NEW LIBERTARIAN CONSTITUTIONALISM IN KENYA EXEMPLIFIED IN JUDICIAL INDEPENDENCE

NEW LIBERTARIAN CONSTITUTIONALISM IN KENYA EXEMPLIFIED IN JUDICIAL INDEPENDENCE

NEW LIBERTARIAN CONSTITUTIONALISM IN KENYAEXEMPLIFIED IN JUDICIAL INDEPENDENCE

Kiboyye Okoth-Yogo1

ABSTRACTThe judiciary, alongside the legislature and the executive, is one of the three branchesof government. Its basis, alongside the other arms of government is the doctrine ofchecks and balances, founded on separation of powers, limitation of powers and publicspace in governance. All these three are a fundamental guarantee of the independenceof the judiciary. The Kenyan constitution, and the rule of law in its entirety, entail that itbe independent from the other branches of government. This article examines judicialindependence and the aspects which define it. It traces the Kenya judicial foundations in thevestiges of colonial edifice. The current constitutional provisions are also analyzed.. This paper isjustified on the rationale that the need to come to grips with adequate philosophical interrogation ofthe rationale for judicial independence is crucial, so is a conceptual model that will help, to articulatepolicies and discern pertinent response mechanisms.

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INRODUCTIONRight from the first chapter of the constitution of Kenya, thejudiciary is envisaged. It provides that sovereign power isdelegated to Parliament and the legislative assemblies in thecounty governments, the national executive and the executivestructures in the county governments and the Judiciary andindependent tribunals.2 The judiciary is that branch of thegovernment endowed with the authority and the onus of clarifyingand employing the laws of the country, in given relevantinstances, to try issues conclusively on the questions of civil,criminal, administrative or admiralty nature. Due to theforegoing roles, the judiciary is designated as the sentinel ofjustice. It is the epitome of the impartiality and fair dealingtouching on the exertion of power, the guardianship of legal

1 This paper is part of the author’s administrative law lecture series at the Moi University’s school of Arts & Social Sciences.2 The Constitution of Kenya, Article 1(3)

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rights and the enforcement of duty.3 The Court decisions doaffect the society in general through the establishment ofprecedence.4 The courts helps in preventing anarchy, are socialagencies of peace, restore and maintain social equilibrium, areadjusters of the law, and are educators. ‘Once people know howthe courts interpret and apply the law, they are able to foreseethe consequences of their individual or collective conduct.’5

Judicial authority is derived from the people and vests in, andis exercised by, the courts and tribunals.6 In the exercise ofthe authority, the judiciary is only subject to the constitutionand the law and is not subject to the control or direction of anyother authority.7 So the grounding philosophies are utmostintegrity in judicial service and judicial independence.

The justification of judicial authority is that for law to beeffectual it must find expression through some adjudicationmechanism that is the focal point for members of the public,administrative agencies, alternative disputes resolutiontribunals, the penal and correctional systems, among others. Itis the duty of the state to pass necessary laws and to administerthem fairly and effectively by establishing adequate structuresand processes. The presence of the courts is premised on the ruleof law exemplified by constitutionalism, legal validity andequality before the law. These are essential to the collectivehallmarks underlying a democracy, as opposed to arbitrariness andimpunity. The constitution and the statutes have established thecourt system. They have also provided for intra-administrativequasi-judicial mechanisms for dealing with administrative issues;however, these take explicit cognizance of the judiciary.

In Kenya, like in myriad democracies the essence of the judiciaryis encapsulated in the doctrine of checks and balances that

3 Kuloba Richard (1997) Courts of Justice in Kenya. [Nairobi: Oxford University Press] p. 14 Ibid. p. 55 Ibid.6 The Constitution of Kenya, Article 159. (1) 7 The Constitution of Kenya , Article 160. (1).

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encompasses not only the notion of government of limited andseparated powers but also subject to popular will and backstoppedby peoples sovereignty as discussed herein before. Theseparateness of the roles of the executive, legislature, andjudiciary, alongside the constitutional devolution and publicparticipation is integral to the establishment of a functioningdemocracy and the rule of law as opposed to despotism, self-helpand arbitrariness. Justice must be done to all, irrespective ofstatus and should never be delayed. Further to the foregoing,procedural technicalities should not be used to hinder justice.8

The system gives room for alternative forms of dispute resolutionincluding reconciliation, mediation, arbitration and traditionaldispute resolution mechanisms. The advancement of the traditionalmodes of justice is encouraged as long as they do not contravenethe bill of rights, repugnant to justice morality andinconsistent with the constitution or any other written law.9

Exemplification of Judicial IndependenceIn Order to ascertain that the Courts are capable of holding ontheir own under the separateness and limited powers paradigm, theofficers are clothed with constitutional powers that should neverbe impeded. An effective and independent judiciary is a vitalcondition for impartial and reliable dispensation of justice.Judges have the definitive task for determinations concerningfreedoms, rights and duties of persons in their jurisdiction.10

The independence of each individual judge is crucial in upholdingevery person’s right to have their case determined exclusively onlaw and fact. Decisions should not be altered external from theappeals process. Further to the foregoing, Employment and careerof judges should be founded on merit. One of the most importantstandards underpinning the autonomy of the judiciary is securityof tenure. Security of tenure of judges, together with insistenceon meritorious transfers and sufficient compensation commensuratewith the decorum of the office are some of the factors that8 Constitution of Kenya, Article 159. (2) 9 Constitution of Kenya, Article 159. (3) 10 Wrzecionkowski Mikolaj(January 2012). Judicial Independence. http://www.legislationline.org/topics/topic/9#

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comprise the foundation of legitimated independence.Additionally, it is important to strike the appropriate balancebetween judges’ accountability and their independence insettlement of issues in court. Reasons for disciplining of judgesshould not include the substance of their verdicts or to judicialmistakes. Also, the body that commences cases of judicialdiscipline should not be the one that pass judgment on them. Itis also important that Procedural safeguards and disciplinaryhearings are crystal clear.

