President-William-Ruto

The effect of roadside declarations on institutional integrity and judicial independence in Kenya

The era of “anything goes” is gone forever. Government will no longer be run on the whims of individuals. The era of roadside policy declarations is gone.

 1.0 Introduction

 In the recent past, there have been witnessed incidences of attacks on the judiciary and other independent institutions in Kenya. Vicious attacks on independent institutions especially the judiciary have been perpetrated by the executive arm of government led by the President of the Republic of Kenya, Dr. William Ruto (the President). In moves that threaten the independence and legitimacy of the judiciary, the President has accused the judiciary of among others corruption, threatening to ignore court orders that seek to derail his government’s plans. This has not only been done by the President but also his deputy, Rigathi Gachagua and their allies, moves that threaten to erode public trust in the legal system and trigger constitutional crises. The fight against the judiciary and independent institutions was also the case during the former President Uhuru Kenyatta’s time. This was seen when he refused to swear in judges in 2020 following a recommendation by the Judicial Service Commission (JSC) until he left office.

The judiciary and the JSC have not been the only independent institutions which have been constantly criticised by the President and his allies.

Dr. Margaret Nyakang’o
The Controller of Budget, Dr. Margaret Nyakang’o

The Controller of Budget (COB), Dr. Margaret Nyakang’o (Dr. Nyakang’o) has also faced similar criticisms due to her reports which have often exposed massive pilferage of resources in President Ruto and former President Kenyatta’s regimes. In December 2023, Dr. Nyakang’o was arrested by the Directorate of Criminal Investigations (DCI) officers in Nairobi, where they ferried her for over 440 kilometres to face among others charges of fraud in Mombasa. The legitimacy of the charges has however been questioned, due to the fact that she has been exposing the government for inter alia ‘budgeted corruption,’ which has resulted in massive wastage of public resources.

These continued attacks on independent institutions have threatened their independence and legitimacy. Lack of proper checks and balances and interference with such independent bodies has the potential of driving the country into anarchy, where there is no observance of the rule of law and reveres the law of the jungle.

In this article, I will show how roadside and baseless declarations targeting the judiciary and other independent institutions undermine their legitimacy and independence. In the second section, I will locate these declarations and show how they seek to undermine independent institutions and offices. In the third section, I will focus on the judiciary and demonstrate how such moves, without following due legal procedures for lodging complaints against any individual member of the judiciary are an affront to the rule of law. This section will have a special focus on the judiciary for the sole reason that it is one of the three independent arms of government and that it has over time received constant criticisms from the executive arm of government. Additionally, the focus on the judiciary is due to its peculiar role in a functional democracy, where it has a mandate to test the legitimacy of any action or omission by other arms of government against constitutional dictates. The third section will highlight the JSC and its role in ensuring discipline of judges while making a call for all who have a complaint against judges to ensure that they follow due legal procedures for lodging complaints against them. The fourth section will contain the concluding remarks.

2.0    Roadside declarations and attacks on independent institutions

 The executive arm of the government of Kenya has in the recent past continued its sustained attacks on independent institutions. This ranges from interference with the functions of the judiciary and other independent institutions such as the office of the COB and the JSC. This section looks at these independent institutions, showing how roadside declarations and any other form of interference with their mandate affect their legitimacy as constitutional organs.

2.1    Interference with the COB’s independence

 The COB has been the subject of constant attacks from the executive and even the legislative arm of government. This is following the constant revelation of deeply rooted ‘budgeted corruption’ issues in government agencies. In 2022/2023 for example, it was reported by the COB that her office had been allocated in their budget twice the amount of money that they were meant to receive, in addition to the COB receiving in the budget up to three times the amount she receives in practice. Additionally, the COB’s independence was interfered with when it was under duress in the run-up to the 2022 general elections, whereby the COB was asked to approve the release of funds amounting to up to Ksh. 22 billion without following due procedures of the law. This was followed by direct threats of repercussions in case she failed to do so, which is a direct violation of the COB’s constitutional independence. This has been followed by various pronouncements to the effect that the COB should either resign from the public office or shut up.

