Kabaridi
JF-Expert Member
- Nov 15, 2011
- 2,022
- 534
When babies start growing teeth they become fastidious and touchy.
Our Constitution is growing teeth. It has become fastidious and we have become touchy. The most fastidious fact is that it is politicised.
This week has been sadder than we expected. The accusations and counter accusations between members of the Judiciary spilled over to the Legislature.
Conflicts between the legislative and judicial branch are not new to democracy. Some years ago Kalyan Chaudhuri, from Manipur, reported on the Judiciary and Legislature being at loggerheads. It was a conflict based on rights and privileges. In the end three judges from the Imphal bench had to leave the State and run for their lives.
Walter Bagehot, in The English Constitution (1867), bitterly criticised the English system in the following terms: The whole office of the Lord Chancellor is a heap of anomalies. He is a judge... yet he sits in the Cabinet, and makes party speeches in the Lords.
This situation did not change much until 2003, when the position of Lord Chancellor was abolished.
Philippa Strum in the US rightly argues that while Judges are protected from the passing whims of society and from human ambition they scarcely live or do their judging in a vacuum.
In the US a handful of lower court judges have been ousted by Congress. However, no Supreme Court justice ever has, although many legislators have raged against many Supreme Court rulings.
Congress has used its power over appellate jurisdiction very sparingly. The reason for congressional restraint lies primarily in the way the Supreme Court has gone about its job.
Independent Judiciary: The Cornerstone of Democracy
Indeed, the concept of the independence of the judiciary is underpinned by the 2010 Constitution and by several international instruments such as the 1985 UN General Assembly Resolution on Basic Principles of the Independence of the Judiciary, and the Commonwealth (Latimer House) Principles on the Three Branches of Government.
Article 160 of the Constitution consecrates Judiciary independence in the following terms: (1) In the exercise of judicial authority, the Judiciary shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority (3) The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund. (5) A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
A close interrogation of the provisions reveals a marked intention to protect the Judiciary, in exercise of the judicial function, from devices that have been used in the past to undermine the independence of the judiciary in Kenya.
Three Key Principles of Judicial Independence
In judicial independence there are three Principles at play: institutional independence, decisional independence and administrative independence.
Institutional independence means that the Judicial branch is independent from the Executive and Legislative branch.
Decisional independence allows judges to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
Administrative independence relates to the capacity of the Judiciary to have and administer its own financial means from a consolidated fund, far from any possibility of intimidation or manipulation.
But administrative independence is by its very nature accountable. The question is: To whom should the manager be accountable? This is where matters get interesting.
Article 125 of the Constitution grants to either House of Parliament or any of its Committees the power to summon any person to appear before it for the purpose of giving evidence or providing information. This is further supported by a general overseeing and impeaching role in Article 95.
This is why Gladys Shollei did well in appearing before Parliament. She is an accounting officer, and it is part and parcel of her job description to report to Parliament and the President when necessary or required.
The question then is: Does the obligation to report jeopardise independence? Reporting is a means to accountability and transparency, which is a necessary condition to maintain the trust required for dispensing justice. Reporting is even compulsory for some sovereign countries under specific conventions. This does not jeopardise their sovereignty, let alone their independence.
Therefore, institutional, decisional and administrative independence is not jeopardised by the obligation to report. However, no one can ask the Judiciary to report why they decided the way they did. This is within the sacredness of the performance of the judicial function.
But someone can ask the Judiciary to account for tax payers money withdrawn from the consolidated fund.
This someone is primarily the Judicial Service Commission. Parliament here has a secondary duty, on two accounts: By virtue of the general power granted by article 125, and by the fact that the JSC is in itself a Constitutional Commission with an obligation to report to Parliament and the President under article 254.
The JSC has an obligation to report to Parliament and to the President
Article 254 places on each Constitutional Commission the obligation to submit a yearly report to the President and to Parliament. The Judicial Service Commission as one of these Constitutional Commissions listed in Chapter 15, has a duty to report to the President and to Parliament.
The same article gives the President, the National Assembly or the Senate powers to require a commission to submit a report on a particular issue. And this report shall be published and publicised.
Here comes a fundamental point: We have been mistakenly applying to the JSC the same categories as the Judiciary. This is wrong. The JSC is not the Judiciary.
The Judiciary is clearly composed, according to Article 161, of the judges of the superior courts, magistrates, other judicial officers and staff.
However, the Judicial Service Commission is established by Article 171 as a Constitutional Commission tasked with the selection of judges. It deals with complaints against magistrates, judicial officers and Judiciary administrative staff. It may also institute proceedings for removing a judge.
Can Parliament Summon the CJ?
It depends what the motive behind the summons is. It cannot touch on institutional, decisional and administrative matters in relation to the performance of the judicial function.
But Parliament can ask the CJ, as the JSC chair, and the JSC at large to report on JSC related matters.
What then was the problem? That one of the parliamentary committees imprudently dived on the Judiciary like a vulture ready to devour its innocent prey.
Parliament should have requested a report from the JSC and invite the CJ as the JSC Chair to meet them. This would have been a sincere gesture of a brother who helps another brother who is going through a difficult time. But it was not to be.
Some Parliamentary Committees really need to switch form the combative to the constructive mode.
