How we can make Judiciary more people-centred
Friday, October 11th, 2019
The Building Bridges Initiative (BBI) is expected to publish a report this month on constitutional provisions requiring reforms.
While the reform movement’s focus has been on the Executive and Legislature, few have, however, discussed judicial reforms, notwithstanding much criticism of the third arm of government.
The Constitution strengthens Judiciary by granting it, among others, the powers to review legislation and Executive Orders.
Whereas this has tamed legislative and executive overreach, there is no evidence the Judiciary supports societal goals like the fight against corruption and drugs.
One glaring example of failure has been instances where politicians holding positions that require them to be holders of university degrees have wiggled out of this requirement using courts despite holding suspect papers.
To remedy this, Kenya needs to re-orient the philosophy that underpins judicial power.
The idea that one magistrate or judge (or a bench of five judges) can render correct justice is based on false assumptions, like the belief that the magistrate or judge is free of bias and is people-centred.
A philosophy that appreciates “justice” is justice as per the people’s views, not as per a lone magistrate’s view, would assist Kenya re-orient Judiciary towards achieving social goals.
Kenya can learn from the best and consider two radical reforms.
The first one entails introducing a judicial retention election. This is a periodic process whereby a judge is subject to a referendum held at the same time as a general election. The judge is removed from office if a majority of votes are cast against retention.
A judge is deemed to have been retained if ballots cast in favour of retention outnumber those against. The US, Japan and other developed democracies use this system.
The second reform needed is to introduce jury trials like in the UK and many other developed societies.
A jury is a sworn body of people convened to render a verdict officially submitted to them by a court.
The advantages of both retention referendums and trial by the jury include checking the abuse of power, injecting community values into legal decisions, and aiding public acceptance of legal determinations.
According to University of Chicago Law School lecturer Jenia Iontcheva, sentencing decisions are well-suited to being made through a process of deliberative democracy rather than by experts such as judges, since they involve deeply contested moral and political issues rather than scientific or technical issues.
She argues that since sentencing requires individualised, case-by-case assessments, sentences should be decided through small-scale deliberation by juries, as opposed to having lawmakers codify general policies for mechanical application by judges.
In any event, Article One of the Constitution vests sovereignty on the people of Kenya. It is time to make the Judiciary a people-centred institution. — The writer, a lawyer, is the Senator for Murang’a