This presents a clear picture of interference with the independence of an independent office, with the ulterior motive of illegitimising their constitutional mandates. This is uncalled for in a democracy, where under the Constitution the COB enjoys a

Uhuru Kenyatta
Former President Uhuru Kenyatta

 constitutional guarantee of independence as an independent constitutional office. The Constitution is clear that the COB is only subject to the Constitution and the law and is not subject to control by any person or authority.

 

2.2    Interference with JSC’s independence

 In 2020, the JSC of Kenya, having conducted interviews, recommended up to forty-one (41) judges to be appointed by the President to the Court of Appeal and the High Court. The former President of Kenya Uhuru Kenyatta declined to do so, claiming that there were among others integrity issues with the judges recommended byvthe JSC. In June 2021 however, thirty-four (34) judges out of forty (40) who were to be appointed by the former President as per the recommendations of the JSC took an oath of office as judges of the higher courts having been appointed by him. Six (6) judges were not appointed by the President, raising many unanswered questions on the selective appointment. On Thursday 21st October 2021, in a matter that was filed by Katiba Institute, the High Court gave the President fourteen (14) days to appoint the remaining 6 judges, failure to which his powers would lapse, and the recommended judges would be at liberty to assume office. The appointment was not effected by the former President despite the court order.

It was not until the current President William Ruto appointed the six judges to the Court of Appeal and the Environment and Lands Court almost immediately after his swearing in. The judges were sworn in and subsequently assumed office on 14th September 2022.The move by the former President, who was the head of state and executive arm of government, in refusing to appoint judges as had been recommended by the JSC was and is still a threat not only to judicial independence but also to the independence of independent institutions, in this case the JSC. This is owing to the fact that the President, at the point of appointing judges is only constitutionally obligated to act as per the recommendations of the JSC and not raise any other issue that seems to interfere with the appointment process.

The High Court of Kenya in Adrian Kamotho Njenga expressed itself on this issue, stating that the constitutional provisions are clear and that appointments are to be as recommended by the JSC.

The JSC is an independent organ that enjoys independence when it comes to the recruitment of judges of superior courts. This mandate is protected by the Constitution and the JSC does not have to seek anyone’s permission when discharging this mandate. Its fidelity is only to the Constitution and the law. This is clear from the Constitutional text. The court was of the view, in interpreting the provisions of Article 166 (1) and 172(1) of the Constitution, that the role of the President in the appointment of judges is merely ceremonial. Once JSC makes recommendations, the President has no other option but to formalise the appointments. He cannot change the list, review it or reject some names. He cannot even decide who to appoint and who not to appoint. He must appoint the persons as recommended and forwarded to him by the JSC. The Judicial Service Act is also clear that even the JSC ‘shall not reconsider its nominees after the names are submitted to the President except in the case of death, incapacity, or withdrawal of a nominee.’ This is to the effect that having recommended the enlisted candidates and sent their names to the President, the JSC had become functus officio. Such moves by a head of state are therefore improper in a democratic society, a society which values the independence of every arm of government and independent institutions and offices and shuns any attempt by anyone to interfere with their mandates. As will be discussed later in this article, whenever there is any complaint against any judge, then the same should be channelled to the JSC which is a body responsible for disciplining judges. Anysuch issue or defence should not be used to derail the functions of the JSC.

3.0    Constant attacks on the judiciary and how it affects its legitimacy

 Since the beginning of 2024, the President has been in a row with the judiciary. He has accused the judiciary of derailing his government’s agenda, threatening to ignore court orders which stall government projects. The President has gone ahead to accuse some judges whose names he has not mentioned of corruption and colluding with the opposition to delay key government projects. This was after the judiciary stopped such projects as a result of their violation of the Constitution. The move by the President threatens to take the country back to the dark days of former President Moi, where the President was the only one who could call the shots and he was the judge and the executioner at the same time. The President is also, through his regular statements that undermine the judiciary and independent institutions showing signs of wanting to follow in the footsteps of former President Uhuru Kenyatta.

