In its historic context, judicial independence is usually seen from the perspective of the state’s or government’s influence, control and interference in the affairs of the Judiciary.
When the Judiciary is constitutionally, financially and managerially independent from the State, it is said that it is institutionally independent.
Institutional independence means that no outside authority, whether in government or in the private sector, can interfere in the affairs of the Judiciary.
The second type of independence is behavioural. In the light of the history of the Kenyan judiciary, it will take time before members of the Judiciary are behaviourally independent. This is being addressed, but it will take time.
As the Judiciary exerts its influence, authority and power in Kenya’s current constitutional dispensation, it faces a number of forces that are hell-bent either on derailing the broader national reforms or not easily accepting the influence of the new judiciary.
These forces either don’t understand the new dispensation or are deliberately playing by the old rules.
In the past three weeks, Kenyans have been treated to a circus relating to court decrees, judgments, rulings and orders relating to a number of high-profile court cases.
Some cases involved bodies such as the National Social Security Fund and the National Cereals and Produce Board, while one involved Mr Philip Moi and his estranged wife.
The way the media reported on these cases clearly shows how entrenched the old order is.
The media, instead of analysing the merits and demerits of the court’s decision, looked at the verdict in the context of corruption, deals and kick-backs.
In the context of court judgment, especially when the award runs into hundreds of millions of shillings, the media are overtly sensational, shoddy in analysis and poor in objectivity.
They play to the public gallery and habitually fail to contextualise the factual and legal matrix of the judgments.
The NSSF cases provide a classic example of the media running amok. We all know the history of NSSF and Kanu. We all know that NSSF was, during Moi’s tenure, the cash cow of Kanu cowboys — whether lawyers, contractors, politicians or your average wheeler dealer.
In the last 10 years, the affairs of NSSF have greatly improved. Of course it has a lot of skeletons in the closet, but gone are the days when it would buy a limestone quarry for billions of shillings.
The payments made to a number of parties were litigations from the Kanu era. The disputes were properly litigated before arbitrators and the courts. Judgments were rendered by the arbitrators and courts and final awards made.
To the credit of the management of NSSF, they negotiated downwards the judgment of the courts and actually saved the Fund hundreds of millions and finally settled the disputes.
So what is the fuss all about? Why are payments made in obedience of court orders sensationally questioned?
One has to understand the psyche of Kenyans. Once we see a huge judgment by a court and payments made, we rush to the conclusion that people “have eaten”.
The other issue that was sensationally addressed by the media is the allegation that parties who were awarded judgment either have not put up the buildings or did not deliver the goods.
None understands that these cases are for breach of contracts. It is precisely because no building was constructed or no bag delivered that the aggrieved parties went to court.
There is a need to respect, adhere to and enforce decisions of the courts. The bedrock of the rule of law is people governed according to the law.
The courts, on the other hand, must protect their turf and ensure that they punish those who sensationally insinuate that their judgment has bedrock of corruption, deals and “eating”.
The writer is the publisher, Nairobi Law Monthly firstname.lastname@example.org