Judiciary doing a good job and should not be intimidated by other state arms

The Legislative and Executive arms of government are back to the old Kanu ways when the Judiciary was made to look like an appendage of the State and crucial decisions in which the government had an interest had to go the Executive’s way.

The situation is made worse by members of Parliament, who imagine that they are above the law, all-powerful and not subject to judicial decisions.

It should be recognised that the Judiciary has a distinct, core, peculiar and independent mandate that is incomparable to the other arms of government and that it is, indeed, the democratic pillar and cornerstone of all civilised societies in the world.

How the Judiciary should, therefore, be said to have encroached on the constitutional mandate of the Legislature is difficult to understand.

Who is supposed to address and impartially interpret constitutional issues? Is the Legislature immune from court orders and, therefore, above the law? Perhaps the Constitution should be amended to grant it such immunity.

Why is the Senate overzealous in receiving impeachment proceedings from county assemblies even when there is evident malice and open disregard of laid down constitutional processes for which an aggrieved party has a constitutional, legal right to challenge in a court of law and, more importantly, when everybody knows the partisan, political, and at times ethnic nature of how our Parliament handles issues?

UNWARRANTED SIDESHOWS

Faulting the courts for the orders they make is, therefore, unwarranted because aggrieved parties are at liberty to seek redress through appeals or by way of review and/or setting aside of the directives.

Granting of ex parte orders is provided for within our legal framework so that unless we amend our civil procedure rules, courts cannot be faulted for issuing such orders.

What we seem to forget is that courts do not always grant ex parte orders. On most occasions requests for such orders are, in fact, declined as there are set requirements in law that litigants have to meet and which all judicial officers are appraised of as they deal with such matters on a daily basis.

It is strange for the Executive and Parliament to expect the Chief Justice to formulate a policy and/or direct judicial officers on how and when to issue and not issue orders because, apart from added administrative responsibilities, the CJ is merely a judge of the Supreme Court like any other.

GROUNDS TO REMOVE CJ

Any evidence that he tried to influence how judicial officers work would form good grounds for his removal from office since every judicial officer is deemed competent and independent so that all the decisions made by each one of them is expected to be well informed and in accordance with the law.

The Judiciary should instead be commended for the wonderful job it is doing by seizing the opportunity to exercise its constitutional mandate without fear or favour in the face of a floodgate of constitutional petitions and judicial review cases springing out of our new robust Constitution.

The more the Executive and Parliament make noise and complain, the more it will become apparent that the Judiciary is exercising its constitutional mandate independently.

REMAIN INDEPENDENT

Judicial officers should not forget that political positions are elective and will always change with time, but that they are expected to be independent. That is one of the reasons judges have security of tenure, unless of course in exceptional circumstances, when a tribunal is formed to remove them from office.

Judicial officers should also never forget that some of them were recently hounded out of office for being gatekeepers for the Executive and/or delivering court decisions in favour of the rich and powerful politicians at some point in time.

When the time of reckoning came, due to change in political leadership, there was no politician to save them from a disgraceful exit.

Dispensing real justice in accordance with the law and legally interpreting it without fear or favour, as is happening now, is evident from the loud noise from politicians. It is every judicial officer’s only shield and defender.

The writer is an advocate of the High Court of Kenya. ([email protected])