians should not be forgotten; ‘Politicians are like fire. Remain close enough to them so that you get warm but stay far enough so that they do not scorch your skin.’

The perception of independence is one of the most fundamental institutional dynamics of constitutionalism and as such, the judiciary must be intellectually and situationally alert to its multipronged responsibilities in our democratic framework; the court is an educator, a protector of acquired rights and past interests and the court as an arbitrator. These solemn responsibilities mean that the court must be alive of the importance of cultivating strategic behaviour in protecting the Constitution, since the protection of the Constitution, primarily significant as this obligation bestowed on the judiciary, forms the basis of the court’s institutional power.

Therefore, it behooves the judiciary to ensure that it properly demarcates its lines of interaction with the political branches. The interaction should be restricted to the formal and necessary. The subjective feelings of the public and the consumers of justice must always guide any dealings the judiciary may have with the politicians, remembering always that principle ought to be constant for the judiciary; interest is always constant in the calculations of a politician. Principle predicates long-term thinking. Interests demand instant gratification. In the interests of the Republic in the long term, it is safe to err on the side of principle.

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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