Institutional Design and Inter-Branch Relationship
It is the role of the judiciary to act as a guardian of the Constitution, to uphold the rule of law and to exercise checks and balances over the other branches of within the scheme of the separation of powers. To uphold the rule of law the judiciary must be seen to be independent in order to ensure public confidence.
Before 2010, courts were highly deferential to the executive and legislature, and rarely curbed the efforts of either branch to pursue their authoritarian ends.
Article 160(1) provides that the judiciary is ‘subject only to this Constitution and the law, and … not subject to control by any person or authority’. Other provisions to protect its independence include Article 160(4), providing that the remuneration of judges may not be reduced, while Article 168 ensures that judges are not removed on whimsical grounds.
Before 2010, the judicial appointment process was not transparent and no public input was canvassed. Appointment was undoubtedly influenced by political factors. Now the process starts with the Judicial Service Commission, (an independent body made up of representatives of judges, magistrates, and the Law Society of Kenya, plus two members of the public nominated by the President and appointed with the approval of the National Assembly), advertising vacancies in the judiciary in various media. The short-list is publicly announced for comment, after which public interviews are held. In this way, the constitution has helped to build public confidence in the independence of the judiciary.
However, while early drafts of the constitution included a provision that there must be adequate resources for the judiciary, this was removed before the constitution was passed. Article 173 of the Constitution provides that the Chief Registrar of the Judiciary prepares annual estimates of expenditures of the Judiciary; these must be approved by the National Assembly. After that, the money is paid to a Judiciary Fund administered by the Chief Registrar.
Sometimes the executive, or National Assembly, has slashed the budgetary allocation for the judiciary – first in 2015 apparently as a punishment for the Supreme Court’s Advisory Opinion to the effect that the Senate had to be involved in the approval of the Division of Revenue Bill that fixes the allocation of funds between the National and County governments. Following the annulment of the August 8th 2017 presidential election, the executive decided to slash the budget of a number of independent constitutional offices. In the 2018-19 Budget, the Judiciary’s own estimate of its needs were reduced by the Treasury, because of the need to economise, then further reduced by Parliament, leaving the judiciary with only KShs50 million for development.
This means that the process of budgetary allocation remains a political process. Turning the leadership of the Judiciary into supplicants to politicians carries with it an obvious risk to judicial independence.
While the judiciary has played its role within the separation of powers, it has been met with attacks from the executive, and, most alarmingly, non-compliance with court orders on the part of the state, particularly orders to pay compensation. One blatant example involved orders for the release of the detained, then deported, opposition politician Miguna Miguna. In another, the authorities ignored court orders to switch on spectrum for several television stations switched off by the Communication Authority of Kenya, because they had aired the mock swearing-in of opposition leader Raila Odinga as the ‘people’s president’ on 30 January 2018.
For a democratic system to function effectively, it is essential that the different branches of government adhere to the rule of law and submit to the constitutional checks and balances. Rule of law means both citizens and politicians respect the law and its institutions. Furthermore, judicial independence cannot be secured if judgments are only adhered to when politically expedient. If the court decisions are not obeyed, the ‘bite’ of the constitution will disappear and it will become a statement of largely meaningless words.
This lack of willingness to achieve the goals of the constitution cannot be remedied by constitutional design changes alone. It is clear that without wise political leadership, the Kenyan transition to a new democratic and accountable order might not succeed. It is perhaps time to call for a national recommitment to the vision of the 2010 constitution and its goals.
The most important new judicial institution is the Supreme Court, which is expected to serve as the ultimate guardian of the constitution. This new apex court was thought essential as allegiance of the then existing judges to the new constitutional order could not be guaranteed. The Constitution also created the Environment and Land Court, and the Employment and Labour Relations Court. The objectives were improved access to justice, development of judicial expertise, development of clear and effective jurisprudence, and more efficient disposal of cases.
All presidential election cases must be heard by the Supreme Court (Article 163). This is supposed to ensure that this divisive issue receives high level and prompt resolution in the court, and to discourage violence. There has been no repeat of the 2007-2008 post-election violence, as the Supreme Court has handled three presidential election petitions following the 2013 and 2017 elections. Generally, the political class and the general populace have accepted and abided by these court decisions even where they disagree with them. Thus, the Supreme Court as an innovation of the 2010 Constitution has played an important role in resolving political conflicts.
The Court also hears appeals from the Court of Appeal, and if the case involves the Constitution the right to appeal is automatic. The Supreme Court also has the power, enjoyed by no other court, to give an ‘advisory opinion’, which means even if there is no active dispute. This applies only if the issue concerns county governments, and if a state body brings the case.
Another question about jurisdiction concerns the fact that any higher court (not magistrates) can declare a law unconstitutional. The Working Group on Socio-Economic Audit of the Constitution recommended that the Constitution be amended to provide that any declaration of unconstitutionality by the High Court and the Court of Appeal could take effect until confirmed by the Supreme Court. This draws from the South African Constitution. However, there is every risk that this procedure would increase the perennial problem of backlogs in the Kenyan judicial system by creating an avalanche of suits to the Supreme Court, as well as increasing the cost of access to justice.
In its role of ensuring that the constitution is respected, the courts have made many notable contributions. Apart from the case insisting (rightly in the author’s opinion) that the Senate must be involved in passing the Act allocating money between national and country governments, courts have made important contributions to respect of the ‘two-thirds gender rule’, to protecting the independence of the judiciary, and to ensuring that the public can participate in important decisions such as law making.
Human rights recognised in Chapter Four have been the basis for many important decisions, including protecting freedom of expression; rights to fair administrative justice; to access to government information (vital for accountability); to protection from eviction and rights to be protected from violence.
Conclusion and Recommendations
The judiciary has much improved in efficiency, approachability and availability. Some problems do remain. Delays in some courts or some types of cases remain unacceptable. Not all judges have fully accepted the implications of the new Constitution. Rumours of bribery cannot be dismissed entirely.
And tensions between other branches of the government and the judiciary are getting if anything worse. The anti-corruption campaign of the President and Director of Prosecutions has given rise to tit-for-tat allegations between them and the judiciary. Even the President has used inexcusable language in criticising the judiciary.
However, even after our discussion of the constitutional architecture and design with respect to the Judiciary, we are making only a few recommendations. This suggests that the Constitution has, for the most part, been fit for the purposes it was meant to achieve.
Those recommendations for amendment are:
- to have a fixed minimum percentage of the national budget reserved for the judiciary, to minimise the need for negotiation between the judicial and political branches of government.
- to adopt the approach of the Constitution of Ghana (Article 2). This makes failure to comply with Supreme Court orders on the unconstitutionality of law or conduct a ground for removal of the President. It is a crime and conviction results in loss of eligibility for election or appointment to any public office.