Walking the tightrope of judicial accountability
Milimani Law Courts in Nairobi on July 22, 2020. Judge Chitembwe sparked debate by freeing a teen boy jailed for impregnating his teenage girlfriend in 2018. The ODPP responded with a new policy in 2019 offering rehabilitation instead of jail for consensual teen relationships.
What you need to know:
- By interpreting laws in ways that reflect Africa’s unique socio-political contexts, they have demonstrated intellectual independence. Balancing judicial independence and accountability is delicate but essential.
- Independence empowers judges to uphold justice without fear or favour, while accountability ensures they remain ethical and responsible.
Kenya’s Judiciary has had a tumultuous journey in its quest for independence and accountability. For decades, it was seen as an extension of the Executive, often compromised by external interference and marred by allegations of corruption.
This state of affairs eroded public trust and highlighted the urgent need for reforms to restore the integrity of the Judiciary.
A significant turning point came with the appointment of Chief Justice Willy Mutunga, whose tenure ushered in a transformative era for Kenya’s judicial system.
Determined to restore confidence in the Judiciary, Mutunga embarked on an arduous reform journey. One of his boldest initiatives was inviting Justice Albie Sachs, a former judge of South Africa’s Constitutional Court, to lead a transformative “surgery”.
This process tackled systemic weaknesses, reinforced transparency, and fostered a culture of accountability.
During this period, the establishment of the Judicial Service Commission (JSC) played a crucial role in institutionalising reforms.
Judicial independence is fundamental to ensuring justice is administered impartially and free from external pressures. Independence, however, does not absolve judges from accountability.
Mechanisms like the JSC exist to address misconduct and ensure ethical standards are upheld. In recent times, critiques from senior advocates have sparked debate about judicial accountability.
Judges have been criticised for their decisional independence, particularly when rulings deviate from established precedent. While constructive criticism is essential for institutional growth, some critiques appear to undermine judicial independence.
The tone and intent of these attacks risk eroding public confidence and may be perceived as veiled attempts to intimidate judges. These criticisms also raise the troubling possibility of state-sponsored delegitimisation of the Judiciary.
Such actions threaten to reverse the gains achieved through years of reform and risk returning the judiciary to a state of vulnerability to external influence.
The intensity of recent attacks against individual judges and judicial leadership raises the specter of state-sponsored delegitimisation.
Such actions threaten to undo the gains achieved through reforms and risk plunging the Judiciary back into a period of vulnerability to external influence.
The Judiciary, as a co-equal arm of government, stands as Kenya’s most robust institution. It is vital to protect it from undue interference and ensure that criticisms are grounded in the spirit of improvement, not intimidation.
Despite these challenges, Kenyan judges have made significant strides in contributing to the evolution of African jurisprudence.
By interpreting laws in ways that reflect Africa’s unique socio-political contexts, they have demonstrated intellectual independence. Balancing judicial independence and accountability is delicate but essential.
Independence empowers judges to uphold justice without fear or favour, while accountability ensures they remain ethical and responsible.
The writer is a programme officer at the Kenyan Section of the International Commission of Jurists