One of the infamous legacies of former president Uhuru’s regime is the constant blatant disregard of court orders. This was and is improper for the executive under the Constitution, a document that through separation of powers doctrine has attempted to balance the power that had been skewed in favour of the President and the executive in the pre-2010 dispensation. Such a move threatens to take back the country to such a dispensation which was characterised by ‘imperial presidency,’ where the executive arm was too powerful and was the only centre of command. This saw the courts being unable to perform its midwifing role which would have seen it protect, promote and uphold the rule of law and enforce human rights against the despotic executive.

As an independent institution, attacks on the judiciary especially by key government officials are an affront to the rule of law and affect the judiciary’s legitimacy and confidence in the eyes of the public.

Interference by other arms of government and its members in a way that falls outside the rubric of checks and balances taints the independence of the judiciary, the independence which is a prerequisite enabling courts to exercise their authority

with predictability, equity, and justice. In the case of the judiciary, the perception of the public on its independence and impartiality goes a long way in cementing the public’s confidence in the judiciary’s ability to effectively dispense justice. As a principle which has stood for almost a century,

justice must not only be done but it must be seen to be done. Without impartiality

and independence, there is no guarantee that courts will uphold the rule of law and push forward the democratisation agenda. Walter Khobe rightly notes that judicial independence and impartiality are the central elements of any conception of the rule of law. This is while referring to the ‘Venice Commission’ of the European

Council which states that the Judiciary must be:

Free from external pressure, and is not controlled by the other branches of government, especially the executive

branch. This requirement is an external part of the fundamental democratic principle of the separation of powers.

Courts should not be subject to political influence or manipulation. ‘Impartial’ means that the Judiciary is not-even in appearance-prejudiced as to the outcome of the case.

Any attack against the judiciary as an institution or a judge therefore has a huge bearing on the individual officer’s ability to independently perform their functions, and in effect taints the image of the judiciary as an institution before the eyes of the public and erodes the confidence of litigants before the individual judge. This in effect has a negative impact on judicial outcomes. Should they go unchecked, then such attacks will render illusory the judiciary’s authority and the Constitution a chimera, subordinating judges to the executive and undermining the Constitution. Any attack or clear show of biasness and mistrust on any individual judge, whether legal or extra-legal by heads of other arms of government corrupts the public mood and has a likelihood of swaying court rulings. It is therefore high time that every individual, whether the President, his deputy or their allies refrain from constant public attacks and criticism of the judiciary and judges and follow the due processes of law to lodge their complaints.

The modern conception of judicial independence goes beyond the personal independence of an individual judge and includes the independence of the judiciary as an institution. The Kenyan Constitution, like many other constitutions in advanced democracies, has thus guaranteed the judiciary independence as an institution, beyond the independence of individual judges. The Constitution has also created mechanisms through which judges and judicial officers can be held to account whenever they abuse judicial power by an independent body outside the judiciary. This is the JSC in the Kenyan case, whose broad mandates will be discussed in the next section of this article. It therefore behoves every individual, whether in their official capacity or as an institution to recognise that everyone needs to bring any allegation they have against any individual member of the judiciary before the relevant body, in this sense being the JSC for that individual to be dealt with according to the law.

Over time, the Constitution and the law have evolved to a standard whereby the judiciary and judges are absolved from the direct influence of the executive, legislature and its members. This is clear from the provisions of Article 160 of the Constitution, which clearly states that in the exercise of judicial authority, the judiciary is only subject to the Constitution and the law and not under the control of any person or authority. The courts have pronounced themselves on this issue, holding the view that the protection offered to judicial officers under this Article is inherent in the judicial independence as a state organ, within the spirit of separation of powers. To guarantee this, the Constitution has granted the judiciary financial independence, where the remuneration and benefits of judges are made from the Consolidated Fund. Additionally, the Constitution has created an independent organ, the JSC, which is outside and is not under the influence of the three arms of government, which is responsible for interviewing, appointing judges and disciplining.

3.1    The Judicial Service Commission and its role in the discipline of judges

Judicial independence has been in contention and has evolved, given the key role of the judiciary in upholding the rule of law. Strong institutions that enjoy public confidence are essential for the success of any democracy. It is important to have a watertight way of appointing and removing judges from office, and should be anchored on independence, integrity and impartiality. It is against this backdrop that the international laws, standards and Constitutions have enshrined the doctrine of judicial independence.