Certainly, this is so far the biggest test for the new Judiciary. Gold is tested in fire. There is fire, and the gold will remain.
Our Constitution is growing teeth. It has become fastidious and we have become touchy. The most fastidious fact is that it is politicised.
This week has been sadder than we expected. The accusations and counter accusations between members of the Judiciary spilled over to the Legislature.
Conflicts between the legislative and judicial branch are not new to democracy. Some years ago Kalyan Chaudhuri, from Manipur, reported on the Judiciary and Legislature being at loggerheads. It was a conflict based on rights and privileges. In the end three judges from the Imphal bench had to leave the State and run for their lives.
Walter Bagehot, in The English Constitution (1867), bitterly criticised the English system in the following terms: The whole office of the Lord Chancellor is a heap of anomalies. He is a judge... yet he sits in the Cabinet, and makes party speeches in the Lords.
This situation did not change much until 2003, when the position of Lord Chancellor was abolished.
Philippa Strum in the US rightly argues that while Judges are protected from the passing whims of society and from human ambition they scarcely live or do their judging in a vacuum.
In the US a handful of lower court judges have been ousted by Congress. However, no Supreme Court justice ever has, although many legislators have raged against many Supreme Court rulings.
Congress has used its power over appellate jurisdiction very sparingly. The reason for congressional restraint lies primarily in the way the Supreme Court has gone about its job.
Independent Judiciary: The Cornerstone of Democracy
Indeed, the concept of the independence of the judiciary is underpinned by the 2010 Constitution and by several international instruments such as the 1985 UN General Assembly Resolution on Basic Principles of the Independence of the Judiciary, and the Commonwealth (Latimer House) Principles on the Three Branches of Government.
Article 160 of the Constitution consecrates Judiciary independence in the following terms: (1) In the exercise of judicial authority, the Judiciary shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority (3) The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund. (5) A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
A close interrogation of the provisions reveals a marked intention to protect the Judiciary, in exercise of the judicial function, from devices that have been used in the past to undermine the independence of the judiciary in Kenya.
Three Key Principles of Judicial Independence
In judicial independence there are three Principles at play: institutional independence, decisional independence and administrative independence.
Institutional independence means that the Judicial branch is independent from the Executive and Legislative branch.
Decisional independence allows judges to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
Administrative independence relates to the capacity of the Judiciary to have and administer its own financial means from a consolidated fund, far from any possibility of intimidation or manipulation.
But administrative independence is by its very nature accountable. The question is: To whom should the manager be accountable? This is where matters get interesting.
Article 125 of the Constitution grants to either House of Parliament or any of its Committees the power to summon any person to appear before it for the purpose of giving evidence or providing information. This is further supported by a general overseeing and impeaching role in Article 95.
This is why Gladys Shollei did well in appearing before Parliament. She is an accounting officer, and it is part and parcel of her job description to report to Parliament and the President when necessary or required.
The question then is: Does the obligation to report jeopardise independence? Reporting is a means to accountability and transparency, which is a necessary condition to maintain the trust required for dispensing justice. Reporting is even compulsory for some sovereign countries under specific conventions. This does not jeopardise their sovereignty, let alone their independence.
Therefore, institutional, decisional and administrative independence is not jeopardised by the obligation to report. However, no one can ask the Judiciary to report why they decided the way they did. This is within the sacredness of the performance of the judicial function.
But someone can ask the Judiciary to account for tax payers money withdrawn from the consolidated fund.
This someone is primarily the Judicial Service Commission. Parliament here has a secondary duty, on two accounts: By virtue of the general power granted by article 125, and by the fact that the JSC is in itself a Constitutional Commission with an obligation to report to Parliament and the President under article 254.
The JSC has an obligation to report to Parliament and to the President
Article 254 places on each Constitutional Commission the obligation to submit a yearly report to the President and to Parliament. The Judicial Service Commission as one of these Constitutional Commissions listed in Chapter 15, has a duty to report to the President and to Parliament.
The same article gives the President, the National Assembly or the Senate powers to require a commission to submit a report on a particular issue. And this report shall be published and publicised.
Here comes a fundamental point: We have been mistakenly applying to the JSC the same categories as the Judiciary. This is wrong. The JSC is not the Judiciary.
The Judiciary is clearly composed, according to Article 161, of the judges of the superior courts, magistrates, other judicial officers and staff.
However, the Judicial Service Commission is established by Article 171 as a Constitutional Commission tasked with the selection of judges. It deals with complaints against magistrates, judicial officers and Judiciary administrative staff. It may also institute proceedings for removing a judge.
Can Parliament Summon the CJ?
It depends what the motive behind the summons is. It cannot touch on institutional, decisional and administrative matters in relation to the performance of the judicial function.
But Parliament can ask the CJ, as the JSC chair, and the JSC at large to report on JSC related matters.
What then was the problem? That one of the parliamentary committees imprudently dived on the Judiciary like a vulture ready to devour its innocent prey.
Parliament should have requested a report from the JSC and invite the CJ as the JSC Chair to meet them. This would have been a sincere gesture of a brother who helps another brother who is going through a difficult time. But it was not to be.
Some Parliamentary Committees really need to switch form the combative to the constructive mode.
Certainly, this is so far the biggest test for the new Judiciary. Gold is tested in fire. There is fire, and the gold will remain.