Upholding Judicial Independence in Kenya: Challenges, Context and Solutions
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Date
2024-09
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Friedrich Naumann Foundation for Freedom
Abstract
The Kenyan Judiciary is grappling with a renewed onslaught on all the pillars of its independence. The unprecedented gun attack on a magistrate within a courtroom, the barrage of public attacks from the Executive and the Legislature, widespread perceptions of systemic corruption within the corridors of justice, crippling budget cuts, and unexplainedninternal redeployment of judges are some of the violations of the constitutional protections of judicial independence.
On the one hand, the judges in Kenya have made bold decisions and declarations to promote prudent public policy, protect socio-economic well-being, and curtail the avarice of the people in power. Nearly all judicial decisions that those in power interpret as detrimental to their interests are met with threats of budget cuts and reminders to judges about the social contract that elected representatives have with the people. Members of the Executive, including the President and his deputy, and the Members of Parliament, often publicly issue threats against individual judges and the Judiciary, reminding the judicial officers about the power of the purse and the powerful tools of the State at their disposal. So far in 2024, the Judiciary has been attacked for declaring the discriminatory housing levy unconstitutional, voiding the government’s health insurance plans on similar grounds, deeming as illegal the rushed deployment of the Kenyan military to the streets to quell widespread youth protests, and nullifying the tax laws for violating the constitution. On the other hand, the Judiciary has had to contend with a pervasive perception that the powerful pay judicial officers to avoid being brought to book, or that the Judiciary is politically manipulated for favourable verdicts. The perception arose after key players within the criminal justice system – the police, the Director of Public Prosecutions, the Director of Criminal Investigations, and even government agencies— dropped cases against the Deputy President, some Cabinet ministers, and some public officers. The Kenyan Supreme Court banned a senior counsel for publicly “scandalizing, ridiculing and outrightly denigrating” the court, and for accusing the judges and the court of “acts of corruption, incompetence and outright bribery”. These controversies have created a perception that perhaps the Judiciary is not independent and is susceptible to political manipulation and judicial collusion for self-preservation. In liberal democracies such as Kenya, the Judiciary is the bastion of justice. Its decisions preserve order, deliver justice, hold the powerful to account, deal with impunity, and grease the wheels of democracy by promoting social, political, and economic well-being in a country. Therefore, this policy paper addresses concerns about judicial independence, interrogating the pervasive corruption and lack of
transparency within the Kenyan judiciary and their significant impacts on judicial independence. It takes a closer look at the systemic corruption and perception of corruption that undermines the rule of law, examining how political interference and bribery erode public trust in judicial institutions. It illustrates how corruption, political interference, threats of budget cuts (and actual cuts), and blocked appointments compromise the impartiality and integrity of judicial proceedings, judicial officers, and the Judiciary. The paper highlights how political pressures can undermine judicial independence while also recognising the efforts of
honest judges striving to maintain their autonomy in such a challenging environment. The paper concludes with recommendations for enhancing judicial transparency and combating corruption, political meddling, and financial threats, to restore faith in Kenya‘s legal system and uphold the principles of justice and fairness
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Citation
Milej, T., & Ogada, E. (2024). Upholding Judicial Independence in Kenya. Friedrich Naumann Foundation for Freedom.