The Independence of the Judiciary exists Primarily as a rhetorical notion rather than as a subject of sustained and Organized study.
The Independence of the Kenyan Judiciary has improved tremendously for the last 60 years with the birth of the 2010 constitution catapulting Judiciary to its current day fame and trust among Kenyans.
The independence of the judiciary is a logical corollary of the principle of separation of powers in that the vesting of judicial functions in a body of persons separate from the executive and the legislature.
The main goal of Judiciary Independence has been to enhance access to Justice to all Kenyans.
In 1963, Judiciary was perceived as favoring colonial interests at the expense of the indigenous Kenyans.
This notion among Kenyans persisted between 1963 to 1990 after which the Government of the day initiated a comprehensive justice program.
Between 1990 and 2009 the Government began a governance program called the Governance, Justice, Law and Order Sector (GJLOS) which recognized Justice and Legal sector reforms for economic recovery.
However, it was not until the 27th of August 2010 that the new Kenyan constitution gave meaning to the real Independence of the Judiciary.
The enactment of the 2010 Constitution positioned the Judiciary as an independent and effective guardian of the rule of law.
The Constitution significantly restructured the Judiciary, introducing measures to enhance its independence, accountability, and transparency.
The 2010 Constitution established the Judicial Service Commission as an Independent body responsible for promoting accountability and Independence of the Judiciary.
Access to Justice through installing High Court stations in various Counties
The Judiciary has so far installed High Court in 41 Counties out of the total 47 Counties. Further, the Judiciary has also established High Court Sub-Registry in five other Counties.
The Judiciary has also established 127 Magistrate Court Stations across the Country since independence in 1963.
In contrast to the pre-2010 era, when there was only one permanent Court of Appeal bench based in Nairobi, currently, the Court of Appeal has been decentralized to various regions, with other permanent benches in Kisumu, Nakuru, Nyeri, and Mombasa.
In 2012 the then Chief Justice of Kenya Willy Mutunga announced the setting of Mobile Court, a speech that saw the Judiciary establish 51 mobile courts, with most of them serving the arid and semi-arid parts of the country.
In 2022 the Judiciary created tailor-made courts such as the Small Claims Courts, the Sexual and Gender-Based Violence (SGBV) Courts, and the Children’s Court.
In June 2020 the Judiciary rolled out the E-filing system across the country, with 11 counties already using the system.
Executive Usurpation To Judiciary Independence
Despite all these achievements, at times the Independence judgments and rulings did put the Judiciary a simmering conflict between the former Kenyan President Uhuru Kenyatta and the country’s judiciary over the supremacy of the constitution which at times could burst into the open.
In 2017, the then Chief Justice of the Republic of Kenya David Maraga led the Supreme Court Judges to nullify Kenyatta’s victory in the 2017 General election citing irregularities during and after the Elections.
The Supreme Court’s decision was never accommodated by the then regime led by Kenyatta who promised to ‘revisit’ the Judiciary.
He actually made his threats real by slashing the Judiciary budget by Sh 3 billion making it impossible for the Judiciary to compete with various court stations across the country.
This battle was precipitated by the president’s attempt to usurp the powers of the Judicial Service Commission (JSC) to pick judges and judicial officers for the country’s courts.
The former president for two years, claimed secret adverse findings against Judges by intelligence services, as a result, Kenyatta refused to formally appoint 41 Judges selected by the JSC to fill various posts including in the Court of Appeal.
This was in defiance of the constitution, which afforded him no discretion in the matter, and numerous court rulings affirming that.
He later on partly complied, by appointing 34 of them, but petulantly continuing to block six others.
His stance was roundly condemned by civil society groups, parliamentarians and even the former chief justice, Dr. Willy Mutunga, who penned a scathing letter accusing Kenyatta of being “garlanded in the pettiness of performing power” and betraying his official oath.
President Kenyatta was known for butting heads with the judiciary which, especially since the promulgation of the constitution in 2010 become much more assertive in demanding compliance with the law from the political class.
