This archive report was first published on 6 November 2019.
Published on November 6, 2019, by Nicholas Sumba, a seasoned journalist who has covered various aspects of the Judiciary.
As I reflect on my recent visit to West Africa, I am reminded of the pressing issues facing the Judiciary in Kenya. The reduction of the Judiciary budget and the President's refusal to appoint and gazette 41 judges nominated by the Judicial Service Commission are just a few of the concerns that have been raised.
My interactions with hosts in Senegal, The Gambia, and Nigeria revealed a disturbing trend - the 'Big Man' syndrome, which hinders true democratic credentials. In Nigeria, the Magistrate's Courts and High Court judges are under the control of regional devolved governments, compromising the independence of the courts.
The Gambia, having recently emerged from a 23-year dictatorial military rule, faces even greater challenges. The reduction of the Judiciary budget is an unsustainable illegality, as pronounced by Parliament and the court.
The Judiciary is the cornerstone of any democratic society, and starving it of funds or crippling its operations can lead to chaos. The President's action raises more questions than answers, particularly regarding the integrity issues being raised now by the Executive.
Is there a recourse in law for the President to refuse to appoint judges already nominated? The answer is no, as a court of law has previously made a determination on the same. The President's exercise is, therefore, futile, and the complaints can be raised as a ground for the removal of the judges by petitioning the JSC after their appointment.
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. The Judiciary is overwhelmed, with the Court of Appeal taking up to a year to hear urgent applications and deliver rulings.
Kenya made great strides towards democratisation, protection of human rights, and the rule of law with the promulgation of the current Constitution in 2010. Engagement of the reverse gear on the gains made is no longer an option.
