Chief Justice David Maraga has occasionally come out to defend the Judiciary against the criticism and affirm its commitment to serving the public while at the same time upholding the Constitution.
Some decisions by the courts have caused some senior State officers to suggest that the institution is abusing its independence.
Delays in determination of disputes have also been cited by critics as a cause of concern.
Law Society of Kenya (LSK) President Allen Gichuhi says the issue of credibility and confidence is a complex one, as there is need to appreciate the background of how the Judiciary operates.
“There are a lot of litigations, causing a huge backlog. For instance, the public must appreciate that the rise in the number of corruption cases has not been met with a similar rise in the number of judicial officers,” explains Mr Gichuhi.
There are approximately 553,187 pending cases. The Judiciary currently has 127 judges, 494 magistrates and 53 kadhis. As it is, the entire justice needs of Kenya, with a population approximately 52 million, is in the hands of these 674 judicial officers.
According to Chief Registrar of the Judiciary Anne Amadi, with 674 judicial officers, on average each officer has 821 cases to deal with annually, if the matters were to be shared equally among the officers.
Also put into consideration that the judicial officers have approximately 230 working days in a year to determine cases after deducting weekends, public holidays and annual leave.
It would take an estimated four years to clear the pending cases, without any fresh cases being filed.
“Our judges’ population ratio needs to expand even as we review our work methods and accelerate automation. This requires resources,” Ms Amadi said during the launch of the Performance Management and Measurement Understandings evaluation report 2017/2018 on May 17, this year.
The LSK president says one of the factors affecting the Judiciary is the lack of a judiciary fund. Constant budget cuts have hindered the expansion of the Judiciary’s capacity.
Article 173 of the Constitution provides for the establishment of a Judiciary fund. Unfortunately, the State is yet to actualise this.
The Chief Justice has occasionally led other members of the Judicial Service Commission (JSC) to extend a begging hand to the State for more cash to enable the Judiciary operate efficiently.
There has been a corresponding decrease in the Judiciary’s budget with every increase of the national budget.
In the 2015/16 financial year, when the national budget was Sh1.5 trillion, the Judiciary received Sh14.7 billion. In 2016/2017, the national budget increased to Sh1.7 trillion, out of which the Judiciary received Sh17 billion.
In 2017/2018, when the national budget increased to Sh2 trillion, the Judiciary was allocated Sh14.2 billion. In the current financial year, with a national budget of Sh3 trillion, the allocation to the judiciary was Sh12.9 billion. The figures are more than 50 per cent below what the Judiciary had requested.
Retired High Court Judge Nicholas Ombija says as long as the Judiciary does not have autonomy in terms of financial management, it will be susceptible to interference from the Executive.
“It does not matter the regime in power, but without financial autonomy, the Judiciary’s independence is threatened,” said Justice Ombija.
A source who sought anonymity states that having been colonised by the British, the country also adopted its judicial system and laws, and for a long time, lawyers were being identified by the bench from successful practitioners and became judges by invitation only.
The judges would identify a good advocate, based on how he or she argues cases, who would then be approached and asked to consider working as a judge.
This changed with the 2010 Constitution, where the jobs are now advertised and the task of recruiting judges is done by the Judicial Service Commission.
It is now open and anybody can apply. In instances where persons who have never practised in court are appointed judges, they don’t bring value to the bench and instead learn on the job. Those who learn fast eventually become good judges but others never learn.
“Without the experience, they can easily be misled by lawyers into giving orders that otherwise should not have been granted,” explains a source.
“If you sit in court and see how an experienced advocate argues a case, you will be impressed. They know how to marry the facts to the law,” adds the source.
Human rights lawyer Harun Ndubi says some deserving candidates failed to be appointed as judges because they were not able to submit all the required documents at the time of applying for the job. The documents include the Higher Education Loans Board clearance certificate and Kenya Revenue Authority compliance form.
“These organisations have legal mechanisms to recover money. They should not be a bar for an individual to be appointed to public office,” lawyer Ndubi says.
He blames the Judiciary for bowing to pressure to transfer judges after politicians complain. He says this undermines the judges’ capacity to deliver in an open social democracy.
On the other hand, magistrates have also been blamed for allowing practices that give the Judiciary a bad name.
“Magistrates imposing exorbitant bail terms, which make it difficult for a person to be set free, make it appear that the Judiciary wants to punish suspects before trial,” lawyer Ndubi.
He says such actions erode public trust in the Judiciary and make them want to pay bribes to law enforcers to avoid facing the court.
Lawyer Nelson Havi says that in matters where the State is a party, it becomes quite evident that some judicial officers do not want to act independently.
Also questioned are recent detentions.
“Back in the day, the courts would release people on cash bail, but nowadays it is like a privilege to be given bail or bond; a clear indication that there is a clawback on the gains made in the enforcement of the bill of rights,” Mr Havi says.