Our new-look judiciary is the best; let’s embrace it

Kenyans should celebrate and embrace the new judiciary instead of complaining that the courts have gone too far.

We should welcome the fresh breeze sweeping through the court corridors and the country instead of crying for the return of the old order.

The county has been so used to a docile judiciary that used to take its orders from politicians that they are refusing to internalise the virtues of an independent judiciary.

Kenyans should rejoice that the judiciary has started the process of liberating them from the enveloping dominance of politicians.

They should appreciate that the Constitution has transferred ownership of the judiciary from the executive to the people.

Following a number of far-reaching decisions that shoved politicians from the societal centre of gravity and installed the judiciary as the fair arbiter of disputes, a number of loudmouths have been heard saying our courts have become liberal and radical.

These cases that have captured the attention of Kenyans are mainly generated by two courts. First is the constitutional and human rights division of the High Court headed by Justice Isaac Lenaola.

The second one is the judicial review division of the High Court headed by Justice Mohamed Warsame.

Unlike the other courts, these two divisions of the High Court principally arbitrate political disputes between individuals and the State or its organs.

This radical change in the thinking and philosophy in the judiciary is brought about by a number of factors.

First, the Constitution brought a revolution to the judiciary. It freed the judiciary and dared it to fly.

It removed the controls and influences the executive historically exercised over the judiciary. Our judiciary institutionally is independent and free.

Second, the executive has lost access to both individual judges and the leadership of the judiciary.

In the past when the government wanted certain decisions to go its way or the way of its political supporters, a direct approach could be made to the Chief Justice, who inevitably would talk to the judge and deliver to the executive.

Control and patronage

In some well-known cases, powerful politicians and the security organs used to exercise control and patronage over some judges. That era has gone up in smoke.

Chief Justice Willy Mutunga was detained without trial by the government of Kenya, and its inconceivable for a politician or the executive to knock on his door for favours.

Third, Kenyans should realise that with Dr Mutunga as chief justice, the Kenyan people who fought for reform have wrested control of the judiciary from those who have always advocated for the status quo.

The reformers have seized control of this arm of government. The challenge now is not to complain about the new thinking in the judiciary but to replicate the reform formula in the two other arms of government.

Four, the fresh breeze of the judiciary is not limited to the two courts. The Commercial court, the family division and other courts are doing the same.

Commercial disputes are now settled quickly and in a corruption-free atmosphere. The wheels of justice are moving fast and without speed governors.

This, again, is principally due the calibre of judges who have bee recruited recently. Kenyan judges are nowadays the best in the legal profession recruited on the basis on transparency and accountability.

But who is complaining about the new judiciary? Principally, students and orphans of Kanu and also few senior lawyers who are known remnants of the old order.

Some new converts and a Johnny-come-lately to the reform process are also uncomfortable with the new judiciary. Neither group matters.

It is the Kenyan people who must be vigilant to guard and protect the people’s judiciary. Personally, I think we need an even more robust and radical judiciary.

Mr Amednasir Abudullahi is the publisher, Nairobi Law Monthly [email protected]