First, as we have discussed herein above, the Judiciary can onlybe subject to the Constitution and the law and is not subject tothe control or direction of any person or authority.11 In the2011 Omar Al Bashir case, the International Commission of Jurist(ICJ) moved the High Court to compel the executive arm of thegovernment to arrest the Sudanese President in compliance withthe Rome Statute and the Constitution. The International CriminalCourt (ICC) had charged him with committing genocide in Darfurwhich is part of Sudan. Justice Ombija ruled in favour of the ICJholding that Kenya is a signatory to the Rome Statute hence wasobliged to arrest Bashir should he step into Kenya. The Ministerfor Foreign Affair did not take the judgment kindly and arguedpublicly that the court was blind to other factors like security,economic and other multi-lateral matrix.12 Bryan Khaemba, arguingin support of the judgment asserted that the core rules in thecase are found in the Rome Statute which lifts diplomaticimmunity of heads of states as envisaged under article 22 of theVienna Convention on Diplomatic Immunity of Heads of States.13

Secondly, the office of a judge of a superior court cannot beabolished while there is a substantive holder of theoffice.14Thirdly to assert a legitimate level of financialautonomy, the remuneration and benefits payable to or in respectof judges is charged directly on the Consolidated Fund.15

11 Article 160. (1) of the Constitution of Kenya12 Khaemba Brian (2011). The Law Must not be an Instrument of State in Bashir Ruling. In the Standard, of 20th of December. Kenya. p. 1513 Ibid.14 Article 160. (2) of the Constitution of Kenyaene15 Article 160. (3) of the Constitution of Kenya

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Fourthly, the remuneration and benefits payable to, or in respectof, a judge cannot be varied to the disadvantage of that judge,and the retirement benefits of a retired judge can not be variedto the disadvantage of the retired judge during thelifetime.16Lastly, a member of the Judiciary is not liable in anaction or suit in respect of anything done or omitted to be donein good faith in the lawful performance of a judicial function.

HistoryOne question is whether the history of the judiciary in Kenya,from the colonial to the present shows a substantial passage fromsubjugation to a libertarian paradigm. The history of Kenya’sJudiciary can be traced to the East African Order in Council of1897 and the Crown regulations made there under which marked thebeginning of a legal system in Kenya. It was founded on atripartite division of subordinate courts; that is, Nativecourts, Muslim courts and those staffed by Administrativeofficers and Magistrates. A twofold arrangement of superiorcourts was also established, one court for Europeans and theother for Africans. This system only lasted for 5 years. Onrationalisation by the colonial authorities of the need for aresidual dispute resolution system that was managed by thenatives, they set up organs where, village elders, headmen andchiefs were empowered to settle disputes as they had done in thepre-colonial period. This was as long as such processes did notoffend the British sensibilities. Secondly, they had to be underclose scrutiny by the administration. These traditional disputesettlement organs gradually evolved into tribunals. They wereaccorded official recognition in 1907 when the Native CourtsOrdinance was promulgated. This ordinance provided for nativetribunals that were anticipated to serve each of the ethnicgroups in Kenya. The chief Native Commissioner was authorized toset up, control and administer the tribunals. The ordinance alsoestablished similar tribunals at the divisional level of eachdistrict and also authorized the governor to appoint a Liwali atthe Coast to adjudicate over matters between the MuslimCommunity. One could appeal against the decisions of these16 Article 160. (4) of the Constitution of Kenya

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tribunals to the D.O and or D.C and finally to the PC. The finalappeal lay with the Supreme Court.

The Native Appeals Tribunal’s ordinance 1930 reduced the numberof elders sitting on a tribunal and also made it a requirementthat a literate member records the proceedings. By 1950 thesetribunals had evolved sufficiently for them to be converted intocourts similar to those that hitherto served non-Africans. In1950 the African Courts Ordinance abolished the Tribunals andreplaced then with African Courts.

In dispensing justice under the relevant English and Indian lawswhere non-Africans were concerned, the administration of justicewas entrusted to expatriate judges and magistrates. Appeals layfrom subordinate courts to the Supreme Court. The head of thesystem was the Chief Justice while the administrative duties werecarried out by the Registrar of the Supreme court. The maincourts were established at the large urban centres such asNairobi, Mombasa and Kisumu. Judges and magistrates on circuitserved other centres

Muslim courts were headed by a chief Kadhi and were classified assubordinate courts. As such, appeals from Islamic courts lay tothe Supreme Court.

The segregated system of administering justice prevailed until1962 when the African Courts were transferred from the provincialadministration to the Judiciary. Further, it was not until 1963when the independence Constitution provided for something akin toan independent and impartial Judiciary. The IndependenceConstitution provided for a Supreme Court with unlimited originalcriminal and civil jurisdiction over all persons, regardless ofracial or ethnic considerations. The judges were appointed by anindependent judicial service commission. The Constitution furtherprovided for the establishment of a court of appeal and theKadhi’s court. When Kenya attained the status of a republic in1964, the Supreme Court was renamed the High Court. To steamlinethe administration of justice, three major laws were enacted in1967. These were the Judicature Act (Chapter 8), the Magistrates’6 | P a g e


Courts Act (Chapter 10) and the Kadhis Courts Act (Chapter 11).However, the lack of local lawyers who could man the courts, thereliance on foreign judges often hired on contracts, combinedwith an overbearing executive combined to undermine theindependence of the judiciary.

Originally, the three East African Countries of Kenya Uganda andTanzania shared one Court of Appeal. With the collapse of theEast African Community in 1977, the Kenyan National Assemblyamended the Constitution by inserting the provision for the Courtof Appeal of Kenya.17 The Parliament also enacted the AppellateJurisdiction Act which spells out the jurisdiction of the Court,among other things.18The revival of the East African Communitywhich today includes Rwanda and Burundi has not seen the revivalof the East African Court of Appeal, but rather the East AfricanCourt of Justice with the mandate to apply the treaty laws.

