The role of the judiciary under the constitution: Part I BY YASH PAL GHAI

Before the 2010 constitution
The purpose of this article is to explain constitutional provisions on the nature and role of the judiciary. Next week’s article will examine the successes and failures of the judiciary in fulfilling its constitutional mandate.
The judiciary is one of the three most important institutions of the state, along with the executive and the legislature. In Kenya we have only one judiciary: the counties do not have their own, though an effort is being made to ensure there are courts in every county.
The Kenya judiciary has a heavier responsibility than judiciaries in almost any other country.
The public generally associate the judiciary with deciding cases in disputes among the people or between the people and the state.
But the judiciary (judges and staff) has other important roles, such as ensuring justice is available to all and most importantly, that the constitution is observed by all, most critically the other institutions of the state — with whom it is liable to come in conflict periodically.
As with other parts of the constitution, we can only understand the full significance of its provisions on the judiciary if we are aware of the deficiencies of the judiciary before the constitution. It was widely regarded as both incompetent and corrupt.
Judges often colluded with the police and prosecutors to secure bribes from the accused, and in civil cases, traded with the parties paying the largest sum. They routinely decided cases on instructions from the president and his associates.
At the behest of the government or bribes from the wealthy, the judiciary undermined the rule of law and the protection of the people from blatant injustices. At lower levels, the staff would hide files so cases could not proceed unless they were bribed to restore the file. The public lost confidence in the judiciary.
Organisation of the judiciary under the 2010 constitution
The judiciary consists of judges, magistrates and staff to assist them in their judicial work and in administration. Administration is the responsibility of the Chief Justice, who is also the President of the Supreme Court, assisted by the Chief Registrar.
The CJ is also the chair of the Judicial Service Commission (an independent commission comprising representatives of judges and magistrates, the legal profession, the public, and the Attorney-General) whose major responsibility is to appoint judges and magistrates, discipline them, and, when necessary, initiate the process for their dismissal.
The commission also advises the government on improving the efficiency of the administration of justice. The independence of the commission is marked, among other matters, by the judiciary’s budget being negotiated directly with the National Assembly.
There is a hierarchy among judges and magistrates, depending on which court they sit in — the highest being the Supreme Court and the lowest the Magistrate’s Court. There is a special category of courts for Muslims (who choose it) for disputes on family matters to be resolved under the sharia.
Principles about judges and magistrates
The framers of the constitution saw the cleaning up of the judiciary, and the institution of an honest and competent judiciary, as crucial to the prospects of the new constitution, especially as they were determined that the constitution would restore people’s rights, curb the greed of politicians and public servants, restore democracy, and deal with past injustices.
It aimed first of all to vet all existing judges for integrity and competence, and to ensure that in future judges and magistrates were appointed by a Judicial Service Commission through a totally independent process.
The qualifications for appointment at different levels were prescribed to ensure that only suitable candidates (including from outside Kenya) were appointed, unlike in the past where the president and Attorney-General played a key role.
Judges were guaranteed security of tenure and of their salaries and benefitsto encourage them to make fair decisions, without fear of consequences to their career.
Principles in the discharge of judicial functions were carefully defined, including that justice would be done to all, regardless of status; justice would not be delayed and would be administered without undue regard to procedural technicalities, facilitate other forms of dispute settlement — and most important of all, the purpose and principles of the constitution would be protected and promoted.
Jurisdiction of courts
The judiciary is one of the three principal arms of the state, along with the executive and the legislature. There has been much discussion about how the three institutions relate to each other.
Both the executive and the legislature have argued, on the principle of the separation of powers, that the courts cannot question the acts of the other two. They are not right, as the constitution expressly gives the judiciary complete jurisdiction to interpret all provisions of the constitution and to provide a remedy for breach (Article 258).
Another aspect of jurisdiction is that anyone can approach the court to seek a ruling by the court, even if her own personal interests are not involved. This shows the importance attached to both the people and the judges in upholding the constitution.
Apart from this general jurisdiction, the constitution confers special authority in respect of some key issues. For example when a state of emergency is declared by the government, the Supreme Court has to decide whether it is valid (Article 58).
Court can give broad orders and remedies in cases of environmental damage (Article 70). The courts play a critical role in the electoral process, including on the delimitation of electoral units, settling of electoral disputes, and importantly, on the election of the president.
The courts play a key role in deciding on the validity of laws, particularly with regard to compatibility with the constitution. Disputes such as those between senators and governors or the two houses of Parliament are generally resolved by the courts.
Disputes between the national and county governments however, are supposed to go through a special dispute resolution process before going to court.
Interpreting the constitution
Another important (and unusual) aspect of the jurisdiction is that the constitution sets out rules for its interpretation. In the case of the Bill of Rights, the court must adopt the interpretation that “most favours the enforcement of a right or freedom”.
The court must promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom as well as the spirit and objects of the Bill of Rights. Article 259 requires the courts to interpret the constitution in a way that promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance.
So the judicial task is not a mechanical one, nor do the judges have to worry whether to adopt a liberal or conservative approach (which constantly worries the US Supreme Court!).
We should realise both how central and how difficult the judicial function is — and how critically important it is to the protection and development of the constitution. However, a court cannot on its own start on interpretation or judicial orders —someone has to bring a case to court.
Unlike other organs of the state, the courts have to give ample opportunity to the parties in the case to present their arguments and to question those of their opponents.
When giving judgement, the judge has to give reasons, addressing the arguments of both sides. And in most instances, the decision can be challenged in a superior court.
The many significant innovations and reforms, and relapses, introduced since 2010 will be discussed next week.


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