Why Judicial Independence in Kenya Is Not Subject To Negotiation.

By George Ogubi

In Kenya, like in every democratic society, judicial independence is critical to the smooth operation of the legal system and the safeguarding of individual rights and liberties. Any compromise on judicial independence might have serious consequences for the rule of law and the democratic ideals established in Kenya’s Constitution.

Article 160 establishes the Judiciary as an independent arm of government that is not controlled or directed by any person or authority other than the Constitution and the law. The Judicial Service Commission under Article 171 is an important institution in ensuring judicial independence. Its responsibilities include selecting judges, supervising judicial officer discipline, and making recommendations on judges working conditions.

The nomination and subsequent appointment of judges is an essential component of judicial independence. The JSC participates in the selection and nomination of judges, and the President appoints them. This approach is intended to protect judges against improper influence. Kenyan judges enjoy security of tenure. Once appointed, they cannot be removed or suspended at will. Removal procedures are severe and usually need the establishment of a misconduct or gross violation of the constitution before a tribunal.

Adequate financing for the court is critical to its independence. To minimize financial involvement, the judiciary’s budget is allocated independently from that of the executive and legislative branches. The Chief Justice, as the head of the judiciary, has a crucial responsibility in maintaining judicial independence. The Chief Justice represents the judiciary and serves as a spokesperson on judicial issues.

Despite constitutional guarantees, there have been worries about potential political meddling and outside pressure on the court. These obstacles may impede the actual implementation of total judicial independence. Kenya’s court has issued many historic rulings that reflect its commitment to maintaining the rule of law and constitutional values. These cases frequently address issues of public interest and constitutional interpretation.

Judicial independence is an essential part of Kenya’s constitutional system. The country has built structures and systems to ensure the independence of the judiciary. However, continued efforts are necessary to overcome difficulties and ensure the constitutional provisions are effectively implemented and not compromised even as there are calls for dialogue between the arms of government.

George Ogubi is an Advocate of the High Court of Kenya and Managing Partner, ON Advocates