The Judiciary Under the New Constitution
Fair. Impartial. Expeditive
The Judiciary of the Republic of Kenya gets its authority from the people of Kenya. It will exercise this authority via courts and tribunals, to interpret and apply the law of the Republic. It will do so independently without subject or control of anyone or any authority except the Constitution and the Law.
The people of Kenya expect a Judiciary that is fair, just, impartial, and one that quickly delivers justice to them. The Judiciary must also actively promote itself as accessible, friendly and affordable.
Judicial Authority will be exercised through Superior and Subordinate Courts. Superior Courts will include the Supreme Court, the Court of Appeal and the High Court. Other Courts covering specific jurisdictions will include Employment and Labour Courts, Environment and Land Courts as well as Tribunals, all of which will have the authority of a High Court.
Subordinate Courts will include Magistrate Courts, Kadhis' Courts and the Courts Martial, as well as other courts and tribunals established by law through the Parliament of the Republic of Kenya.
The Chief Registrar of the Judiciary shall be the chief administrator at the Judiciary as well as the accounting officer of the Judicial Fund.
On the 27th of August 2010, by way of a referendum, the people of Kenya adopted a New Constitution replacing the 1963 independence constitution. This New Constitution provides that all sovereign power belongs to the people of Kenya. Thus the people are the supreme authority in Kenya on all matters. The people of Kenya have then delegated some of that sovereign power to a state organ to be known as the Judiciary (and independent tribunals) to exercise it on the people's behalf. Excerpts from the New Constitution's Part 6 Miscellaneous Matters:
....... AND WHEREAS for the last two decades, the people of Kenya have yearned for a new Constitution which— (c) recognises and demarcates divisions of responsibility among the various state organs, including ...... the judiciary, ........
"Therefore, the (new) Constitution is intended to reestablish the legitimacy of the legal order" (Ng'eno, 2013); ultimately, to deliver clear demarcations and relationships between the three arms of government and more pertinently, that of the judiciary with the other two arms.
The judiciary had become an extension of the executive authority when it was robed of much of its legitimacy and authority (aided in no small part by a rubber-stamp legislature) so that more and more power was concentrated on the President from when Kenya became a republic in 1964: ".......and from December 1964, a frenzy of constitutional amendments began, that saw the consolidation and over-concentration of legitimate power and authority in the executive arm of the government, and the presidency in particular, at the expense of the other arms of government. Notably, ........ the judiciary aided and abetted this process ....... by incarcerating the regime’s opponents" (Kivuva, 2011).
This negative history of the Judiciary is behind the great expectations placed on it by the people to lead the way in reforms under the New Constitution and deliver a clean break with that past. These (unwritten) expectations do not just encompass justice for all, but justice for each. In recognizing this, J B Ojwang' explains that although the other two arms of government i.e. the Executive and Parliament do exercise the people's power on their behalf, it is the judiciary that is well placed to address the immediate grievance of an individual citizen:
"The citizen has no capacity to move the nebulous electorate, or the cumbersome Parliament, to solve his or her grievance. It is the judiciary that comes in handy, as a structured institution, at which a claim can be lodged at the registry, and set for hearing before a court, within a determinable period; and the court is invested with jurisdiction and power to determine the question, and issue binding decrees. The exercise of public power is accountable to the electorate and the legislature only in the long and medium terms; but in the short term, within the constitutional set-up, the individual can only look to the judiciary, for redress" (J.B Ojwang, 2008).
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.
As a creation of the Constitution and in order to ensure separation of powers, the Judiciary's primary role is to exercise Judicial Authority given to it by the people of Kenya, who are the supreme authority. Chapter 10 - Judiciary, Part 1, Article 159.
159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
This authority as J B Ojwang' observes quoting RWM Dias, includes the right to interpret the Constitution, more so to check those wielding executive power and who by default hold partisan interests. “[E]very constitution has to be interpreted, so the effectiveness of its restraints rests ultimately with the interpreters, i.e., the judges and the measure of their sympathy with and independence of government.” (Ojwang, 2008.)
The authority given to the judiciary is unique and specialised: "to focus on the government's adjudicatory function and fidelity to the constitution and the rule of law" (Sihanya, 2011).
Ojwang' observes that as a function of governance, "........ in constitutional theory and practice, independence of the judiciary is a vital element ....... so we may attribute to the judiciary, and demand of it, as a standard expectation, independence." (Ojwang, 2008).
