In 1985, the seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held a meeting in Milan, Italy, during which they adopted the “Basic Principles on the Independence of the Judiciary”. Article 2 of the principle says: “The Judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
The reason for this, as observed by the Congress, is that judges are charged with the “ultimate decision over the life, freedoms, rights, duties and property of the citizens.” Government being the greatest abuser of the citizen, the Judiciary is often the last hope for the people. One such is the Government of Kenya. Until recently, the Government was internationally reputed as one of the world’s greatest abusers of citizens’ rights.
So intent was the government on perfecting the execution of these abuses that in 1988, it amended the Constitution to remove the tenure for judges. We were barely out of the woods when we heard Cabinet ministers issue a policy decision that they were going to formulate performance contracts for judges to sign. The rationale was that since the rest of the country was going through reform, the Judiciary had to be part of it.
My first thoughts were that the Government was acting without shame. After 40 years of totally subjugating the Judiciary to its will, it needs to handle the Judiciary more sensitively. It behooves the Government to show remorse for its great contribution to the sorry state of the Judiciary over the years.
Secondly, the genuine idea is to get everyone on the reform train, then one must ask to know the station where we dropped off parliamentarians? Of the three arms of Government, Parliament is the most pampered and privileged. In fact, we are told that they are some of the best paid legislators in the world. Yet, we are also told they are the laziest.
This does not seem to bother the Government and its stated dedication to service delivery. After all the money and effort it has put into the welfare of parliamentarians, how come we haven’t heard one statement regarding performance contracts for them? Why does the question of the performance of judges assume such an urgent and peremptory concern while Parliament continues to guillotine the budget because MP’s would not put in a few extra hours debating it?
It is fair to say that our Government has not put in even 10 per cent of the money and effort it has dedicated on Parliament to give us a better Judiciary. And while every day we read about increments of salaries for various civil servants, new cars, equipment and housing for police and prison officers, millions of shillings in house and car loans for MP’s, the terms of service for judicial staff remain deplorable.
The second attentions that the Government has given to the needs of the Judiciary deny it the moral authority to comment on judicial performance. And this moral authority can only be acquired if it first gives the Judiciary the tools it needs to be efficient.
The continued insistence that the Judiciary deliver more without concern over the infrastructure requirements does not raise questions about the real intentions of the Government. The Government also lacks the moral authority to comment on the performance of the Judiciary because it is the one that single-handedly constitutes it.
Despite calls over the years for the Government to consult stakeholders regarding judicial appointments, it has continuously ignored even the Judicial Service Commission and the Law Society of Kenya. If there are inefficient judges, then it is the Government to blame for making unilateral decisions on their appointment in the first place.
Until the 1990’s, our Government controlled the Judiciary by employing judges on contracts that were renewed at the pleasure of powerful people. Both Chief Justices Evan Gicheru and the Court of Appeal head Justice R.S.C. Omollo, are past victims of intimidation.
The Government will need to engage in more positive interventions before it can convince members of the bench and of the legal profession that its concern over judges is in the public interest.