In 1988, the parliament amended section 62 of the constitutionthereby repealing the security of tenure of judges and the PublicService Commission.19This definitely undermined the independenceof the Judiciary. However, this was reversed by the 1990amendment20 which reinstated the security of tenure for judges,the Attorney General and the Controller and Auditor General.21

One of the first things that the Kibaki administration did ontaking over power in 2002 was to embark on what was called a"radical surgery of the judiciary". The new Chief Justiceimplemented unprecedented “radical judicial surgery” recommendingthat half the purportedly-corrupt judiciary should be removed byPresidential tribunals of inquiry.22 The 2003 Ringera JudiciaryReport was a Kenya Government report published by the Integrity andAnti-Corruption Committee of the Judiciary in Kenya in order to implement a

17 The Constitution of Kenya Amendment Act No. 13 of 197718 Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya.19 Constitution of Kenya (Amendment) Act NO 4 OF 1988.20 The Constitution of Kenya Amendment Act No. 17 of 1990.21 See also Onalo P.L. Agweli (2004). Constitution Making in Kenya. Nairobi: Trans Africa Press.22 Khamala, Charles A. (2012-10). Judicial Radical Surgery in Kenya: Beyond Independence and Accountability. URI: http://ir.kabarak.ac.ke/handle/123456789/2687 | P a g e

http://ir.kabarak.ac.ke/handle/123456789/268


policy known as radical surgery introduced by the new government ofPresident Mwai Kibaki. The committee was led by Justice AaronRingera. From the report 5 of 9 Court of Appeal Justices, 18 of36 High Court Judges and 82 out of 254 Magistrates wereimplicated as corrupt.23 A two-week ultimatum to either resign orbe dismissed was issued to these Justices and Magistrates.Several resigned or “retired”, while some mounted legalchallenges against their dismissals. Tribunals to hear thesecases then begun. Several high court judges opted for earlyretirement rather than face a tribunal to investigate theirconduct. Some of these were innocent and the country lost somegood judges. But a good number also opted to face the tribunal.Justice Philip Waki was acquitted in late 2004. By the thirdacquitaal of Justice Daniel Aganyanya it had become evident,especially that the whole exercise seems to have achieved verylittle indeed. The tribunal is yet to find any judge guilty ofany wrongdoing. Those who launched the campaign seem to haveforgotten that even if you know for sure that somebody is guiltyof corruption, you still have to prove the whole thing. And proofwas what was lacking in all the cases. That is the sort of proofthat can stand up to legal scrutiny. There is also a feelingamong many analysts and observers that enthusiasm to fightcorruption quickly fizzled out as many of the previouslyprincipled key government figures started enjoying the trappingsof power. Ultimately, the High Court declared the “radicalsurgery” illegal.24

With the promulgation of a new constitution, a fresh judicialstructure has been put place and that is basically the subject ofthis paper It provides for vetting of all judges and magistratesto establish their suitability for office. That vetting has beenvery controversial but is seen as a price to pay so that realchange in the judiciary can be effected.

JURISDICTIONS

23 http://www.icj-kenya.org/index.php/media-centre/press-releases/221-summary-of-issues-to-be-highlighted-in-icj-mission-report-for-release-to-the-press24 Khamala, 2012.

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http://www.icj-kenya.org/index.php/media-centre/press-releases/221-summary-of-issues-to-be-highlighted-in-icj-mission-report-for-release-to-the-press

http://www.icj-kenya.org/index.php/media-centre/press-releases/221-summary-of-issues-to-be-highlighted-in-icj-mission-report-for-release-to-the-press


It is also important to note that the courts operatejurisdictionally. Jurisdiction refers to ‘the competence to hearand decide a case or make a certain order’. The jurisdiction of acourt therefore means the competence of a court to hear anddecide a case or make a certain order’. The jurisdiction of acourt may be unlimited or it may be limited tohearing/entertaining particular matters. A court may exercise anyof the following jurisdictions.

Original jurisdictionThis refers to the competence of a court to hear and decide acase or make a certain order at first instance (for the firsttime). This is normally the court in which a fresh case is filedfor hearing. Subordinate courts normally have jurisdiction tohear cases on the first instance. However first instance isusually qualified. Each court has jurisdiction to hear contemptproceedings on first instance. The Supreme Court is the only onethat can hear presidential election petition on first instance.The magistrates courts has original jurisdiction to hear allcriminal offences except for murder. They can hear civil cases,however this depends on pecuniary jurisdiction.

Appellate jurisdictionThis refers to the legal competence of a court to hear and decidea case or make a certain order on appeals from other courts. Somecourts exercise both original and appellate jurisdiction. TheHigh Court hears appeals from the lower courts. The court ofappeal hears appeals from the high court and tribunals withsimilar level as the high court. Supreme Court entertains appealsfrom the Court of Appeal

Civil jurisdictionThe competence of a court to hear and decide a case or make acertain order on cases of civil nature. Some courts exercisecivil jurisdiction only.

Criminal jurisdiction

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The competence of a court to hear and decide a case or make acertain order on criminal cases. Some courts exercise both civiland criminal jurisdiction.

Pecuniary jurisdiction The competence of a court to hear and decide a case or make acertain order on cases of civil nature involving certain amountof money. Some courts have limited pecuniary jurisdiction whileothers have unlimited pecuniary jurisdiction.

Territorial jurisdictionThe competence of a court to hear and decide a case or make acertain order on cases from certain geographical areas only. Somecourts have limited territorial jurisdiction, whereas others haveunlimited jurisdiction.

Supervisory jurisdiction The ability or power conferred on a court by law to supervisethe conduct of cases in other courts.

Admiralty jurisdictionThe competence of a court to hear and decide a case or make acertain order on all matters arises on the high seas or interritorial waters or upon any lake or other navigable inlandwaters.

Exclusive jurisdictionThe competence of a court to hear and decide a case or make acertain order on certain cases to the exclusion of any othercourt.

Special jurisdiction The ability or power conferred on a court by law to hear certainspecific/special matters.

Inherent jurisdiction: The competence of a court to hear anddecide a case or make a certain order on a case even where there

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is no specific legal provision. In such case the court decidesthe case according to justice and general principles of law.

It should also be noted that these terminologies are sometimesused in combination to reflect the jurisdiction of a particularcourt e.g. ‘pecuniary civil jurisdiction of a magistrate’scourt’.

SYSTEM OF COURTSAs Lowi and Ginsberg aptly captures, “originally a court was theplace where the sovereign ruled. Settling disputes betweencitizens was part of governing”.25 Whether one is talking aboutthe Western feudal monarchs, or the oriental King Solomonapplying his great wisdom or the Asantehene of the Asante inWestern Africa, the assertion is fairly descriptive of thehistory of court systems globally. Slowly, court systems evolvedtowards separating dispute settlement regime from the other armsof government.

