Roles & Functions
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)
