Judicial Independence in Kenya: Constitutional Challenges and Opportunities for Reform

The judiciary in Kenya has been progressively viewed as subservient to the executive, an upholder of state power and a poor protector of citizens’ rights. The rejection of the judiciary as an independent and impartial arbiter of disputes was a major contributor to the post-election violence experienced in December 2007 which resulted in anarchy and massive loss of lives and property. This thesis contends that there is a contextually symbiotic link between separation of powers, judicial independence and the rule of law. While focusing on the relationship between the judiciary and the executive, the research highlights the dangers of failure to maintain the appropriate balance of power between the executive, judiciary and the legislature, its ramifications to judicial independence and the rule of law. By analysing secondary data and using Kenya as a case study, this relationship is chronologically traced from the pre-colonial, colonial, independence and post-independence periods. An examination of successive constitutions exposes gaps and weaknesses in constitutional provisions guaranteeing judicial independence. Instances of violation are discussed with examples as confirmation that such protection was minimal, weak and not respected in practice. A high degree of executive intrusion, influence and control was evident inter alia in appointments, removal, funding and administration. Cumulatively, these factors contributed to the erosion of personal and institutional independence leading to drastic loss of confidence. Opportunities in terms of implemented reforms, especially the newly promulgated Constitution of Kenya 2010 are scrutinised. The thesis concludes that even though complete independence from the executive cannot be achieved nor is it desirable, more robust constitutional protection of judicial independence, coupled with a high degree of autonomy can be a strong guardian against violation. New threats are discovered. Further research, constitutional amendments and use of non-legal initiatives are proposed as key for future judicial reform.