Today in Kenya, the Judiciary consists of the judges of thesuperior courts, magistrates, other judicial officers andstaff.26 Judges and magistrates preside over judge made law andstatutory law. There is established the office of Chief Justice,who is the Head of the Judiciary, Deputy Chief Justice, who isthe Deputy Head of the Judiciary and Chief Registrar of theJudiciary, who is the chief administrator and accounting officerof the Judiciary.27 The Judicial Service Commission may establishother offices of registrar as may be necessary.28

The superior courts are the Supreme Court, the Court of Appeal,the High Court and the courts29 established by parliament with the status of the High Court tohear and determine disputes relating to employment and labour25 Lowi Theodore & Ginsberge Benjamin (1994) American Government: Freedom and Power. New York & London:W.W.W. Norton & Company. p. 31226 Constitution of Kenya, Article 161. (1)27 Constitution of Kenya, Article 161. (2)28 Constitution of Kenya, Article 161. (3)29Constitution of Kenya, Article 162. (1)

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relations, the environment and the use and occupation of, andtitle to, land.30 The subordinate courts are the courtsestablished by parliament.

Supreme CourtSupreme Court31 consists of the Chief Justice, who is thepresident of the court, the Deputy Chief Justice, who not onlydeputise for the Chief Justice but is also the vice-president ofthe court and five other judges.32The Supreme Court is properlyconstituted for the purposes of its proceedings if it is composedof five judges.33It has exclusive original jurisdiction to hearand determine disputes relating to the elections to the office ofPresident arising under and appellate jurisdiction to hear anddetermine appeals from the Court of Appeal and any other court ortribunal as prescribed by national legislation.34 Appeals liefrom the Court of Appeal to the Supreme Court as of right in anycase involving the interpretation or application of theConstitution and in any other case in which the Supreme Court, orthe Court of Appeal, certifies that a matter of general publicimportance is involved.35

The Court may also give an advisory opinion at the request of theNational government, any State organ, or any county governmentwith respect to any matter concerning county government.36Furtherto the foregoing, all courts, other than the Supreme Court, arebound by the decisions of the Supreme Court.37

Court of Appeal30 Constitution of Kenya, Article 162. (2)31 Constitution of Kenya, Article Article 163 (8) & (9) provides that “the Supreme Court shallmake rules for the exercise of its jurisdiction, and an Act of Parliament may make furtherprovision for the operation of the Supreme Court”, respectively.32 Constitution of Kenya, Article 163. (1)33 Constitution of Kenya, Article 163. (2)34 Constitution of Kenya, Article 163. (3)35 Constitution of Kenya, Article Artilce 163 (5) provides that “A certification by the Court ofAppeal under clause (4) may be reviewed by the Supreme Court, and either affirmed, varied oroverturned.36 Constitution of Kenya, Article Artilce 163. (6)37 Constitution of Kenya, Article 163. (7)

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The Court of Appeal which is a superior court of record, thoughlacking in inherent jurisdiction. It has jurisdiction to hearappeals from the High Court and any other court or tribunal asprescribed by an Act of Parliament, though it has exercisedoriginal jurisdiction in cases of Contempt of Court targeting it.38

The Court consists of the number of judges, being not fewer thantwelve, as may be prescribed by an Act of Parliament and isorganised and administered in the manner prescribed by an Act ofParliament.39It is headed by a president of the Court of Appealwho is elected by the judges of the Court from amongthemselves.40

The Appellate Jurisdiction Act (Cap. 9) empowers the court tohear and determine appeals from the High Court in cases in whichan appeal lies to the Court of Appeal under any law. The CriminalProcedure code (Cap. 75) provides that if the High Court hasheard a criminal case on appeals from a lower court, a furtherappeal can be made to the Court of Appeal by either the Attorney–General or the defendant, on a matter of law only. On Civilmatters, the Court can entertain appeals of original civil decreeor order of the High Court. Further to the foregoing, appealsfrom cases that emanates from High Court appeals can beentertained as long such decisions are contrary to law, failureof the decision to determine some material issue of law, and asubstantial procedural defect.41

However, the Court of Appeal cannot hear an appeal on matter offact. It does not have original jurisdiction or inherentjurisdiction.

High Court

38 The case of R versus Tony Gachoka of 1999 at the Court of Appeal of Kenya39 Constitution of Kenya, Article 164. (1)40 Constitution of Kenya, Article 164. (2)41 Provisions of the Section 66 of the Civil Procedure Act, Chapter23 of the Laws of Kenya, asparaphrased from Tudor Jackson, 1988. p. 3913 | P a g e


The High Court is a superior court of record which means that itsjudgments can be cited in other subsequent cases as bindingauthority. It also enjoys inherent jurisdiction. This means thatit has power to hear a case even where there is no specificprovision of law conferring on any court a certain jurisdiction.It consists of the number of judges prescribed by an Act ofParliament and organised and administered in the mannerprescribed by an Act of Parliament.42It is headed by a PrincipalJudge of the High Court elected by the judges of the High Courtfrom among themselves.

One judge normally hears cases. However, appeal cases be heardby two or more judges. In criminal cases judges sit with the aidof assessors who give their opinions as to whether the accused isguilty of not although the judge is not bound by such opinion.The court has registries indifferent towns in Kenya e.g. Mombasa,Nairobi, Kisumu, Nakuru Bungoma, etc and therefore also sits inthose towns.

Except for the issues that are constitutionally reserved for theSupreme Court’s Jurisdiction, the High Court has unlimitedoriginal jurisdiction in criminal and civil matters, to determinethe question whether a right or fundamental freedom in the Billof Rights has been denied, violated, infringed or threatened andto hear an appeal from a decision of a tribunal appointed underthis Constitution to consider the removal of a person fromoffice.43 It also has jurisdiction to hear any questionrespecting the interpretation of the Constitution including thedetermination of the question whether any law is inconsistentwith or in contravention of the Constitution. The questionwhether anything said to be done under the authority of thisConstitution or of any law is inconsistent with, or incontravention of, this Constitution is part of the matrix.44 Thisencompasses matters relating to constitutional powers of Stateorgans in respect of county governments and any matter relating

42 Constitution of Kenya, Article 165 (1).43 ibid44 ibid

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to the constitutional relationship between the levels ofgovernment and conflict of laws arising there from. Outside ofthese constitutional provisos, the legislature can also conferjurisdiction.45 For example the court has admiralty jurisdictionas it hears matters arising from the high seas or in territorialwaters or upon any lake on other navigable inland waters inKenya.

