There are so many rhetorical questions that the current standoff between the Executive and Judiciary has created. Do we stand and wait for the final whistle? Do we put our opinion in public? Will our opinion even matter when Court orders are trampled on? Will our voices even matter?
It was Montesquieu and Hamilton who categorically pointed out that, the judiciary is the weakest arm of Government. There are clear context in our country that may justify this point. The president’s speech after the nullification of the 2017 presidential election is one of the instances when this became clear. When the President stood at a gathering and called judges “wakora” and questioned their mandate to exercise judicial Authority. He further posed to ask whether they were elected by the people. This was a clear indication of the Executive asserting its pressure on another arm of Government. Do elections give the other arms of Government more power than the Judiciary?
There several members of the legislature who have been giving public speechs in political gatherings citing the Judiciary as a lesser arm of Government. They, like the president think elections justify their opinion. Should we then elect amend our constitution to have an elected bench?
Professor Onsogo Ambani once asked us in his constitutional law class whether there were better Articles in the constitution than others. It was clear that we all seemed to have our favorite articles then! He further went ahead to ask us what then needed to be done on those articles that we didn’t like. We all remained silent. At the end of his lesson we were all convinced that there were no good articles that others we just had a transformative constitution!
Government Authority is derived from the constitution; all its arms too derive their Authority from the same constitution. The people have mandated these arms with specific responsibilities. It will be chaotic if another arm of Government interfered with other.
The former Chief justices of Kenya Honorableness Dr Willy Mutunga and David Maraga have spoken wisdom. They have rebuked and condemned the decision of the president to withhold confirmation of the four nominees as judges. The president had all the time and proper representation at the Judicial Service Commission. He should have tested their suitability of the rejected candidates at that time of public vetting.
The objects that hold judicial independence cannot be negotiated. These are; the mode of appointing the judges, the tenure by which they are to hold their places, the partition of the judiciary authority between different courts, and their relations to each other.
The people have to defend the Judiciary and its independence. The institution may have its challenges but they cannot watch in silence and expect the Judiciary to fight it all alone. The battle of judicial independence is not for the Judges and Magistrates. It is for the country. The bar is too silent over this issue, perhaps struggling too to find its independence!
Chesoli D Chebayi-Advocate of the High court of Kenya