The 2010 Constitution sought to re-imagine our judicial system by establishing specialized courts with the same status as the High Court. Kenyans felt that the areas of employment and labour relations, and the environment and land disputes deserve special and focused attention, beyond the general approach to all other disputes. Given the centrality of these concerns to the socio-economic transformation agenda envisaged in the Constitution, Kenyans through Article 162 of the Constitution decreed that disputes relating to these themes should be resolved expeditiously and by persons who have specialized knowledge in these areas of the law.
It is important to point out that Article 162(2) creates the concept of “same status”, to denote that the Environment and Land Court, and the Employment and Labour Relations would be of the same rank and prestige as the High Court. This means that Judges employment to these courts would also enjoy the same rank and prestige as Judges of the High Court. However, contrary to this constitutional expectation, the constitutional decree of ‘same status’ has not been seen in the workings of the Judiciary as the Judges of these same status courts seem to be treated as second class Judges who are not at par in rank and prestige with the Judges of the High Court. This has caused a lot of disquiet in the legal profession, with many Advocates coming out on social media to decry and denounce this unconstitutional discrimination of the Judges of the Specialised Court. Indeed, some Advocates have pointed out that this dissuades them from applying for the position of Judge of the Specialised Courts as the positions are deemed to be less prestigious compared to Judgeship in the other superior courts.
One area of manifestation of this problem has been in the appointment of Court of Appeal Judges. In the last two rounds of appointment of Court of Appeal Judges, the Judicial Service Commission nominated 18 nominees out of which 16 were Judges of the High Court whilst 2 were private legal practitioners. None of the Judges of the Specialised courts were nominated to serve on the Court of Appeal. There is no justification for this disparity of treatment. It ought to be appreciated that Judges of the High Court who are nominated to the Court will hear and determine appeals relating to matters involving land, environment, employment and labour relations. These Judges of the High Court lack in- depth experience in such matters. Similarly, some of the private legal practitioners nominated to the Court of Appeal had specialized practices focusing on commercial law matters yet they will determine appeals in criminal law matters, amongst other areas where they don’t have in depth experience. Hence, the position of constitutional principle being urged by the Platform Magazine is that the nominees from other areas of law have no advantages in terms of experience and knowledge that they bring to the table that is not possessed by the Judges of the specialized courts.
The second area of departure from constitutional principle is with regards to the appointment of Resident Judges in the various courts across the country. It is noteworthy
that currently, most Resident Judges are appointed from the rank of High Court Judges. Whilst this position was tenable in the past because most High Court Judges were the senior Judges in their court stations, this has changed with the elevation of those senior judges to the Court of Appeal and the retirement of others. It is therefore an appropriate moment for the Judiciary leadership to uphold constitutional principle and appoint senior Judges of the Specialised courts as Resident Judges in the various court stations where they are senior in rank and more so where such judges have exhibited leadership qualities and potential.
It is therefore the Platform Magazine’s editorial position that the Judiciary and the Judicial Service Commission should affirm and live up to the constitutional dictate of ‘same status’ of the Specialised courts and the High Court by treating the Judges of those courts as enjoying the rank, prestige and benefits equivalent to that enjoyed by the Judges of the High Court.
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.