This archive report was first published on 3 January 2020.
For decades, Kenya has grappled with the issue of judicial reforms, with a significant turning point in the 1980s and 1990s. The goal has been to establish a vibrant, responsive, and independent judicial system that upholds democracy and the rule of law.
As outlined in the 2010 Constitution, judicial reforms were prioritized, with the creation of the Supreme Court and the bolstering of the Judiciary's independence. The Constitution also provided for the expansion of the Judiciary.
While significant gains have been made, evidence suggests that constitutional guarantees alone are not enough to secure the independence and vibrancy of the Judiciary. Political, economic, and administrative factors also play a crucial role.
Over the past two years, the Judiciary has faced intense political and administrative pressure. Following the 2017 presidential election ruling, the Jubilee administration has targeted the Judiciary, using tactics to undermine and paralyze it.
One of the key strategies employed has been budget cuts, aimed at destabilizing the Judiciary's operations. President Kenyatta has also refused to appoint judges approved by the Judicial Service Commission, creating an artificial shortage of judicial officers and disempowering courts.
The situation is further complicated by the natural transition of judicial officers. The Supreme Court, for example, is facing a crisis, with only five judges expected to remain in the coming months, following the retirement of Prof J.B. Ojwang' and the corruption charges against Deputy Chief Justice Philomena Mwilu.
The shortage of judges and magistrates has a significant impact on the administration of justice, with courts becoming overwhelmed and circumscribed.
However, the Judiciary has not helped itself. Within its powers, it has been unable to accelerate the arbitration of lawsuits, with lethargy and inaction prevalent. Corruption, procrastination, and missing files are common issues, while cases are often postponed without credible reasons, and some rulings are questionable.
Against this backdrop, the Judiciary will be under intense scrutiny this year, with the public demanding true reformation. The starting point is for the government to drop its antipathy and provide financial and administrative support to the Judiciary.
Importantly, the Judiciary, starting with Chief Justice David Maraga, must institute radical changes to transform the institution.