Very crucial to administrative justice, the High Court hassupervisory jurisdiction over the subordinate courts and over anyperson, body or authority exercising a judicial or quasijudicialfunction.46 This however does not extend to cover the othersuperior courts. For the said purposes of supervisison, the HighCourt has powers to call for the record of any proceedings beforeany such body and may make any order or give any direction itconsiders appropriate to ensure the fair administration ofjustice.47

However, no appeal lies to the High Court from a subordinateCourt order which was passed with the consent of all parties.

Appointment of JudgesThe President appoints the Chief Justice and the Deputy ChiefJustice, in accordance with the recommendation of the JudicialService Commission, and subject to the approval of the NationalAssembly.48 All the other judges are also appointed by thepresident, in accordance with the recommendation of the JudicialService Commission.49 Judges are appointed from among persons whohold a law degree from a recognized university, or are advocatesof the High Court of Kenya, or possess an equivalentqualification in a common-law jurisdiction.50 The Chief Justice

45 Ibid.46 Constitution of Kenya, Article 165 (6) 47 Constitution of Kenya, Article 165 (7) 48 Constitution of Kenya, Article 166. (1) 49 Ibid.50 Constitution of Kenya, Article 166. (2)

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and other judges of the Supreme Court shall be appointed fromamong persons who haveat least fifteen years experience as a superior court judge or atleast fifteen years’ experience as a distinguished academic,judicial officer, legal practitioner or such experience in otherrelevant legal field.51 Each judge of the Court of Appeal shallbe appointed from among persons who have at least ten years’experience as a superior court judge or at least ten years’experience as a distinguished academic or legal practitioner orsuch experience in other relevant legal field.52 Each judge ofthe High Court shall be appointed from among persons who have atleast ten years’ experience as a superior court judge orprofessionally qualified magistrate; or at least ten years’experience as a distinguished academic or legal practitioner orsuch experience in other relevant legal field.53

.Tenure of office of the Chief Justice and other judgesA judge retires from office on attaining the age of seventyyears, but may elect to retire at any time after attaining theage of sixty-five years.54 The Chief Justice holds office for amaximum of ten years or until retiring whichever is theearlier.55 If the Chief Justice’s term of office expires beforeretirement then he may continue in office as a judge of theSupreme Court56. If, on the expiry of the term of office of aChief Justice, he opts to remain on the Supreme Court , the nextperson appointed as Chief Justice may still be selected eventhough that appointment may result in there being more than themaximum permitted number of Supreme Court judges holdingoffice.57 The judges may resign their offices by giving notice,in writing, to the President.58

51 Constitution of Kenya, Article 166. (3) 52 Constitution of Kenya, Article 166. (4) 53 Constitution of Kenya, Article 166. (5) 54 Constitution of Kenya, Article 167. (1) 55 Constitution of Kenya, Article 167. (2) 56 Constitution of Kenya, Article 167. (3) 57 Constitution of Kenya, Article 167. (4) 58 Constitution of Kenya, Article 167. (5)

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A judge of a superior court may be removed from office only onthe grounds of inability to perform the functions of officearising from mental or physical incapacity, a breach of a code ofconduct prescribed for judges of the superior, courts by an Actof Parliament, bankruptcy, incompetence, gross misconduct ormisbehaviour.59The removal of a judge may be initiated only bythe Judicial Service Commission acting on its own motion, or onthe petition of any personto the Judicial Service Commission.60 A petition by a person tothe Judicial Service Commission shall be in writing, setting out the alleged facts constitutingthe grounds for the judges removal.61

The Judicial Service Commission shall consider the petition and,if it is satisfied that the petition discloses a ground forremoval under clause send the petition to the President.62ThePresident shall, within fourteen days after receiving thepetition, suspend the judge from office and, acting in accordancewith the recommendation of the Judicial Service Commission, inthe case of the Chief Justice, appoint a tribunal.63theremuneration and benefits payable to a judge who is suspendedfrom office is adjusted to one half until such time as the judgeis removed from, or reinstated in, office.64

A tribunal appointed to look into the conduct of a judge isresponsible for the regulation of its proceedings and inquireinto the matter expeditiously and report on the facts and makebinding recommendations to the President.65 A judge who isaggrieved by a decision of the tribunal may appeal against thedecision to the Supreme Court, within ten days after the tribunalmakes its recommendations.66

59 Constitution of Kenya, Article 168. (1) 60 Constitution of Kenya, Article 168. (2) 61 Constitution of Kenya, Article 168. (3) 62 Constitution of Kenya, Article 168. (4) 63 Constitution of Kenya, Article 168. (5) 64 Constitution of Kenya,Article 168. (6) 65 Constitution of Kenya,Article 168. (7) 66 Constitution of Kenya,Article 168. (8)

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The President is under a duty to act in accordance with therecommendations made by the tribunal.67 However such action canonly be undertaken after the expiry of the time allowed for anappeal if no such appeal is taken. Should the affected judge takeup his option of appeal the president must wait for thecompletion of all rights of appeal if such an appeal is taken butaffirms the tribunal’s recommendations.

