Kenyan Judiciary asserts itself

• The famous British Judge Lord Denning once admonished the House of Lords for being more executive-minded than the executive. He might as well have been describing the Kenyan judges of the yesteryears but now the tide has turned and the bench is no longer a purveyor of political and executive biases

People-friendly justice

According to Mr Kilonzo the drafters of the new constitution steered the country towards judicial activism as stipulated in a section of the constitution that says “Judicial authority is derived from the people…”

In this case, judges are obliged to base their decisions not only on the letter of the law but also on the prevailing circumstances and national interest. This explains why many judgments made by the courts under the new constitution have been unpredictable.

Among the first of these rulings was Mr Justice Daniel Musinga’s nullification of presidential appointments for the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and the Controller of Budget.

In making the ruling Justice Musinga observed that although there were some consultations between the two principles it was apparent that there was no consensus.

Although consensus or agreement between the two principals is not a constitutional requirement, the Kenya Law Reports writes, “the values and principles stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations”.

Activism, according to Mr Kilonzo, is a progressive attitude that only evokes opposition among anti-reformists who would prefer not to see a new Kenya.

“Activism from a judicial sense refers to the case of a judge who, when presented with a case where a village chief went against the law to save a situation, he acknowledges the law was contravened but the chief was empowered to do so in such situations, a view adopted by the bench ruling on the election date,” says the Cabinet minister.

The Nancy Baraza case

“But on the other hand, a positivist judge will say the chief has broken the law hence he should be punished, without considering other factors”.

Another litmus test for the judiciary has been the case of Deputy Chief Justice Nancy Makokha Baraza. After she was alleged to have threatened a security guard at the Village Market, Nairobi, the calls for her resignation prompted Dr Mutunga to convene the Judicial Service Commission (JSC).

The recommendations for her immediate suspension and the setting up of a tribunal to investigate her conduct were swiftly implemented.

But determined to go down fighting, the Deputy Chief Justice moved to court to challenge the legality of the tribunal, in which the High Court issued temporary orders restraining the tribunal from investigating her until the petition was determined.

However, the same court has since determined that Ms Baraza, a former chair of Federation of Women Lawyers of Kenya (FIDA), must face the panel formed to investigate her.

“Having considered all the grounds raised by the petitioner and the response by the respondents, we think that the issue raised cannot entitle the petitioner to the orders sought,” the three-judge bench comprising of Justices Mohammed Warsame, Hellen Omondi and George Odunga said, adding that the JSC worked within its legal mandate in recommending the formation of the tribunal.

The tribunal is yet to begin its sittings.

Far-reaching implications

Like Justice Nicholas Ombija, who ordered that Sudan President Omar Bashir should be arrested if set foot in Kenya, High Court judge Justice Isaac Lenaola has been in the centre of several rulings with far reaching implications.