NAKHURENYA: Executive shouldn't 'breastfeed' courts as it has done with MPs

In a constitutional democracy like ours, constitutional power should be exercised in a manner that fuels transparency and accountability.

It appears that the debate around appointing some judges and leaving out others will not fizzle out from public discourse soon.

Every arm of government is a creation of the constitution and state officers should not be allowed to travel outside legal bounds.

With more voices calling upon the President to appoint the remaining judges, I join many more Kenyans to call upon the President to duly appoint the judges, especially in the absence of efforts to duly disclose to the public grounds for his refusal to appoint all persons recommended for appointment by the judicial service commission.

Constitutional power must be exercised as a public trust and public trust can only be exercised in a manner that demonstrates respect for the people.

The Executive cannot and should not be allowed to put the Judiciary on a breastfeeding programme where it will direct the workings of the bench.

I am sure Chief Justice Martha Koome did issue a strong-worded statement against sustained efforts to capture the Judiciary during the swearing-in of Justice Musinga as the president of the court of appeal.

The assertion that the Judiciary is facing possible capture should be a worrying trend in a constitutional democracy like ours.

The Chief justice and the entire bench are duty-bound to remain firm in ensuring the independence of the Judiciary is well-guarded and especially the independence of judicial decisions where cases should be decided without fear or favour.

Undoubtedly, Parliament lost its independence a long time and there are slim chances that the legislative arm of government will regain public confidence in less than a year to the next general election.

For the longest time now Parliament has consistently conducted its affairs as an extension of the Executive with minimal clout to question the excesses of the Executive.

With Parliament and Executive working as a pair Kenyans are left with the Judiciary as the only standing institution that can be relied upon to perform its constitutional duty of checks and balances in a manner that advances the rule of law and democracy.

Interestingly, the next 100 days are important to set the tone and draw a clear roadmap on what we expect to get from the new head of the judicial arm.

One of the assignments for new officeholders’ world-over is on how to manage change and mainstream transformative agenda.

This duty is even higher within the Judiciary at a time when it is facing relentless attacks from other arms of government witnessed by a quiet opposition.

This is one major assignment that the new Chief Justice must keep an eye on.

The right signals from her office will breathe confidence among her peers and juniors and fuel fidelity to the rule of law.

Any faltering would signal further weakening and erode judicial independence.

The worst thing that can happen to any serving Chief justice is to lose the support and confidence of other judges and judicial officers.

As president of the Supreme Court and head of the Judiciary, the Chief justice plays a pivotal role in maintaining judicial independence, fidelity to the constitution and relationship with other arms of governments.

I would wish to point out that Chief Justice Martha Koome is assured of good Company within and outside the Judiciary.

Nobody can run away from their past and if this is true then the new Chief justice has good networks from the bench and within FIDA network that boast of having given Kenya her first Deputy Chief Justice Nancy Baraza and many other reliable legal minds.

This is not to suggest that the Chief justice will rely on outsiders to make decisions but it will be proper to note that judges like other state officers stay in Kenya and their decisions will always mirror social realities and the need to advance the development of democracy and rule of law.

The 100 days change management mantra undoubtedly puts the judicial arm now under the new head under a spotlight.

It is incumbent upon the new officeholder to chart a clear path and send the right signals to the entire bench, other arms of government and the general public.

I would say without a doubt that the Chief Justice sounded in charge amidst applause from the audience majority of who are serving judges, magistrates and other judicial officers.

Let me point out from the outset that Judges with questionable characters and integrity should not continue to sit on the bench at all.

However, the absence of public disclosure as to why some judges cannot be sworn in despite some being serving judges affords Kenyans the opportunity to firmly and rightfully hold that the Executive has continued to arm-twist the Judiciary offended express provisions of the constitution.

Even those who seem to support the offensive conduct of the Executive should know that it is unfair to subject any person to public lynching without being allowed to know the reasons for being punished.

It is suspect for the Executive to take part in the JSC interviews where the Attorney General sits as a representative of the Executive who elects to remain quiet throughout the interviews only to turn around and raise an objection to the final merit list.

One cannot be condemned unheard? The constitution elevates the right to a fair trial to a non-derogable right that cannot be limited or taken away by anybody.

There are clear avenues under the constitution that provides for the removal of a judge and other judicial officers if there is compelling evidence to warrant the removal of judicial officers.

In such circumstances, the judicial service commission has the mandate to conduct investigations and if satisfied by the evidence against any judicial officer, recommend for his/her removal from service.

The writer is a public policy and legal analyst

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