Subordinate courtsThe parliament also has a constitutional authority under Article169 (1) of the Constitution to set up courts subordinate to theHigh Court . The subordinate courts are the Magistrates courts,the Kadhis’ courts, the Courts Martial. However the parliamenthas power the constitutional mandate to create any other court orlocal tribunal as may as well as conferring jurisdiction,functions and powers on the courts. In this regard, theparliament has enacted various laws for the establishment of thecourt system in Kenya. These are the Magistrates Courts Act68,The Kathi’s Courts Act69, and the Judicature Act70. The High Courtsupervises any civil or criminal proceedings before a subordinatecourt or court-martial, and may make such orders, issue suchwrits and give such directions as it may consider appropriate forthe purpose of ensuring that justice is duly administered bythose courts.71

67 Constitution of Kenya,Article 168. (9) 68 Magistrates Courts Act, Chapter 10 of the Laws of Kenya.69 The Kathis Courts Act, Chapter 11 of the Laws of Kenya.70 Judicature Act, Chapter 8 of the Laws Of Kenya.71 Karanja Kinyanjui. (2000). How our Courts Work. Nairobi, Kenya: Trans Africa Press. p. 1

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Currently, the magistrates courts are the District MagistrateCourts (DMCs) and the Resident Magistrate Courts (R.M.Cs). The(D.M.C’s) are established under Section 7 of the MagistrateCourts Act.72 They are courts subordinate to the High Court. Theyare of three classes namely District Magistrates court- Firstclass, District Magistrates court-second class and DistrictMagistrate court- Third class. They are duly constituted whenheld by a District Magistrate who has been assigned to theDistrict in question. Magistrates of 1st and 2nd Class areprofessional magistrates with law degree. District Magistrate –3rd Class are normally lay magistrates who have no degree in law.They are being faced out and the Judicial Service Commission isno longer employing them. Newly employed magistrates nowadaysstart at District Magistrate 2nd Class (Professional). A DistrictMagistrate’s court has jurisdiction throughout the district inrespect of which it is established. However, the Chief Justicemay, by notice in the Kenya Gazette, extend the area ofjurisdiction of a District Magistrate by designating any two ormore districts a joint district.

In their Civil jurisdiction the DMC’s has no limit on the amountif the proceedings concerning a claim under African Customarylaw. However, they do not have jurisdiction over certain civilmatters related to land namely the division of or thedetermination of boundaries to land, including land held incommon, a claim to occupy or work land and trespass to land.These matters go to Land Disputes Tribunal. In all other civilmatters, their pecuniary jurisdiction is usually limited as isfrom time to time gazetted.

The District Magistrate (First Class) has appellate jurisdiction.It hears civil appeals from third class District Magistrates. Theappeal must be filed at the First Class District Magistrate’sCourt within 28 days of the judgment of the Third Class DistrictMagistrate’s Court. Appeals from District Magistrate’s Courts:-Criminal appeals from 3rd class District Magistrate go toResident Magistrate’s Court. Appeals (both criminal and civil)72 Chapter 10 of the Laws of Kenya

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from 2nd class and 1st class District Magistrate’s courts go tothe High Court.

RMCs are constituted under Section 3 of the Magistrate’s CourtsAct. They are courts subordinate to the High Court. They are ofdifferent categories namely: Chief Magistrate’s court, SeniorPrincipal Magistrates Court, Principal Magistrate’s Court, SeniorResident Magistrate’s Court and Resident Magistrate’s court.Those of Senior Magistrate, Principal Magistrate, SeniorPrincipal Magistrate and Chief Magistrate are said to be of 1st

class. They are duly constituted when held by a Chief Magistrate,a Senior Principal Magistrate, a Principal Magistrate, a SeniorResident Magistrate or a Resident Magistrate.

Their current pecuniary jurisdiction over civil matters can besummarized as follows:

Jurisdiction Enhanced JurisdictionChief

Magistrate500,000 3,000,000

SeniorPrincipalMagistrate

500,000 2,000,000

PrincipalMagistrate

300,000 1,000,000

SeniorResidentMagistrate

300,000 800,000

ResidentMagistrate

100,000 500,000

The Chief Justice is empowered to increase the limit ofjurisdiction of particular magistrates to the maximums shown inthe column called ‘Enhanced Jurisdiction, Such a magistrateretains his enhanced jurisdiction even if transferred to anotherstation. Such increase must be published in the Kenya Gazette.

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Any Resident magistrate’s court may pass any sentence authorizedby law for an offence triable by that court. This is shown in thetable below:

Imprisonment FineChief Magistrate 14 Years 20,000.00Senior Principal Magistrate 14 Years 20,000.00Principal Magistrate 14 Years 20,000.00Senior Resident Magistrate 14 Years 20,000.00Resident Magistrate 7 Years 20,000.00

The RMCs have jurisdiction in African Customary law except thoserelated to certain land issues which go to Land DisputesTribunal. They have limited power of appellate jurisdiction. Theappeals in some civil and criminal cases against the decisions of3rd class District Magistrates can be made to a ResidentMagistrate’s court of first class. All Resident Magistrate’scourts have unlimited territorial jurisdiction covering the wholecountry, unlike District Magistrates. All appeals civil andcriminally against a decision of the Resident Magistrate’s Courtgo to the High Court.

Kadhis’ CourtsThe Kadhis’ Courts are established pursuant to the Constitutionwhich grants Parliament power to establish subordinate courtsheld by Kadhis. It provides that “there shall be a Chief Kadhiand such number, being not fewer than three, of other Kadhis asmay be prescribed under an Act of Parliament.”73Currently thatlegislation is the Kadhis’ Courts Act, Chapter 11 of the laws ofKenya. The actual establishment is under S. 5 of the said Act. Aperson is not qualified to be appointed to hold or act in theoffice of Kadhi unless the person professes the Muslim religion.That person must also possesses such knowledge of the Muslim lawapplicable to any sects of Muslims as qualifies the person, inthe opinion of the Judicial Service Commission.74 Kadhis’ courts73 Constitution of Kenya,Article 170. (1) 74 Constitution of Kenya,Article 170. (2)

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have jurisdiction and powers conferred on it by legislation75aslong as their jurisdiction is limited to the determination ofquestions of Muslim law relating to personal status, marriage,divorce or inheritance. All the parties must profess the Muslimreligion. Their voluntary submission to the court is also arequirement.76 The

High Court’s jurisdiction or that of other subordinate courtsover same matters is not ousted. The law of evidence applicableto a Kadhis’ Court is the Muslim Law of Evidence. Appeals from aKadhis’ Court go to the High Court. The Chief Kadhi and the otherKadhis, or the Chief Kadhi and such of the other Kadhis, notbeing fewer than three in number, and as may be prescribed underan Act of Parliament, are each empowered to hold a Kadhi’s courthaving jurisdiction within Kenya.77

Courts MartialThe Constitution makes provision for the establishment of CourtsMartial. The actual establishment is under Section 85 (1) of TheArmed Forces Act Chapter 199 Laws of Kenya. The courts may beestablished by the Chief of General Staff or by the Commander.They are ad hoc courts formed from time to time and dissolved assoon as the trial is over. They are military courts which trypersons accused of offences under military law. They are not partof the ordinary courts.

