THE JUDICIARY UNDER THE NEW KENYAN CONSTITUTION


The general elections held in Kenya in December, 2007, were determined by international observers to be rigged in favour of the incumbent, President Mwai Kibaki. There was a large scale eruption of violence in which over 1,000 persons were killed. Yet the opposition, the Orange Democratic Movement, led by Raila Odinga, now the Prime Minister under a post-elections agreement brokered by Kofi Annan, former Secretary General of the United Nations, had refused to take court proceedings. The opposition alleged that the courts had long been subverted by the governing party which had been in power since 1963. They could, therefore, not be relied upon to give a fair decision even on the massive evidence of rigging which had been exposed.
 

The Judiciary was therefore a prime target for reform under the new constitution which had been prepared pursuant to the Kofi Annan agreement. The draft constitution was approved by the National Assembly in April and approved overwhelmingly in a referendum in August after amendments prompted by national discourse. 
 
There are provisions providing for the establishment of the courts, the basic principles which should guide them, alternative disputes resolution and traditional disputes resolution.
 
The main judicial offices are the Chief Justice, the Deputy Chief Justice and the Chief Registrar and the main courts are the Supreme Court, the Court of Appeal and the High Court.
The Supreme Court consists of the Chief Justice, the Deputy Chief Justice and five other judges. It is constituted by five judges. Its main functions are to determine disputes arising from the election of the President, appeals from the Court of Appeal and from any other court as may be prescribed by law. Appeals from the Court of Appeal to the Supreme Court are as of right in matters relating to the interpretation of the constitution or in any other case of general public importance as determined by the Court of Appeal or the Supreme Court. 
 
The size, organization and administration of the Court of Appeal are to be determined by an Act of Parliament but it shall consist of not less than twelve judges who shall elect a President of the Court of Appeal from among themselves, an innovative provision introducing a democratic element not normally found in Westminster type constitutions. The Court of Appeal has jurisdiction to hear appeals from the High Court and from any other court prescribed by law.
 
The High Court is similarly constituted as the Court of Appeal but the number of judges is not fixed by the Constitution but by the Act of Parliament which would constitute the High Court. It has unlimited jurisdiction over civil and criminal matters, including constitutional matters and supervisory jurisdiction over subordinate courts, bodies and persons.
 
The Chief Justice and Deputy Chief Justice are appointed by the President in accordance with the advice of the Judicial Service Commission and with the approval of the National Assembly and all other judges in accordance with the advice of the Judicial Service Commission.
The retirement age of a Judge is fixed at seventy years. However, the Chief Justice can hold office only for a maximum of ten years. If his term of office expires before he reaches that age of seventy, he can continue to serve as a Judge of the Supreme Court. This limit on the term of the Chief Justice ensures that all powerful judicial authorities are not entrenched in the judicial system for extraordinary long periods of time where, for example, they attain the office at a relatively young age. This would help to prevent the abuses of the past. 
 
There are extensive provisions for the removal of Judges for reasons which include a breach of a code of conduct prescribed by an Act of Parliament for Judges, incompetence or gross misconduct or misbehavior. 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. If satisfied that a ground exists it sends the petition to the President who appoints a tribunal constituted in such a way that insulates it from influence of any sort. A Judge may appeal the findings of a tribunal if s/he is dissatisfied with it. 
 
Subordinate courts, including Magistrates’ courts and Khadis’ courts are also provided for. Khadis’ courts are muslim courts, limited to issues relating to marriage, inheritance and other such issues.       
The most interesting provision is that which provides for the constitution of the Judicial Service Commission. It is almost wholly elective. It consists of the Chief Justice, who is the Chair; one Supreme Court Judge elected by Judges of that Court; one Court of Appeal Judge elected by Judges of that Court; one High Court Judge and one magistrate, one a man and one a woman, elected by members of the association of Judges and magistrates; the Attorney General; two advocates, one a man and one a woman, each of fifteen years experience, elected by members of the statutory body responsible for the professional regulation of advocates; one person nominated by the Public Service Commission; and one man and one woman to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
 
It is hardly possible to constitute a Judicial Service Commission that would be more independent. And it is hardly possible to have constructed a judicial system that, with goodwill, could be more insulated from political interference. (www.conversationtree.gy).

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