As can be expected, the people of Kenya have eagerly attached a certain level of ownership to the faces behind judicial positions especially at the top level of Supreme Court Judges. Firstly, these judges must reflect the face of Kenya. Secondly, in them, the people's hope is that they will bring with them a value system that is truly Kenyan, and thus can be expected to properly interpret the spirit of our constitution and laws. "....... Independence means far more than immunity from interference; it means that they are free to bring their own sense of values to bear in considering legislation ....... (Ojwang', 2008).
In fact, what the people did through the New Constitution was to give the new Judges of the Supreme Court (upon assumption of office via an open and transparent public vetting), a free hand to birth a new dispensation. Consider sub-Article 163. (8) of Chapter 10, Part 2 - Superior Courts: 163. (8) The Supreme Court shall make rules for the exercise of its jurisdiction.
The need to 'Kenyanise' our judiciary is echoed by the New Constitution's provision for gender and regional balance in the composition of state offices. It (the constitution) is however silent on the methodology of promotion and remuneration of its officers. This omission however, should not weaken its ability to function effectively because the judges have security of tenure and their terms of service have been vested on the Judicial Service Commission and not the Executive.
The people of Kenya also expect a fast and impartial judicial system that is able to protect the rights of all as enshrined in the New Constitution. Excerpts:
159 (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles— (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.
(3) Traditional dispute resolution mechanisms shall not be used in a way that— (a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law.
The members of the Judiciary will not be expected to show any fear while going about their duties for they will have certain immunities in the job as well as security of tenure and personal income even after retirement. Excerpts:
160. (2) The office of a judge of a superior court shall not be abolished while there is a substantive holder of the office.
(3) The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund.
(4) Subject to Article 168(6), the remuneration and benefits payable to, or in respect of, a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge.
(5) A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
And from Part 2 - Superior Courts:
168. (2) The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.
The removal of the judge will only be possible upon the recommendations of an independent Tribunal established to investigate his/her misconduct and which has found sufficient grounds to do so. The security of tenure for these judicial officers is a comforting and welcome provision for the people of Kenya when it is recalled that it had been removed in 1988 (albeit for a limited period) by a constitutional amendment sponsored by an all-powerful executive arm of government and passed by a rubber-stamp parliament and thereby negating in practice, the inalienable right of access to justice for all. Indeed the executive was so opaque and lording over the citizen at the time that when pressed to explain the rationale of this amendment to the constitution the then Attorney General said, "We are only streamlining the procedure so that the President as head of government and executive has unfettered discretion in the matter. This does not mean that in an appropriate case he cannot order an inquiry into the conduct of any incumbent." (Mwangi, 2001)
The Supreme Court existed briefly at independence but was abolished with the amending of the then constitution in 1964. It was replaced by the Appeal and High Courts under a Chief Justice. The New Constitution re-introduces the Supreme Court and assigns it the highest executive role within the Judiciary. Excerpts from Part 2 - Superior Courts:
163. (7) All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
Functionally, the Supreme Court is made up of seven judges as provided in the New Constitution. Excerpts:
163. (1) There is established the Supreme Court, which shall consists of— (a) the Chief Justice, who shall be the president of the court; (b) the Deputy Chief Justice, who shall— (i) deputise for the Chief Justice; and (ii) be the vice-president of the court; and (c) five other judges.
Chief Justice Willy Mutunga, President of the Supreme Court
In a country such as ours where just about everything of public interest is often politicised, the Supreme Court and the rest of the courts, will be expected at every turn, to remind the public of the need make reference to and fall-back to constitutional interpretation of issues of controversy for guidance and consensus. This is critical at a time when the country is transitioning from the old into the new (and modern) Constitution and constitutional order; and in order to maintain public faith this court must be seen to pursue ".......a coherent and principled approach to the interpretation of the Constitution" (Ongoya, 2008).
Judicially, this court will be expected to hear and determine certain and specific matters or appeals that carry significant public weight and interest such as on the validity of the election of the President, and which may crucially, originate from any citizen. Excerpts from Articles 140 (of Chapter 9 - The Executive, Part 2 - The President and Deputy President):
140. (1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
Again from Chapter 10:
163. (3) The Supreme Court shall have— (a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President ...... .
Following announcement of results of the March 2013 Presidential Election by the IEBC, the Coalition on Reform and Democracy CORD, challenged before the Supreme Court, the election of the Jubilee Coalition's President-elect. CORD petitioned that the "....... electoral process was so fundamentally flawed that it precluded the possibility of discerning whether the presidential results declared were lawful......" Although the Supreme Court found that the vote process did experience operational and logistical challenges, it ruled, unanimously, that the presidential election was sufficiently free, fair, credible and transparent and allowed the declaration by the IEBC to stand.
