Judicial independence is at risk of erosion, compromise

The transfers of judges announced on Tuesday is the clearest sign ever that the Judiciary is no longer independent from Executive interference.

And that could dent the image of Chief Justice Martha Koome as it seems to claw back on the gains made in the judicial sector following the promulgation of the 2010 Constitution.

The timing of the transfer of Justice Mugure Thande from Nairobi to Malindi so soon after she granted conservatory orders against the implementation of the Finance Act, 2023 is being seen as not coincidental.

It is suspected to be retaliation for the rulings she made in respect of the said law, which has had adverse effects on the implementation of the national Budget for the current financial year.

The move is widely seen in the legal circles as a covert attempt by the CJ at camouflaging punitive transfers through a communication from the principal judge of the High Court.

Transfer of judges being purely a prerogative and administrative duty of the CJ, as the head of the Judiciary, that would be ingenious of her and not an intelligent way of deflecting the public outburst that was clearly anticipated.

For the first time since the promulgation of the 2010 Constitution, the Judiciary is being perceived as being under threat and/or manipulation of the Executive.

The question that, therefore, begs for an answer is whether CJ Koome is gatekeeping for the Executive. Should this be the case, then the soul of the Kenyan republic and its democratic fabric will have been lost.

And was Justice Hedwig Ong’udi also transferred from Nairobi to Nakuru on account of the ‘adverse’ decision made in the chief administrative secretaries (CAS) case ? These are hard questions that may not be glossed over.

Is the CJ intent on a legacy of being remembered as the first post-2010 Constitution CJ who eroded all the gains made in the independence of the Judiciary? It is more than evident that the well-guarded judicial independence during the tenure of CJs Willy Mutunga and David Maraga is slipping away.

Punishment and reward

The ripple effect of the transfers could not have been captured better than as summarised by Ahmednasir Abdullahi in a tweet. The senior counsel stated that transfers are a form of punishment and reward for judges and thus Justice Thande was ‘paying’ for her decision on the Finance Act.

I hope the judges will garner the courage to rise to the occasion and fend off and withstand the undue pressure and intimidation tactics being applied in the case of Justice Thande. They should live to their ethical calling and oath of office—to dispense justice without fear or favour—to guard against oppression and protect their decisional independence and the integrity of the judicial decisions they make.

Should the Judiciary become irrelevant in the eyes of the public, we would have a lawless, free-for-all society. This is because it is the very last port of call for the weak and mighty alike and the cornerstone a democratic country stands and is built on.

- Mr Sumba is an advocate of the High Court of Kenya. [email protected].