JUDICIARY INDEPENDENCE

Maraga, Uhuru is also Head of State

Judicial independence cannot be synonymous with immunity and impunity.

In Summary

• Being independent in a democratic state does not mean you are given a blank cheque to do whatever you want.

• As per the Constitution, the people exercise sovereign power directly or through Parliament, the Executive, and the Judiciary.

A dog used to run up quietly to the heels of everyone he met and bite them without notice and so the owner put a bell on its neck. Thinking it a mark of distinction, the dog grew proud of his bell and went tinkling it all over the marketplace.

One day, an old hound said to him, "Why do you make such an exhibition of yourself? That bell that you carry is not any order of merit but a mark of disgrace, a public notice to all men to avoid you as an ill mannered dog.”

Sometime in March last year, I argued on this column that we must cleanup the Judiciary once and for all. In September, I wrote again following the public conduct of Chief Justice David Maraga and reminded him that he was not an equal to the President.

It is unfortunate that yet again, I am here reminding the Judiciary a few things about our Constitution and the institution of the Office of the President. For an institution that is supposed to be the epitome of integrity and the rule of law, the Judiciary has over the years become an unfortunate story in the mind of Kenyans.

And to make matters worse, we are seeing the Judiciary public spectacle play from the very top – the Office of the Chief Justice. In a single week, the Chief Justice came out to attack the President in public in a manner similar to a drowning man clutching on straws.

The first instance was even laughable. The Chief Justice contested a new Executive Order saying that the President should not list the Judiciary in it. The reason why many Kenyans did not take him seriously is that the Judiciary has been on all the previous executive orders.

One would then wonder how the head of the Judiciary failed to notice the same thing over the years. Can a head of such an important institution be seen to be so aloof?

The second instance was also as comical, with the Chief Justice begging and at the same time lashing out at the President. He was focused on reminding Kenyans that the Judiciary is an independent institution.

What he forgot is that being independent in a democratic state does not mean you are given a blank cheque to do whatever you want. As per the Constitution, the people exercise sovereign power directly or through Parliament, the Executive, and the Judiciary.

The three arms of government work independently but are interdependent to serve Kenyans. In addition, the Constitution promotes the independence of the arms of the government by clearly outlining the functions of each, and clearly showing the separation of powers.

In addition, the President is not only the head of the Executive but also the Head of State and has roles beyond the Executive. He has to exercise his mandate as Head of State by ensuring all institutions in the country follow the Constitution.

The reason why the President refused to approve the judges vetted by the Judicial Service Commission is because there are integrity issues facing some of them. The President would, therefore, be abdicating this duty if he allowed these judges to take office.

As the Head of State, the President has a huge role, even in Parliament, and this is why he can refuse to assent to Bills passed by MPs, if they do not meet the threshold. It is not by choice that the President has the last say on the appointment of judges otherwise the Constitution would not give him a role.

A transparent, reliable and accountable Judiciary is vital in ensuring the rule of law, which is fundamental to constitutionalism and democracy. However, judicial independence cannot be synonymous with immunity and impunity.

The Judiciary should, therefore, not feel that it is not part of the system that governs Kenya. It is part of the wheel and must do its part to ensure Kenyans benefit from justice and the Constitution is upheld.

The writer is a political and communications consultant @MachelWaikenda