A court Martial consists of a presiding officer and at least twoother members (or not less than four members where an officer isto be tried with a death penalty). A judge – advocate who iseither a magistrate or an advocate sits with them to advise thecourt on the relevant law and procedure. They have jurisdictionover military personnel only. The cases triable by Courts –Martial include mutiny, insubordination, cowardice, aiding theenemy, neglect of duty etc. A conviction by Courts –Martial mustbe reviewed and confirmed by a confirming officer. A Confirming75 Constitution of Kenya,Article 170. (3) 76 Constitution of Kenya,Article 170. (5) 77 Constitution of Kenya,Article 170. (4)

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officer may be the convening officer of the court martial or anyofficer superior in command to him or an officer appointed by theDefense Council to act as a Confirming Officer. Appeals from the Courts –Martial conviction go to the High Court.The Attorney General may, within 42 days, also appeal to the HighCourt. The decision of the High Court on any appeal under theArmed Forces Act is final and is not subject to further appeal.

THE JUDICIAL SERVICE COMMISSION

The role of the Judicial Service Commission (JSC)is to appoint,discipline, and removes the Registrar or Deputy Registrars of theHigh Court, magistrates and all officers of subordinate courtsexercising criminal jurisdiction, and the Chief Kadhi and otherKadhis. Further to the foregoing, they, advise the President onthe appointment of judges. The decisions of the Commission aremade by an absolute majority.

The JSC is created under article 171. (1) of the Constitution. Itconsist of the Chief Justice, as the chairperson, one SupremeCourt judge elected by the judges of the Supreme Court, one Courtof Appeal judge elected by the judges of the Court of Appeal,one High Court judge and one magistrate, one a woman and one aman, elected by the members of the association of judges andmagistrates, the Attorney-General, two advocates, one a womanand one a man, each of whom has at least fifteen years’experience, elected by the members of the statutory bodyresponsible for the professional regulation of advocates, oneperson nominated by the Public Service Commission and one womanand one man to represent the public, not being lawyers, appointedby the President with the approval of the National Assembly.78

The The Chief Registrar of the Judiciary is the Secretary to theCommission.79Members of the Commission, apart from the ChiefJustice and the Attorney-General, hold office, provided that theyremain qualified, for a term of five years and are eligible to benominated for one further term of five years.78 Constitution of Kenya,Article 171(2) 79 Constitution of Kenya,Article 171(2)

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The core mandate of the JSC is to promote and facilitate theindependence and accountability of the judiciary and theefficient, effective and transparent administration of justice.80

In the exercise of its functions under the Constitution, the JSCcannot be subject to the direction or control of any other personor authority. Further, it recommends to the President persons forappointment as judges, review and make recommendations on theconditions of service of judges and judicial officers, other thantheir remuneration and the staff of the Judiciary, appoint,receive complaints against, investigate and remove from office orotherwise discipline registrars, magistrates, other judicialofficers and other staff of the Judiciary. It also prepares andimplements programmes for the continuing education and trainingof judges and judicial officers and advise the nationalgovernment on improving the efficiency of the administration ofjustice.

In the performance of its functions, the Commission is guided bycompetitiveness and transparent processes of appointment ofjudicial officers and other staff of the judiciary and thepromotion of gender equality.81

Judiciary FundThe Judiciary Fund is administered by the Chief Registrar of theJudiciary.82It is meant for administrative expenses of theJudiciary and such other purposes as may be necessary for thedischarge of the functions of the Judiciary.83Every financialyear, the Chief Registrar prepares estimates of expenditure forthe following year, and submits them to the National Assembly forapproval.84Upon approval the expenditure of the is charged on the

80 Constitution of Kenya,Article 172(1) 81 Constitution of Kenya,Article 172(2) o82 Constitution of Kenya,Article 173(1) of the Constitution of Kenya: Article 173(5) of theConstitution provides that “Parliament shall enact legislation to provide for the regulation ofthe Fund.”83 Constitution of Kenya,Article 173(2) 84 Constitution of Kenya,Article 173(3)

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Consolidated Fund and the funds paid directly into the JudiciaryFund.

PROTECTION OF THE INTEGRITY OF THE COURTSThis refers to any willful disobedience to, or disregard of, acourt order or any misconduct in the presence of a court; actionthat interferes with a judge's ability to administer justice orthat insults the dignity of the court; punishable by fine orimprisonment or both. The law pertaining to the protection of theintegrity of the courts is referred to as the contempt of court.Section 77 of the Kenyan Constitution provides for punishment ofcontempt, notwithstanding that an act or omission constitutingthe offence is not defined under any written law.85 Further,section 5[1] of the judicature Act, Chapter 8 of the Laws ofKenya grants the high court and the court of Appeal as thoseexercised by the court of justice in England. This thereforemeans that the substantive contempt laws in England are directlyapplicable in Kenya.

are both civil and criminal contempt; the distinction is oftenunclear. A judge who feels someone is improperly challenging orignoring the court's authority has the power to declare thedefiant person (called the contemnor) in contempt of court. Thereare two types of contempt - criminal and civil. Criminal contemptoccurs when the contemnor actually interferes with the ability ofthe court to function properly - for example, by yelling at thejudge. This is also called direct contempt because it occursdirectly in front of the judge. A criminal contemnor may befined, jailed or both as punishment for his act.

Civil contempt occurs when the contemnor willfully disobeys acourt order. This is also called indirect contempt because itoccurs outside the judge's immediate realm and evidence must bepresented to the judge to prove the contempt. A civil contemnor,too, may be fined, jailed or both. The fine or jailing is meant

85 Mugambi Freda Kinya. (2006). The Law of Contempt in Kenya: A case for Review Law Society of Kenya Journal Volume .3 20006 N.. 1 Law Africa]

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to coerce the contemnor into obeying the court, not to punishhim, and the contemnor will be released from jail just as soon ashe complies with the court order. In family law, civil contemptis one way a court enforces alimony, child support, custody andvisitation orders, which have been violated.

