Nairobi — Those opposed to the appointment of Dr. Willy Mutunga as Chief Justice, and Ms. Nancy Baraza as Deputy Chief Justice, have raised some valid concerns.
They have argued that, though both are qualified and proven reformers, the duo's enthusiasm for neo-liberal values is not and cannot be a judicial virtue, since, ultimately, judicial independence requires neutral judges.
Their opponents fear the emergence of an activist Supreme Court should the two carry those passions to their new stations.
The independence of the judiciary is the key pillar of the rule of law. Judicial independence is deemed essential if judges are to have the authority to protect and defend civil liberties.
Where necessary, the courts must have the power to invalidate unconstitutional laws approved by political majorities, as a means to enforce the criminal and civil rights of political minorities guaranteed by the Constitution.
The courts must be free to dispense justice without fear or favour, affection or ill will, in tandem with the Constitution, so that all can be equal before the law. Justice must be done without regard to personal ideology, wealth, status, class or privilege.
But the independence of the judiciary is not absolute. Judicial independence is not an end in itself; it is an instrumental value that serves the rule of law by facilitating impartial decision making.
Judicial independence must be understood in a way that not only accommodates, but necessitates an approach that appreciates its limits in relation to judicial accountability.
Even though in absolute terms, independence and accountability are incompatible, the judges are only independent enough to render impartial justice and resist intimidation but they are not so independent as to be unaccountable.
Judicial independence can relate to judges as a branch or individually. As a branch, judicial independence focuses on the structural separation of the Judiciary from the Legislature and the Executive designed to preserve its institutional integrity and resist encroachments from the political branches.
But even then, judges are not totally "independent." Parliament retains ultimate control over their budget, and aspects of their jurisdiction, structure, size, administration, and rulemaking.
For example, Articles 162, 163(9), 165(1), 166(1), 168 and 169(1d, 2) not only authorises political encroachments on the independence of judges, but circumscribe the independence afforded by Article 160 to tenure, salary, and power protections.
Judges enjoy tenure only during good behaviour (on or off the bench), and even though their salaries are beyond political control, the funds for, say, courtrooms, chambers, clerks, secretaries, court security, office equipment, cars, and supplies are subsumed within Parliament's power of the purse.
In a way, therefore, political branches possess the constitutional power to manipulate the judiciary at will, necessitating the courts to exercise caution and self-restraint, to make the actual use of such mechanisms unnecessary.
Judicial independence with reference to judges individually means that judges should be neutral in their stance to the law. Even if judges do have a political, religious, or whatever preference, their final rulings must be free of such influences. Judges must be insulated from all external influences.
Personal ideologies, which everyone has, have no room in a judge's work. Any ideological positions can only and must be pursued in the political process. And, being a political tool, activism, too, has no place in the Judiciary.
Hence, during their vetting by Parliament, Dr. Mutunga and Ms. Baraza should reassure all that they will confine themselves to reasonable interpretations of laws.