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).