Courts of justice have an inherent power to punish all personsfor contempt of their rules and orders, for disobedience of theirprocess, and for disturbing them in their proceedings. Apublication must create a substantial risk of serious prejudiceto the course of justice for it to amount to contempt. Indetermining whether a publication has created a substantial riskof serious prejudice, the courts will consider all thecircumstances surrounding the publication and the proceedings inquestion. It is clear that for a publication to be contempt aslight or trivial risk of serious prejudice is not enough nor isa substantial risk of slight prejudice.

The Court of Appeal issued a six-month jail sentence without the option ofa fine to Gachoka, publisher of The Post on Sunday magazine, forcontempt of court. This was reportedly the heaviest contempt penalty everimposed in Kenya. Gachoka's publishing firm, The Post Ltd., was requiredto pay a fine of Ksh 1 million (about US$13,500) before the magazinecould resume publication. With one judge dissenting, seven judges of theCourt of Appeal, Kenya's highest court, ruled that Gachoka was guilty ofcontravening the subjudice rule and making unjustified attacks on theappeals courts. The majority argued that the attacks were meant to bringthe Kenyan judicial system into disrepute. Attorney General Amos Wakohad instituted criminal-contempt proceedings against Gachoka onFebruary 15 in connection with two successive Post articles, dated January31 and February 7, in which Gachoka claimed that several judges,including Chief Justice Zaccheaus Chesoni, had received bribes inconnection with the fake-export scheme known as the Goldenbergscandal. Three of the judges named in the offending articles sat on thebench that heard Gachoka's case. Gachoka said he had received deaththreats because of the articles. He fled initially to the United Kingdom,where he intended to claim political asylum, but later returned to Kenya toface charges. When the case was first heard, Gachoka swore in anaffidavit that top government officials, including President Daniel arap

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Moi, were implicated in the scandal. CPJ protested the incident in anAugust 26 letter to President Moi. Subsequently, Gachoka received apresidential pardon. He was released from prison on November 3.86

However in the Tony Gachoka v Attorney General87, Tony Gachokapetitioned the court alleging that his fundamental rights andfreedoms as contained in Sections 72(1), 72(2), 72(3), 72(5),74(1), 75(1), 76(1), 77(1), 77(2), 79(1), 80(1) and 81(1) of theRepealed Constitution were breached by agents of the State ofKenya in particular persons believed to be members of the KenyaPolice, the Judiciary, Prison Warders and other Servants, Agentsand Employees of Government institutions between 1997 and 1999.Part of the claims were that at some material point in time hewas unlawfully held for 3 days, he had been subjected to beatings and while incarcerated his visitation rights wereflagrantly taken away. The court awarded him damages of KSh1,000,000.00.

In making an assessment of whether the publication does create asubstantial risk of serious prejudice, the court will considerthe following issues. First, is there a likelihood of thepublication coming to the attention of a potential judge, orassessor, or where they use the jury system a potential juror?Secondly, what is the likely impact of the publication on anordinary reader at the time of publication? Third is the questionof residual impact of the publication on a notional juror at thetime of trial. In assessing the likelihood of a publicationcoming to the attention of a potential juror, the court willconsider whether the publication is distributed in the area fromwhich jurors are likely to be drawn and the number of copiescirculated.

In assessing the likely impact of the publication on an ordinaryreader, the court will consider the prominence of the article inthe publication and the novelty of the content of the article inthe context of likely readers. The court will also take into

86 The case of Tony Gachoka of 1999 at the Court of Appeal of Kenyan87 (2013) eKLR

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account the length of time between publication and the likelydate of trial, the focusing effect of listening over a prolongedperiod to evidence in a case, and the likely effect of thejudge’s directions to a jury. In 2002 the Sunday Mirror was foundguilty of contempt in relation to its publication of an articleduring the 2001 trial of the Leeds United footballers Lee Bowyerand Jonathan Woodgate. The article, released while the jury wasdeliberating, strongly suggested that the assault with which thetwo men were charged had been racially motivated, despite thejudge stressing in his summing-up that the prosecution were notalleging a racist motive. It was found by the court that thearticle created an atmosphere in which justice could not be done,and a re-trial had to be ordered. Despite there being nosuggestion that the newspaper had intended to prejudice thetrial, the High Court found it guilty of contempt under thestrict liability rule.

CONCLUSIONCriminal, civil and administrative justice in Kenya, even theovert recognition of the alternative dispute resolutionmechanisms like arbitration, mediation, conciliation andrestorative justice models is founded on the dominantphilosophies of the rule of law and justice.88 The administrationof justice in Kenya is one of the primary functions of thegovernment, alongside the legislative and executive functions,and the performance is primarily proffered by the courts.89 Alongside the legislature and the executive, it is an integral part ofthe government and is responsive to a system of checks andbalances. The Legislature has three major roles as provided bythe constitution. These are the enactment of laws, deliberationsand re-examining the domestic and the international policies,direction of the budgetary and the expenditure plans, andscrutinizing and reviewing of the government performance.Consequently, both the executive and the judiciary are subject toinfluence exerted by the legislature.90The conception, planning

88 Dicey A.V. 1939. Introduction to the Law of Constitution. London, UK: Macmillan.89 Jackson Tudor. (1988). Laws of Kenya. Nairobi: Kenya Literature Bureau. P. 8690 Kuloba Richard, (1997) Courts of Justice in Kenya. [Nairobi: Oxford University Press] p. 1

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and initiation of policy, and executing the agenda sanctioned bythe legislature or the by the judiciary on the other hand is therole of the executive.91 The court system, as an integral part ofthe polity interacts with many other elements. The Politiciansappoint the judges, approve budget estimates and makelegislations which are the basic tools of trade of the courts.

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91 Ibid.

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NEW LIBERTARIAN CONSTITUTIONALISM IN KENYA EXEMPLIFIED IN JUDICIAL INDEPENDENCE

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