Independent Judiciary vital for devolution to thrive

Friday, November 29th, 2019 00:00 |

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Jacqueline Mogeni 

Former US Chief Justice John Rutledge once said “so long as we have an independent Judiciary, the great interests of the people will be safe”. At the heart of democratic governance is the independence of the Judiciary. 

Our Constitution recognises this by stating in Article 160 that the exercise of judicial authority shall not be subject to the control or direction of any person or authority.

Judicial independence means judges, magistrates and all the other quasi-judicial officers are free to make decisions on matters before them without external influences.  

On this premise, the Judiciary is the one arm of government that should be insulated against all forms of coercion, duress, threats and harassment because once its independence is compromised, the rule of law becomes muted and the country subsequently slides into anarchy. At that point, in the words of Thomas Hobbes, life becomes nasty, brutish and short.

Consequently, a key factor that will determine the survival of the devolved system of governance is the Judiciary. Over the last six years since its inception, the courts have heard and determined many cases on matters related to devolution.

The High Court declaration that the Constituency Development Fund (CDF) was unconstitutional and infringed on the objects and principles of devolution, compelled Parliament to rethink the management —and the name—of the fund. 

In another petition, the court ruled that in all regulatory development processes touching on the functions and powers of county governments, the devolved units must be consulted.

The court emphasised that consultation should not be cosmetic simply because government ministries want to comply with the Constitution, but consultation must be meaningful and qualitative. 

When the Senate attempted to meddle with the legislative authority of County Assemblies, the courts were quick to reprimand the former by pronouncing the House has no powers to interfere with the legislative processes at the county level. Earlier this month, the High Court quashed the Guidelines on Administration of the Equalisation Fund, owing to their unconstitutionality.  

Indeed, the importance of the Judiciary in upholding the constitutional principles that anchor devolution cannot be sufficiently underscored.

It bears noting, therefore, that we need a strong, independent and well-resourced judicial system as a vital ingredient for the existence of devolution.

Since its inception  in 2013, devolution has faced one main challenge—the persistent blatant attempts to recentralise devolved functions through unconstitutional and controversial policies, legislations and administrative actions. 

As illustrated in the aforementioned decisions, the courts have on several occasions declared certain laws unconstitutional because of their non-conformity with devolution principles.

This renders the Judiciary a safe haven for devolution. It follows then that when judicial independence is threatened by the other arms of government, devolution is at risk. 

Moreover, where Judiciary budget is slashed, justice becomes out of reach. Some counties have established successful partnerships with the Judiciary whereby the counties provide land  for the Judiciary to construct courts.

If the Judiciary cannot expand its courts, then Kenyans’ constitutional right to access justice becomes curtailed. 

Inevitably, all State organs, public officers and all persons must, as a constitutional duty, seek to protect the independence of the Judiciary. Any action, whether direct or indirect, that undermines this independence should attract a lot of contempt from the public at large. 

When judges and other judicial officers take their oath to dispense justice without any fear, favour, bias, affection, ill-will, prejudice or any political, religious or other influence, we , as citizens, should take that oath with them. This is because the Constitution is deliberate that all sovereign power belongs to the people of Kenya, and this power is then delegated to State organs. 

Judicial independence is a hallmark our constitutional democracy.Without a strong judicial system, the consequences are dire—impunity will reign. —The writer is an Advocate of the High Court of Kenya

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