Authority

 

As stated above, the Judiciary is an organ of governance by the people of Kenya for the people of Kenya. It is a product of separation of power (Part 6 Miscellaneous Matters) ....... to create checks and balances and to ensure accountability of the Government and its officers to the people of Kenya. 

Excerpts from Chapter 1 - Sovereignty of the People and the Supremacy of this Constitution, Articles 1.(1),(3):

1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
(3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution–– ....... (c) the Judiciary and independent tribunals. 

The Judiciary and the independent Tribunals will be completely independent of any other authority or person. Excerpts from Article 160 of Chapter 10 - The Judiciary, Part 1 - Judicial Authority and Legal System:

160. (1) In the exercise of judicial authority, the Judiciary, ....... shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.

This authority, its functions and regulations have been provided and effected in the Judicial Service Act, 2011

In a bid to rid itself of corrupt and incompetent senior judicial officers, the people of Kenya provided through the New Constitution, the vetting of all judges and magistrates. Excerpts from Sixth Schedule, Section 23: 

23. (1) Within one year after the effective date, Parliament shall enact legislation, ...... establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.

The vetting process was not without controversy; mainly because it appeared to deny the affected Judges the fundamental right of appeal:

(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.

Well-known human rights activist Okiya Omtata Okoiti summarised very well the controversy brought about by (2) above when he wrote in a newspaper opinion that, "We cannot be upholding the rule of law if, to find the judges unsuitable, we deny them their rights and fundamental freedoms enshrined in the Bill of Rights". (Okiya Omtatah O, 2012).

What had followed was that the High Court upheld the right of Judges to appeal in Court the decisions of the Judges and Magistrates Vetting Board, the body set up to vet them, (apparently) contrary to sub-article (2) above.

The matter did not die there, as it would eventually end up at the highest court of the land - the Supreme Court - which ruled that the constitutional transitional nature and place of the Board allowed it to have the final say on the suitability to serving judges and magistrates to continue in office.

All in all, the people's determination to clean up the bench was well demonstrated with the swift replacement of the Chief Justice at the time; he was required to vacate that office within 6 months of the passing of the new constitution - an indication of the strong desire to make a clean break with the old order. Excerpts from Section 24:

24. (1) The Chief Justice in office immediately before the effective date shall, within six months after the effective date, vacate office ....... or; b) subject to the process of vetting under section 23, to continue to serve on the Court of Appeal.

These changes, which in the past would have been driven by executive interest, did not occur in a vacuum. They were aided, in no small part, by the work of the Judicial Service Commission, JSC, and the Commission for the Implementation of the Constitution, CIC, whose performances in the recruitment of the new judicial office bearers (among other tasks), and in guiding the implementation process respectively, received wide public support in the immediate period following the adoption of the New Constitution.

Thus, a healthy relationship between the JSC and the Courts ought to provide many lessons on the separation of powers in the spirit and letter of the New Constitution.

The Judiciary of the Republic of Kenya is headed by the Chief Justice, the  Deputy Chief Justice, and the Chief Registrar:

161. (2) There is established the office of–– (a) Chief Justice, who shall be the Head of the Judiciary; (b) Deputy Chief Justice, who shall be the Deputy Head of the Judiciary; and (c) Chief Registrar of the Judiciary, who shall be the chief administrator and accounting officer of the Judiciary. 

 

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