The Supreme Court will also be on hand to hear appeals originating from the Appeals Court or if law permits, other Superior Courts or Tribunals:
(3) The Supreme Court shall have— (b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from— (i) the Court of Appeal; and (ii) any other court or tribunal as prescribed by national legislation.
The Supreme Court however will be expected to act mostly as an advisory court. It will be expected to keep an eye on the goings on in the country, and courts, as well as have a sense and ear to the public mood and aspirations; and perhaps to act as the voice of the people during times when they may feel that their representatives in parliament have failed or the government is insensitive to their needs:
(4) Appeals shall lie from the Court of Appeal to the Supreme Court— (a) as of right in any case involving the interpretation or application of this Constitution; and (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
The Supreme Court will also have a say on the weighty matter of a state of emergency. Chapter 4 Part 4 - State of Emergency, excerpts from article 58:
58. (5) The Supreme Court may decide on the validity of— (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; and (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
Should there be a dispute between a County government and the national government (or any of its agent organs), the Supreme Court is well placed to advise the protagonists on how to resolve their differences:
163. (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
Indeed, the Court was called upon by the Senate in June 2013, to give an advisory opinion touching on whether the National Assembly acted unconstitutionally by disregarding the input of the Senate, or a mediation committee of the two Houses, before forwarding the Division of Revenue Bill 2013 to the President for assent. The Court ruled on the 1st of November 2013, by a unanimous decision, that the lower house erred in its actions.
Court of Appeal
The Court of Appeal is properly recognised by the New Constitution as an appelate court subordinate only to the Supreme Court. As a superior court, its decisions will be final except only in certain 'weighty' cases that may call for and/or involve the wise counsel of the Supreme Court. Excerpts from Chapter 10 - Judiciary Part 2 Superior Courts:
163. (4) Appeals shall lie from the Court of Appeal to the Supreme Court— (a) as of right in any case involving the interpretation or application of this Constitution; and (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
Clause (5) above is important to the extent that it affirms the people of Kenya as the supreme authority and from whom the Court of Appeal is bequeathed authority by way of delegation.
The composition of the Court of Appeal is also defined in the New Constitution in Chapter 10 Part 2. As its name suggests, the Court of Appeal will mainly concern itself with the hearing of appeals from the High Court (and lower courts) and Tribunals and as such (unlike the Supreme Court) will not be a proactive court. Like the Supreme Court, this appellate court will have a president to improve its management and accountability. Excerpts:
164. (1) There is established the Court of Appeal, which— (a) shall consist of the number of judges, being not fewer than twelve, .......
(2) There shall be a president of the Court of Appeal who shall be elected by the judges of the Court of Appeal from among themselves.
(3) The Court of Appeal has jurisdiction to hear appeals from— (a) the High Court; and (b) any other court or tribunal .......
The High Court of Kenya's jurisdiction will be concerned with a wide range of legal issues ranging from the determination of all criminal and civil matters, to being the protector of the Bill of Rights, and as an appellate court to decisions made by a tribunal setup to consider the removal from office of a state official (excluding the president). The High Court is provided for in the New Constitution as a Superior Court; excerpts from Article 165, etc, Chapter 10 Judiciary, Part 2 - Superior Courts:
165. (1) There is established the High Court, which— (a) shall consist of the number of judges prescribed by an Act of Parliament; ........
This number is prescribed by the The Judicial Service Act, 2011. It is fair to say that this number will depend largely on availability of money to run the courts, on population and geography and most importantly, the pace of maturity of our new devolved governments.
The head of the High Court will be called Principal Judge of the High Court:
165. (2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
Obviously, the High Court will have authority and supervisory roles over lower courts only. It will therefore be expected to monitor the goings on in the Subordinate courts and could at its own discretion, take control of a matter in those courts when in its opinion, justice is not being served adequately. Excerpts:
165. (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
As the General Elections of 2013 approached, the High Court embarked on extensive self-preparations for the timely hearing of the large number of appeals expected from the elections. Chapter 7 - Representation of the People, Part 1 - Electoral System and Process:
87. (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
And so it was that numerous electoral petitions on the 2013 General Election results for Governor, Senator, Women Representative, and Member for the National Assembly were lodged in the High Court throughout the country soon after the IEBC announced the results:
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
The High Court will play an important role of protecting the Bill of Rights in allowing and hearing appeals for new trials for offenders convicted by any court; and in cases where an appeal decision has even been heard and determined by either the Court of Appeal or the Supreme Court. Excerpts from Chapter 4 The Bill of Rights, Part 2 Rights and Fundamental Freedoms, Article 50:
50. (6) A person who is convicted of a criminal offence may petition the High Court for a new trial if - (a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and (b) new and compelling evidence has become available.
