The International Center for Policy and Conflict (ICPC), a non-profit, independent, human rights public policy research, advocacy and education institute, on Monday, June 15, sent President Uhuru Kenyatta a stern warning regarding the current impasse between the Judiciary and the Executive arm of government.
The full statement sent by ICPC Executive Director Ndung'u Wainaina to Kenyans.co.ke, reads as follows:
International Center for Policy and Conflict (ICPC) steadfastly supports judicial independence and the sound exercise of adjudication discretion by Kenya judiciary.
State and Public officials, especially the Presidency, who personally attack judiciary and judges create a perception that the judicial system is serving a political or other purpose rather than the fair administration of justice.President Uhuru Kenyatta during the press briefing at State House on June 6, 2020.
It is incumbent upon the state and public officials and members of the legal profession, whose sworn duty it is to uphold the Constitution and the rule of law, to do everything in their power to preserve the integrity of the judiciary and justice system.
ICPC is deeply concerned by the presidency sustained and unjustified attacks to undermine the independence of the Judiciary and judges.
A fair and impartial judiciary is indispensable to Kenya system of justice. Both judicial decisions and the process by which judges are selected transcend political partisanship.
ICPC strongly calls on President of Kenya to respect the independence of the judicial branch and end unscrupulous actions to politicize the judicial process. Judiciary is a co-equal arm of the state and not an agency of the Executive.
The framers of the Constitution of Kenya 2010 were alive to the historical consequences of capture, interference and compromise of the Judiciary by the Presidency.
The answer was to provide for an independent judiciary that would enforce separation of powers and keep the other two branches in check, especially overreaching Executive and zealous Parliament.Chief Justice David Maraga during a press conference at the Supreme Court on November 4, 2019.
The framers of the Constitution believed an independent judiciary was central to constitutional democracy and critical to fairness and impartiality, and to assure such judicial independence, they provided in the Constitution itself that judges would be appointed through an independent process and equally for their only removal for high crimes and misdemeanours.
In other words, the framers created a Judiciary that was immune, by and large, from political pressure.
It is significant to note that the judiciary is the least dangerous and weakest branch arm of the state because it holds neither the constitutional purse powers of the Parliament nor the force of the Executive.
As such, judiciary must be protected from outside influence by respecting and upholding the safeguards to its independence in the Constitution.
The Presidency must call out its agents to order and stop mudslinging, bastardizing and criminalizing judiciary and judges. If it is not responsible for these nefarious acts, it must apprehend the culprits and bring them to justice.
Such personal attacks treat the courts as though they were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
The independent judiciary is something Kenyans are all thankful for except those in powers who don’t believe in fidelity to the Constitution and the rule of law.
It the duty of the judiciary to declare all acts contrary to the manifest tenor of the Constitution void. The judiciary exercises powers to protect the guarantees set out in the Constitution by having the power to say “no” to the Parliament and “no” to the Executive when they overstep the limits of their constitutional powers.Chief Justice David Maraga during a court session in 2017.
The Constitution insulates judges from the public pressures that affect elected officials. The Constitution protects judicial independence not to benefit judges, but to promote the rule of law. Judges follow the law, the Constitution and precedent with very clear constitutionally established judicial accountability mechanisms.
The burden of zealously guarding judicial independence falls largely to the legal profession and the people of Kenya who believe in the rule of law. They must collectively speak up for an independent judiciary.
The lawyers and their Bar, Law Society of Kenya, should realize that one of the main reasons lawyering is a profession is precisely so that an independent assertive bar may defend the independence of the judiciary.
Finally, because of emerging savage affront trends and media messages against the Judiciary that so clearly are having a dramatic impact on the public’s perception of the legitimacy of the courts, ICPC believes that judges, too, must add their voices.
If Kenyans are to ensure that the courts remain independent from politics and from other corrosive outside influences and, as importantly, assure that they are perceived that way by the public, then judges, by definition the guardians of the rule of law, must participate more visibly and vocally in defending independent Judiciary and Constitution.
The statement comes in the wake of Chief Justice (CJ) David Maraga's public statement accusing President Uhuru of trying to control the Judiciary and disrespecting court orders.
CJ Maraga in a statement read on June 8, made a withering attack targeting the President for refusing to appoint 41 additional judges and snubbing requests for a meeting to discuss a dispute that has strained the relationship between the Executive and Judiciary.President Uhuru Kenyatta speaking at State House on May 23, 2020PSCUcriminal
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