This archive report was first published on 14 June 2020.
Taking JSC out of Judiciary will bolster judicial autonomy ¶
Published on June 14, 2020, by MAKAU MUTUA
Kenya's Judicial Service Commission (JSC) has been at the center of controversy, with many calling for reforms to ensure its independence and effectiveness. In a recent article, Makau Mutua, a SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC, argued that removing the JSC from the judiciary would be a crucial step towards bolstering judicial autonomy.
Mutua's proposal is based on the principle that the judiciary should be free from external interference, including from the executive and legislative branches of government. He noted that Executive Order No 1 of 2020, which aimed to reorganize the executive, cannot touch the judiciary, as this would be a clear violation of constitutional law.
Mutua's proposal has sparked a lively debate among Kenyan lawyers and public intellectuals, with some arguing that it is a necessary step towards ensuring judicial independence. Constitutional litigator Waikwa Wanyoike, for example, agreed that the executive and legislature cannot be trusted to guard judicial independence, and that Mutua's proposals are unarguable.
However, not everyone agrees with Mutua's proposal. LSK chair and prominent lawyer Nelson Havi argued that the proposal would never work in Kenya, citing the country's low ethics and moral standards. Dr Mercy Mwarah Deche, a law scholar and JSC commissioner, also expressed concerns that Mutua's proposal would compromise the JSC's independence.
Despite these criticisms, Mutua's proposal has sparked an important conversation about the need for reforms in Kenya's judiciary. As he noted,