Industrial (Employment & Labour) Courts
The New Constitution grants the Industrial Court the status of a high court. Excerpts:
162. (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations; ........
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
Indeed, on August 25, 2011 the 10th Parliament enacted the Industrial Court Act, 2011 to "....... to confer jurisdiction on the Court with respect to employment and labour relations ......." in order to give effect to Article 162. (2)(a) and (3) mentioned above. The Act provides for the establishment of a Rules Committee with representation from employers' and workers' bodies, ostensibly to harmonise the work of the Court with the realities surrounding the social economics affecting labour and employment.
Interestingly, it is to be found within the Act that, "30. The Cabinet Secretary may make regulations for the better carrying out of the provisions of this Act".
This Court had occasion in July 2013 to examine the well-known and long-running dispute between the Teachers Service Commission TSC and the Kenya National Union of Teachers KNUT in which the latter had called a nationwide strike by its members. Finding that the two antagonists never really meaningfully engaged each other, the Court ordered the two parties "....... to decamp from their hard line positions and proceed to the negotiating table in good faith......."; though it also found the Union to have failed to issue the mandatory 7 day strike notice and consequently declared the strike action illegal. For some curious reasons, the Union had neglected to make an appearance in the case and subsequently advised its members to continue with their industrial action.
The Teachers Service Commission promptly went back to Court "....... seeking leave of the Court to commence contempt proceedings against the Union and its officials for disobeying its orders. The two officials were each fined half a million shillings or serve 30 days in civil jail.
Environment & Land Courts
The Environment and Land Court is a new specialised Superior Court in the Judiciary and whose establishment is anchored in the New Constitution. Excerpts from Article 162.
162. (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) the environment and the use and occupation of, and title to, land.
To give effect to the Article 162. (2) above, the Court was established by an Act of Parliament i.e., The Environment and Land Court Act, 2011. As a specialised superior court having the status of a High Court, its functions and jurisdictions will, according to the provisions in the Act, include but not limited to:
13.(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other written law relating to environment and land.
(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes relating to environment and land, including disputes― (a) relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.
Other than just a brief mention, the New Constitution does not say much else about these Subordinate Courts except to grant Parliament the powers to define the functions, roles and jurisdiction of these courts. Part 3 - Subordinate Courts, Article 169, excerpts:
169. (1) The subordinate courts are— (a) the Magistrates courts;
(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).
Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing electoral petitions for County Assembly seats. The Chief Justice has also been granted by the Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear and determine employment and labour relations (industrial) disputes. Obviously, appeals from these courts would then fall back on the Industrial Court.
Although a Subordinate court, the inclusion of the Kadhi's courts in the New Constitution elicited close debate in the 2010 constitution referendum mainly for the reason that Kenya is a secular state, and Islam is practised by a minority. The major religions felt that this inclusion was unnecessary with some being of the suspicion that it was mischievous, and could impose Muslim law on non-Muslims. They also argued that the expected indirect funding of these courts by non Muslims (through taxation) was unfair to them because they too have historically had well established dispute resolution mechanisms within their religions and which they have funded themselves.
The Constitution is specific about the jurisdiction of this court; Part 3 - Subordinate Courts:
170. (5) The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.
As is the case with magistrate courts, Parliament is granted the power to define the jurisdiction, functions and powers of the Kadhis Courts. MPs (and Senators) professing the Muslim faith will by default be a minority; hence it will be interesting to follow debates and enactment of the laws governing the Kadhis Courts.
Kadhis Courts will be headed by a Chief Kadhi:
170. (1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament.
Persons appointed as Kadhis may or may not be advocates of the High Court but will be sufficiently proficient in Muslim Law and be professed Muslims.
This is a Subordinate Court established by the New Constitution.
169. (1) The subordinate courts are— ........ (c) the Courts Martial; ........
(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).
The legislation referred to above is effected in the detailed Kenya The Kenya Defence Forces Act, 2012, that also numerates the various offences that this particular Court can try - mainly involving serving members of the Forces.
Of particular note is that the Director of Public Prosecution DPP has not been granted any powers over prosecutions in the Courts Martial. Excerpts from Article 157 of Chapter 9 The Executive, Part 4 - Other Offices:
157. (6) The Director of Public Prosecutions shall exercise State powers of prosecution and may — (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) ....... (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) ...... .
