Let's jealously guard judicial autonomy to keep our democracy


In the intense tapestry of Kenya’s body politic, the Judiciary is the center of balance, a symbolic midwife whose independence serves as a heliograph of hope and a safeguard of our nation’s democratic principles and constitutionalism. While the other arms of government delve into the business of governance tandem to the principle of separation of powers, the Judiciary is often caught in the political mix—leaving Kenyans with a conflicting debate of judicial autonomy versus perceived Executive overreach.

At the inception of the Kenya Kwanza regime, President William Ruto started off with gestures that left some proponents of judicial autonomy reading mischief. While the general public made good of the gestures as necessary for efficient operations at the arm that is the custodian of the land’s laws, the appointment of judges day one into office, complete with promises of greater budgetary allocations to the Judiciary, was received with a little fear of Executive enticement. Thus my subject; an interrogation of whether the Judiciary has lived up to the invested trust. The Judiciary has made pivotal decisions in high profile cases challenging a number of government initiatives and policy frameworks. In 2017, the Supreme Court made a landmark ruling that saw a presidential election nullified, citing irregularities in the electoral process.

In 2018, the High Court ruled against a government ban on the importation of second-hand clothes—acting in defense of the right to trade and the freedom of choice. In 2019, the Court of Appeal followed suit in a case that said forceful eviction of people from their homes was unlawful—ensuring that the people’s right to dignity and housing is not overrun when formulating policies.

Last year, the courts had another watershed moment with the legal conflictions revolving around the Building Bridges Initiative. It was evident that the initiative had heavy government support, but the courts boldly declared the process unconstitutional, thwarting the proposed constitutional amendments—thus cementing the need to adhere to laid out constitutional provisions in pursuit of political goals.

President Ruto has been unwavering in his commitment to deliver affordable housing. This prompted Kenya Kwanza to introduce the Finance Act, 2023 complete with tax reforms seeking to finance the budget. A three-judge bench at the High Court delivered a ruling that largely implored the government realign the framework of execution. Justices Christine Meoli, David Majanja and Lawrence Mugambi found the housing levy unconstitutional and discriminatory for targeting only those in the formal sector.

The Judiciary has conclusively shown its commitment to protecting the laws of the land. The institution faces acute limitations as those of inadequate facilities, corrupt practices, political interference, and limited access by the public, among others. However, the aforementioned cases not only point to exemplary and satisfactory autonomy, but also a reinforcement of its function of overseeing the exercise of democratic values fundamental to the existence of our democracy.

The writer is a PhD candidate in leadership and governance


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