The Commonwealth Principles on Promoting Good Governance and Combating Corruption (The Commonwealth Principles) emphasises that an independent and competent judiciary which is impartial, efficient and reliable is quite important to any democratic state. This is through mechanisms such as impartial selection of judges and their removal from office, adequate remuneration, security of tenure, and independence from the legislature and executive arms of government. The Commonwealth Principles however emphasise that judicial independence does not imply a lack of accountability and that there ought to be procedures to hold them accountable in case they fail to deliver upon their mandates. Importantly, the Commonwealth Principles require that these processes must be transparent and administered by independent and impartial institutions. In addition to the Commonwealth Principles, the Commonwealth (Latimer House) Principles on the three branches of government (Latimer House Principles) delineates a relationship between the three arms of government, emphasising the separation of powers principle as a necessary element in a properly functioning democracy. The Latimer House Principles are clear that an independent, impartial, honest and competent judiciary is fundamental in entrenching public confidence and dispensing justice.

In a bid to integrate the Commonwealth Principles and the Latimer House Principles, Kenya has established the JSC under Article 171 of the Constitution, whose main mandate is to promote and facilitate the judicial independence and accountability and ensure efficient, effective and transparent administration of justice. In that sense, the JSC is the body responsible for appointing, receiving complaints against, investigating and removing from office or otherwise disciplining registrars, magistrates, other judicial officers and other staff. As an independent commission, the JSC is only subject to the Constitution and the law, and not subject to direction or control by any person or authority. Any complaint against any judge should therefore be channelled to the JSC, who will look into and try the matter before making a recommendation to the President. Any matter brought before the JSC should however be meritorious, and not a mere allegation against a judge. To this end, the Supreme Court of Kenya has held the view that the JSC is not just a conduit pipe by which complaints are channelled to the President. It has to be convinced that the complaint discloses prima facie evidence against the judge and that the complaint is serious enough to warrant a representation to the President.

4.0 Conclusion

 Sweeping statements and declarations are not just mere declarations and statements on the face of it, but they have an adverse effect on the independence, integrity, legitimacy and the ideal functionalityof independent institutions. This is especially the case when an onslaught against members of such institutions or the institutions themselves are led by key figures of different arms or independent institutions. There is a thin line between checks and balances whereby one institution can legally hold other institutions to account and encroaching on the powers and functional independence of those institutions.

The same principle applies to independent commissions and offices, which enjoy the constitutional legitimacy under the Constitution. These commissions and offices derive their powers, functions and legitimacies from the Constitution and the law, and are not donated to them by any person or government authority. The independent commissions and offices, including the JSC and the COB are subject only to the Constitution and the law, and are not subject to direction or control by any person or authority. Any interference with these commissions and offices in ways that undermine their functional independence goes to the heart of justice and fairness in a democracy, which such bodies must not only have but must also be seen to exercise. Political interference or any other intrusion to their operations therefore threaten social justice among other values that govern them.

From the foregoing, it has been established that the independence of the judiciary and independent institutions and offices is fundamental for a functional democracy. It is effectively shaped by the relationship between different arms and organs of government and goes into the heart of administration of justice.

immigration-impact-union-independence

There is imminent danger of abuse of power whenever any person or body of law tends to exercise powers not vested in them. This will take away the powers of the people vested in the other organs of government and other institutions, leading to a state of anarchy. Respect of the actions of another arm and institutions by others foster good governance and ensures that the people can enjoy the services of the people and institutions upon whom they have vested their sovereign power. In a democratic society, it is acceptable for the executive and legislative arm members to comment on specific cases. What is not allowed is anything that either expressly or impliedly says that there is something wrong with the judges for reaching a certain conclusion.

The political, legal elites and the members of the society must therefore work harmoniously to develop a culture of independence of the judiciary and other independent institutions in a gradual process. This mission can only be possible whenever any issue against any member of an independent institution is processed through and handled within the bounds of the Constitution and the law.