Introduction
Failed attempts to reform judiciary
Constitutional reform
False start in implementation
Public, competitive and transparent process adopted
Comment
Introduction
Kenya has been a republic since December 1964. However, until very recently many people felt that the Kenyan government had been failing its people. The executive arm of the government was perceived to be dictatorial and insensitive to the plight of Kenyans, especially the poor. It was also felt that in achieving its dictatorial objectives, the executive was aided by the judiciary, which was perceived to be slow, partisan, corrupt, insensitive, incompetent and overly eager to yield to the will of the executive. In the 1980s and 1990s the judiciary was at its least effectual in ensuring justice. During that period, the executive frequently detained its critics either without trial or following a stage-managed trial. Such trials were conducted outside normal court hours and almost always resulted in the conviction and detention of the accused.
Failed attempts to reform judiciary
By 2003 public confidence in the judiciary was at an all-time low. In a bid to redeem its image, the then chief justice appointed a commission to investigate corruption in the judiciary. On the recommendations of the commission, about half of the members of the High Court and the Court of Appeal were suspended, in what came to be known as the 'radical surgery' of the judiciary. However, most of those suspended successfully challenged the suspensions in the High Court and in tribunals specifically constituted for that purpose. Consequently, the much-touted and popular surgery failed to reform the judiciary and public confidence in the institution remained low.
The lack of confidence in the judiciary and the attendant disastrous consequences were manifested in January 2008 when, after a closely fought presidential election, the then incumbent president was declared the winner. His main challenger in the election (who is now prime minister) refused to concede defeat, arguing that the election had been rigged in favour of the incumbent. However, instead of resorting to the courts for determination of the dispute, the challenger called upon his supporters to carry out mass street demonstrations aimed at forcing the declared winner to leave office. In so doing, he stated that he had no confidence in the judiciary and that resorting to the courts would merely give them the chance to legitimise the election results, irrespective of the facts. He claimed that the judiciary was not independent of the executive and would in all likelihood favour an incumbent president in such proceedings. This move prompted a wave of violence which lasted for two months, during which at least 1,033 people were killed and tens of thousands displaced from their homes. To date, three years after their displacement, some still live in squalid conditions in camps for displaced persons.
Constitutional reform
On August 27 2010 Kenya ushered in a new Constitution aimed at remedying the situation. One of the key pillars of the new Constitution was a reformed, independent and effective judiciary and adherence to the rule of law. With regard to reforming the judiciary, the Constitution prescribed a number of measures, including the replacement of the then chief justice. Further, the Constitution limited the president's role in the appointment of the chief justice and deputy chief justice by requiring that such appointments be carried out on the recommendation of the Judicial Service Commission and subject to approval by the National Assembly.
False start in implementation
On January 28 2011 the president unilaterally nominated a chief justice, as was the norm before the enactment of the new Constitution. The public outrage that followed the nomination forced the president to rescind his nomination and to refer the issue to the commission as required under the Constitution.
Public, competitive and transparent process adopted
The commission immediately advertised the positions of the chief justice and deputy chief justice (a new position created by the new Constitution) in local newspapers and on the judiciary's official website.(1) It received many applications from Kenyan lawyers (including several sitting judges) and lawyers from other commonwealth countries. After shortlisting suitable candidates, the commission conducted public interviews in which candidates were questioned on their integrity, character, judicial philosophy and past conduct, among other things. The interviews were aired live on television and the interviews were afforded headline status in newspapers, thereby triggering a vigorous public debate on the competence and suitability of the respective candidates.
After the interviews, the commission recommended Dr Willy Mutunga and Ms Nancy Barasa for the roles of chief justice and deputy chief justice, respectively. Their names were put forward to the National Assembly, which established a committee to vet the nominees and to present a report to the National Assembly for debate. Again, the vetting of the candidates was carried out publicly and Kenyans of all backgrounds were invited to give their views on the suitability of the nominees. Many Kenyans, including individuals and organised groups, appeared before the committee and aired their views. The nominees were then given a chance to respond to any allegations made against them. Upon due consideration, the Committee recommended to the National Assembly that the nominations be approved. Consequently, on June 15 2011, after an intense debate that ran late into the night and was broadcast live on television, the National Assembly approved the nominees.
On June 17 2011 the president appointed Mutunga and Barasa to the positions of chief justice and deputy chief justice, respectively.
The process adopted by Kenya in appointing its top judicial officers is widely regarded as having been transparent and accountable. It is hoped that these developments will go a long way towards ridding the judiciary of its dependence on the executive arm, thereby inspiring public confidence in the system and encouraging parties to settle their disputes in the courts, rather than on the streets. It is hoped that eventually, Kenya will enshrine a culture of due process, accountability, transparency and adherence to the rule of law in the determination of disputes.
For further information on this topic please contact Grishon Ng'ang'a Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).
Endnotes
(1) The website can be accessed at www.judiciary.go.ke.