End the war between courts and Executive
The independence of the Judiciary has been the subject of public debate following the turbulent events in recent weeks. The arrest and subsequent arraignment in court of Deputy Chief Justice Philomena Mwilu marked the lowest point for the Judiciary, striking at the core of its leadership and throwing out the veil of mystique and respectability that surround the institution.
Since, this has renewed debate on the relationship between the Judiciary and the Executive and as well as Legislature, with the accent being there is something ominous in the air. At the heart of the conversation is the infamous statement by President Uhuru Kenyatta last year, where he threatened to revisit the Supreme Court nullification of his election. Such were those regrettable statements that come to haunt an individual for years.
Currently, the issues in contention are as follows. First, Parliament drastically cut the budget for the Judiciary, rendering the institution incapable of conducting its affairs. As currently constituted, the Judiciary is understaffed, poorly resourced and technologically-challenged to deliver justice. It requires funding to expand and equip the courts with modern facilities, as well as recruit more judicial officers. Importantly, it needs to digitise its records and automate its operations to expedite administration of justice. These inadequacies, combined with corruption, have contributed largely to the huge backlog of cases.
Second, there is a contest over the composition of the Judicial Service Commission, which is the constitutional body charged with the responsibility of managing the Judiciary. To date, it is not fully constituted. Five of its commissioners have not been sworn in due to the pull and push between the Executive and the Judiciary and there is no indication this will end soon. Since, fears have been expressed that should Justice Mwilu be put on trial and lose her position, JSC will not have quorum.
Independence of the Judiciary is core to the administration of justice, enforcement of liberties and promotion of good governance.
Taken together, these have a bearing on the independence and performance of the Judiciary. Yet, the current Constitution has fortified the institution. It is because of this independence that the Supreme Court could nullify presidential election results, a feat never heard of, or anticipated before. In recent years, the Judiciary has overturned laws enacted by Parliament that it deemed unconstitutional. This created bad blood between it and the Legislature.
The point we are making is that we need to end the silent war between the Judiciary and the other two arms of government — Executive and Legislature — because it is slowly derailing judicial processes and portends ill for the administration of justice. We call for resolution of the stalemate over the swearing in of the JSC commissioners and a review the budgetary allocation to the Judiciary.