That we need and must have an independent Judiciary is not subject to debate.
But what exactly is being an independent Judiciary? If you ask an academician or someone deeply versed in jurisprudence, they will give you an hour-long oral lecture or pages-long dissertation.
A less academic person and most practitioners of the law will probably give you a variation of the generally accepted definition of judicial independence as the ability of a judge to decide a matter free from pressure, inducements or threats, and freedom of the institution of the judiciary from nefarious government interference.
Historically, the Executive — the president — has been the culprit in interfering with the Judiciary.
In fact, before the promulgation of the 2010 Constitution, we had no judiciary [to speak of], let alone an independent one.
It only exited by name, as neither justice nor adherence to the principle of rule of law ever saw the light of day during those days of wallowing in judicial darkness.
Most, if not nearly all, of that changed with the promulgation of the 2010 Constitution and two things happened that had many excited, if not the whole nation.
For the first time since Independence, the Judiciary was given the greatest autonomy from the Executive, which always had it on a chokehold. The establishment of the Supreme Court and creation of the position of the president of that court besides being a chief justice ensured the holder of the office would have enough authority to reform the institution.
Second, buoyed by these newly found powers and spirit of the Constitution, the judicial vetting for magistrates and judges was undertaken to clean up the Judiciary and get rid of the rot that had accumulated there.
However, if Kenyans had high hopes for the judiciary, those hopes were dashed for many when the Supreme Court led by then Chief Justice Willy Mutunga tossed a petition filed by ODM leader Raila Odinga challenging the election of Uhuru Kenyatta as President in 2013.
The tossing of that petition, without even giving the petitioners a hearing on their evidence, marked the worst decision ever rendered by the apex court and there will likely never be another one like it.
It has been downhill for the Judiciary since and right now, the institution needs a major stabilising force, lest we find it slowly regressing to where it once was, if not worse.
The problem is not the lack of judicial independence or some lingering rot or stench of the old. Yes, the Judiciary is not all that independent, and there is lingering rot or stench from old, but the problem is more dangerous than that.
While most judges from all levels of the Judiciary comport themselves as the jurists they are, some are taking the concept of an independent Judiciary and swinging the pendulum to the other extreme of judicial independence with no different harmful effect as was the case when the pendulum was on the opposite side.
Put another way, some judges are removing their judicial hats off and putting on their political hats on and daring the Executive or anyone else to mess with their powers as judges of an independent judiciary.
To be sure, the Executive was first in taking us down this dangerous path when a certain Cabinet Secretary and others blatantly ignored a court order.
The response has been in the latest case a High Court judge ordering the jailing of DCI boss George Kinoti for contempt of court.
This cannot go on.
Yes, court orders must be obeyed, but judges also must know when not to escalate things for when two elephants fight, it is the grass that suffers.
Justice and the appearance of justice will be the grass in this case, should some judges say it is time to flex their muscles and show the Executive what being an independent Judiciary is from their activist point of view.
Samuel Omwenga is a legal analyst and political commentator
