Revisiting the Judiciary will backfire, return us to the 'dark days' and hurt the economy

President appears not to grasp separation of powers; CJ is fully his equal

In Summary

• After the Supreme Court nullified the presidential reslts in 2017, an enraged President Kenyatta said something wrong, the system must be fixed and he would 'revisit' the issue.

• CJ Maraga's broadside on Monday indicates that the President has done just that  punished the judiciary, not grasping that the CJ is not his subordinate.

The Judiciary
AUSTERITY: The Judiciary
Image: FILE

On Monday, Chief Justice David Maraga issued a bare-knuckle statement on the frustrations that the Judiciary is currently undergoing due to theExecutive.

I took a hiatus and started reminiscing about the Judicial subservience in the post-independence era in Kenya. The Judiciary in that era, and especially during the Kanu regime, was riddled with incompetence, nepotism, subservience to the Executive and corruption.

The Judiciary showed no ability to uphold the rule of law against the express or perceived whims and interests of the Executive and senior government officials. Judges would be unlawfully removed from office for failing to carry out the wishes of the Executive. It was so powerful that judges were afraid of issuing orders against the state as this would provoke it to 'flex its muscles'.


One of the allegations then was that President Daniel Moi was issuing circulars to judges instructing them on how to rule in particular matters, an act (issuing orders) that is well within the jurisdiction of the Chief Justice.

In 1993, President Moi directed magistrates to disallow bail applications for suspects charged with illegal possession of firearms. Again in 1996, judges attending a seminar in Embu alleged that the Executive was interfering with the administration of justice and called for reforms to protect them from the retaliatory attacks by the presidency against judges who ruled against the State.

With the recent interference, frustrations and budget cuts, could we be headed back to this era?  

Article 1 (3) of the Constitution delegates power to a judiciary that is separate from the Executive and Parliament and requires it to perform its functions in accordance with the law.

This means the Executive should not pressure, either directly or indirectly, the Judiciary to achieve its own political gain.

Article 60(1) establishes judicial independence by providing, "In the exercise of judicial authority, the Judiciary is subject only to the Constitution and the law.”

In regards to individual independence, judges must be individually and personally free to decide cases impartially, and on the basis of the law and facts presented before them. They must rule in accordance with the conscientious understanding of the law, free from any extraneous influence or pressure, threats or inducements from any quarter or for any reason.


As for institutional independence,  the Judiciary must be protected from interference from other arms of government. This is an important principle founded on the concept of separation of powers.

The appointment of judges, their security of tenure and other conditions of service must, therefore, be designed in a manner that would guarantee the Judiciary independence from external interference from the Executive and other senior government officials.


The Constitution under Article 168 provides for the grounds and the process of removal from office of the Chief Justice. The Chief Justice can be removed from office on grounds of mental or physical infirmities, breach of the Code of Conduct, bankruptcy, incompetence or gross misconduct.

The process for removal is overseen by the Judicial Service Commission, which can initiate the process on its own motion or upon a written petition outlining the facts constituting the grounds for removal.

The President shall then, within 14 days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendations of the JSC, appoint a tribunal to inquire into the matter as provided for under Article 168(5)(a).

The CJ’s statement on Monday portrays an Executive that is manipulating and/or frustrating judges and the Judiciary at large as evidenced by the recent judicial budget cuts.

Maraga paints a picture of a Judiciary that has no final authority and power to regulate the legality of the actions made by senior government officials such as Cabinet Secretaries and Principal Secretaries, a judiciary whose independence rests on robust executive power and commands. He portrays an image of a judiciary that is under pressure from the Executive to act as its agent and one that is under a threat that any decision made against the State shall be revisited to their disadvantage.

Judicial independence is fundamental to every democracy as a guarantor of separation of powers and the rule of law. It ensures justice and equity through judicial decisions that cannot be overruled by a political establishment.

It is fundamental to the rule of law, rights and freedoms enjoyed by the citizens, political stability and extremely essential to the fight against corruption.

An independent Judiciary is key to ensuring accountability for Executive power. Judicial independence is a cornerstone of democracy and good governance and therefore the doctrine should be protected and upheld by all state officials. Otherwise, the country’s justice system is likely to be crippled. This would undermine the rule of law and bring chaos.

It would further reduce the country’s economic growth and make the fight against corruption and the realisation of the Big Four  a myth.

Mugambi is a senior legal assistant, Ashfords & Co.Advocates

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