However, the Act provides that a convict of this Court can appeal to the High Court and that the DPP can also lodge a similar appeal: The Kenya Defence Forces Act, 2012 Part X: Appeals From Courts Martial:
186. (1) If a person has been convicted by a court martial–– (a) the person convicted may appeal to the High Court and make subsequent appeals to any
other superior court, against the conviction, the sentence, or both; or (b) the Director of Public Prosecutions may appeal to the High Court against the sentence.
(2) If a person has been acquitted of a charge by a court martial, the Director of Public Prosecutions may appeal to the High Court against the acquittal.
As noted elsewhere in this discussion the judiciary in Kenya has for decades operated under the shackles of the executive "where the administrative bureaucracy of the judiciary ........ was, for a long time part of the executive." (Sihanya, 2011). By providing for a fund for the Judiciary, the New Constitution ensures the independence of this arm of government to control its own budget and administer its internal structures and bureaucracy. Chapter 10 Part 4, Article 173:
173. (1) There is established a fund to be known as the Judiciary Fund which shall be administered by the Chief Registrar of the Judiciary.
(2) The Fund shall be used for administrative expenses of the Judiciary and such other purposes as may be necessary for the discharge of the functions of the Judiciary.
The reader is reminded at this point that the salaries and remunerations of Judges are paid from the Consolidated Fund and not from the Judiciary Fund; ostensibly to strengthen their independence.
The Judiciary will originate its estimates and upon approval by the National Assembly will receive the money into its custody. The people of Kenya will determine how that money is spent via legislation enacted by the National Assembly, governing its use. As a money bill, the Senate will not play a direct role in the yearly approval process of the Fund's budget:
(3) Each financial year, the Chief Registrar shall prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval.
(4) On approval of the estimates by the National Assembly, the expenditure of the Judiciary shall be a charge on the Consolidated Fund and the funds shall be paid directly into the Judiciary Fund.
(5) Parliament shall enact legislation to provide for the regulation of the Fund.
However, the Senate will get to play a part in the formulation of legislation governing the Fund as provided by clause (5) above. As an oversight body, it will also review the accounts of the Fund on a yearly basis. The reader will gain a better perspective on the place of this Fund in the larger ecosystem of National Funds by navigating to the Public Finance link.
Once again it is the Judicial Service Act, 2011 that provids for the regulation of the Judiciary Fund.
1. The Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. The Judicial Service Act, 2011. National Council for Law Reporting. The Attorney General.
3. Harbeson, J: How top court can retain and enhance its political legitimacy. Sunday Nation Jan 1 2012. Retrieved 1 Jan 2012.
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6.The Environment and Land Court Act, 2011. National Council for Law Reporting. The Attorney General.
7. Mwangi P, (2001). The Black Bar: Corruption and Political Intrigue within Kenya's Legal Fraternity. Oakland Media Services.
8. Elisha, Ongoya Z (2008). The Law, the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights Litigation in Kenya. Kenya Law Reports, Retrieved April 2012.
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10. Daily Nation advertisement by the Judiciary, March, 2012.
11. Okiya Omtatah Okoiti, 2012 Daily Nation article. "Court Right to Reject the Lynching of Judges." Retrieved 26 November, 2012.
12. Ng'eno, E: "Has 'shambolic' become our collective destiny?" Sunday Nation Opinion Jan 27, 2013. Retrieved 27 Jan 2013.
13. RAILA ODINGA & 2 others v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 others  eKLR. Supreme Court Petition 5 of 2013. National Council for Law Reporting. The Attorney General.
14. RAILA ODINGA & 2 others v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 others  eKLR. Supreme Court Petition 5, 3 & 4 of 2013. National Council for Law Reporting. The Attorney General.
15. The Industrial Court Act, 2011. National Council for Law Reporting. The Attorney General.
16. TEACHERS SERVICE COMMISSION V KENYA NATIONAL UNION OF TEACHERS & ANOTHEReKLR. Industrial Court of Kenya. Petition 23 of 2013. National Council for Law Reporting. The Attorney General.
17. TEACHERS SERVICE COMMISSION V KENYA NATIONAL UNION OF TEACHERS & ANOTHEReKLR. Industrial Court of Kenya. Petition 23 of 2013. National Council for Law Reporting. The Attorney General.
18. The Kenya Defence Forces Act, 2012. National Council for Law Reporting. The Attorney General.
19. Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others  eKLR. National Council for Law Reporting. The Attorney General.
20. "Supreme Court does well in affirming the people's choice for finality of the decisions of the Judges and Magistrates Vetting Board." The Platform. Accessed November 2014.