What are the problems in Judiciary and how does BBI solve them?

 

A couple of weeks ago I participated in a webinar discussion on how the Building Bridges Initiative’s proposed constitutional amendments would affect the judiciary.

This is of particular concern to us, as Katiba Institute, given the critical role the Judiciary has played in the last 10 years to safeguard the gains to our democracy and human rights protections afforded under the 2010 Constitution.

I think we all agree that our democracy would have been much worse without the numerous judicial decisions declaring laws, government actions and decisions unconstitutional. The weakening of Parliament as an institution overseeing executive actions meant more and more controversies of a political nature found themselves in court, increasing conflict between the Judiciary and the other two arms of government.

The political class seems to want to create the perception of a hierarchy of those arms, with perhaps the Executive at the top, followed by the Legislature and then the Judiciary. This is definitely reflected in the funding of the three. It is also reflected in a culture of government officials choosing which court decisions to abide by and which to disregard – creating a culture of impunity and a breakdown of rule of law.

Enter the handshake and the BBI Taskforce’s resolve that reforms must protect the “independence of the Judiciary … as a fundamental principle, while the Judiciary should be accountable in a clear manner to the sovereign people of Kenya”.

Like other public institutions, the Judiciary is required to protect and uphold the Constitution. It plays a critical role: applying and interpreting laws, policies and practice that govern Kenya. To equip the Judiciary for that role, the Constitution provides judicial officers with immunity from legal liability for performing their judicial functions and security of tenure for judges.

Judges’ salaries are charged to the Consolidated Fund (and must be paid); their remuneration cannot be changed to their disadvantage during their lifetimes; the judiciary fund is to be administered by the judiciary; it is hard to remove judges; and the Judicial Service Commission takes part in hiring, dismissal, and promotion of judicial officers.

As a final layer of protection, any constitutional amendments affecting independence of the judiciary, must be approved by referendum (Article 255(1)). And the Judiciary is subject only to the Constitution and law and not to the control or direction of any person or authority (Article 160(1)).

JUDICIARY INDEPENDENCE

The Supreme Court’s remarks in the National Land Commission case in 2015 about independent commissions apply to the judiciary also. It referred to

• “Functional independence” - carrying out functions without receiving any instructions or orders from other state organs or bodies;
• “Operational independence” - through procedures for appointments of commissioners [or judges], and for decision-making of the commission;
• “Financial independence” - accessing funds reasonably required for its functions; and
• “Perception of independence” – that people can see that the commissions carry out their functions free from external interferences.

Of particular importance vis-à-vis the BBI proposals, are operational independence and perception of independence.

BBI BILL TO AMEND CONSTITUTION

The Bill proposes to change the Judiciary first by limiting the terms of the President of the Court of Appeal and the Principal Judge of the High Court to one term of  five years. Why?

The concern may be to curb the influence of the holder of the office over other judicial officers and the system. However, persons elected to that position do not seem to stay in that role for too long; Justice Kihara Kariuki, was President of the Court of Appeal for six years and Justice Richard Mwongo of the High Court, for five years.

It proposes that the Supreme Court should not hear any appeal from the Court of Appeal in an election petition, even if it involves a constitutional point or a matter of general public importance. The Supreme Court has been criticised for hearing such appeals as it prolongs a final decision on whether someone has been validly elected. (Presidential election petitions go straight to the Supreme Court.)

BBI would increases the minimum professional experience to become a Supreme Court Judge to 20 years and to 15 years to become a Court of Appeal Judge; an increase of five years for each position. The rationale could be to distinguish qualifications for the High Court (10 years) and Court of Appeal judges. Generally, however, judges already meet these qualifications. A few people with lower qualifications have tried to apply, but did not get very far in the recruitment process.

A new proposed clause would mean that, like the CJ, the deputy CJ may serve for 10 years or until retirement as a Judge, and can remain on the Supreme Court after retiring as DCJ. My understanding of the clause is that it does not prevent the DCJ from becoming the CJ and serving 10 years. I also do not read this as saying that the DCJ has to leave office when the CJ does.

The office of Judiciary Ombudsman would be established with, among others, the power to receive and conduct inquiries into complaints against judges, registrars, magistrates, and other judicial officers and other judiciary staff. The Judiciary Ombudsman was an administrative office created by former Chief Justice Willy Mutunga to, among others, expedite processing of complaints from members of the public.

The BBI report says this is to enhance the independence of the Judiciary. But until now, the appointment of an Ombudsman has been a purely judicial affair (and therefore independent). This Ombudsman is now to be appointed by the President with the approval of the Senate (curiously) - and therefore lessens the independence of the Commission (and therefore the Judiciary).

The President already exercises sufficient influence over the JSC by the 3 persons he appoints (the Attorney General and the two persons supposedly to represent the public); do we want to add to that?

The proposals provide that the Judiciary Ombudsman could bring to the JSC a motion to remove a judge. The JSC could still initiate removal and could still receive other people’s motions for removal. If the Ombudsman does initiate the process, doesn’t this seem to confuse the roles of investigator, prosecutor and judge?

The JSC would be given power to receive complaints against judges, investigate and discipline judges by warning, reprimanding or suspending a judge. Currently, the JSC’s powers of discipline (other than removal which is now the only effective sanction for judges) have applied only to magistrates and staff. This could be a useful tool for the JSC in enhancing standards of discipline among judges, but we may have to be cautious – suspension may be a serious interference with the judiciary.

The proposals would limit the tenure of JSC members, except the AG and CJ, to one term of 5 years. Currently, they could be nominated for a further term of 5 years. This would put JSC members more on par with other commissioners under Chapter 15 – they serve one term of 6 years. Again, maybe this is to curb influence of JSC members. Article 171 is also proposed to be amended to provide that JSC members shall not practice in courts and tribunals during their period of service with the Commission. There has been some suggestion that the advocate members can intimidate judges (whom they may have been involved in appointing). The downside to this proposal is that it may limit the range of advocates who would wish to serve on the JSC.

CONCLUSION

All in all, we must ask what are the problems under the current system that BBI has identified and how would proposed changes address the problems, if any? Is it necessary to introduce these provisions at all or can any supposed problems be cured by practice, policy or legislation? Are the supposed solutions enhancing independence of the Judiciary and rule of law? In other words, do these changes address funding, appointment of judges and obedience of court orders – currently our greatest concerns?