I have just returned from an annual ritual that has, over time, taken me to various places in the world. This time it was a two-week visit to the West African nations of Senegal, The Gambia and Nigeria.
I continued to follow up on the burning issues in my profession, one of them being the reduction of the Judiciary budget and the refusal by the President to appoint and gazette 41 judges nominated by the Judicial Service Commission.
As I interacted with my hosts on what obtains in their jurisdictions, I came to learn that Africans have never been ready to disengage from the ‘Big Man’ syndrome, which would allow them to embrace true democratic credentials.
The stranglehold on the Judiciary through key government funding is even more pronounced in Nigeria. The Magistrate’s Courts and the High Court judges designated as state judges are under the beck and call of regional devolved governments led by the respective powerful state governors who not only fund the Judiciary but also pay the salaries of all its staff.
Adverse decisions made by the respective judicial officers at times attract sanctions including starving them of the much-needed funding, compromising the independence of the courts.
The Gambia is even worse off, having only recently arisen from a 23-year dictatorial military rule by Yahya Jameh.
As already pronounced by Parliament, the reduction by the Executive of the Judiciary budget after it had been passed in the House is an unsustainable illegality. Good enough, the court has arrived at a similar verdict.
The Judiciary is the cornerstone, last port of call and foundation of any democratic society. Starving it of funds or crippling its operations by refusing to appoint judges is, in itself, a recipe for chaos.
The President’s action, therefore, raises more questions than answers.
Why were the integrity issues being raised now by the Executive not presented before the JSC, which, in any case, is comprised of the government’s chief legal adviser in the name of the Attorney-General and two other nominees?
Is there a recourse in law for the President to refuse to appoint judges already nominated? Of course not, as no less than a court of law has previously made a determination on the same.
The President is, therefore, engaging in an exercise in futility as everything has been overtaken by events. The complaints, if credible, can be raised as a ground for the removal of the same judges by petitioning the JSC after their appointment.
As for now, failure to appoint the nominees would be treated as malicious and an illegality on the part of the Executive with the negative impact being borne more by the common man and not even the Judiciary as an institution.
Most of our courts, specifically the Court of Appeal, is overwhelmed. At times it takes up to a year for an application that has been certified as urgent to be heard in the court and more or less a similar period for the delivery of a ruling, defeating the very purpose of the urgency of the case.
If my recent experience is anything to go by, the Court of Appeal in Nyeri is more or less grounded, especially after two more appellate judges retired and another set to call it a day next month.
In the Lands Court in Nairobi, one would be lucky to be given a date any earlier than six months.
With the promulgation of the current Constitution in 2010, Kenya made great irreversible strides towards democratisation, protection of human rights and the rule of law, including the independence of the Judiciary. Engagement of the reverse gear on the gains made is no longer an option.
Mr Sumba is an advocate of the High Court of Kenya. [email protected]