We must protect judicial independence of Judiciary

Recently, President William Ruto, while addressing mourners in Nyandarua County, explicitly stated that the Judiciary was working in cahoots with a syndicate, ostensibly the opposition, to undermine his development agenda and plans. He also claimed that the said action by the Judiciary was tantamount to 'judicial tyranny and impunity'.

While the Judiciary has in the recent past made landmark rulings such as upholding President Ruto's victory in the disputed 2022 presidential election, as well as the 2021 ruling that the Building Bridges Initiative (BBI) was unconstitutional, the claim that the judiciary is now compromised is laughable.

The allegations made by the President are very serious, especially since there are established rules of procedure and institutions mandated to scrutinise any professional misconduct of judicial officers.

In examining John Locke's and Alexis Montesque's doctrine of separation of powers, the Judiciary remains independent of the Legislature and the Executive. Kenya's Constitution of 2010 has remedied interventions that would prevent the Judiciary from being interfered with by the Executive. This was achieved by separating the Judiciary from the Attorney General's office and by not giving the President the power to appoint and dismiss judges at will.

Questions arising from the comments made focus on the effectiveness of judicial independence in the Kenyan courts. Awareness that the Kenyan Constitution (2010) has clear guidelines and a code of ethics governing the conduct of judicial officers should steer us away from paranoia that the Judiciary has been compromised.

It is implausible to expect a court to rule in favour of a development agenda that has not been subjected to public inclusion and participation. A perception that the bench has been compromised should go hand in hand with addressing these allegations formally. The Judicial Service Commission (JSC) exists for this very purpose.

The separation of powers between the three arms of government is a sacred doctrine which, if disturbed, is unlikely to work well in the long run. We have seen in the past how a clash between the Judiciary and the Executive ends up embarrassing both arms. The National Rainbow Coalition (NARC) government attempted the radical surgery of weeding out incompetent or corrupt judges and magistrates in 2003, but it failed. Subsequent governments have tried to attack and intimidate the Judiciary for issuing rulings that are not in their favour, only to be seen by citizens as the Executive politicising the Judiciary.

This is not to say that the Judiciary is free of loopholes, but at this stage it has mechanisms to deal effectively with the allegations the President made.

- Mikhail Nyamweya, Oxford, UK