INTRODUCTION

The Building Bridges to a New Kenyan Nation, commonly known in Kenya as the Building Bridges Initiative (BBI) has been deemed as one of the most defining moments of our democratic history as it fundamentally lays out the fine print of the country’s journey towards re-establishing and solidifying the core essence of our democracy; Unity, Peace and Stability.

Kenya is said to have a difficult political history and its impact on the growth of the economy and social cohesion are both substantial and irreversible. Politics of exclusions have had substantial impacts to the Kenyan society and continue to play a major role in the wanting social construct despite an increase in formal education by the masses.

The hallmark of the entire project is to bring together a country torn apart at the seams by ethnic based politics and a general lack of unity as Kenyans. We seem to be in a united front that we lack the ability to coalesce as a single unit because of the driving wedge that is our individualism, fueled by long-standing traditions and continual aversion to that which we do not understand.

Though the core purpose of the project seems both simple and unfeasible, given the state of our disputing ethnicities and their technicalities, the project aims to identify the comprehensive changes that will strengthen the Rule of Law, unite all Kenyans despite apparent differences, deepen our constitutionalism and launch a comprehensive reform process to consolidate a once in a lifetime opportunity to heal old wounds scarred by the ravages of ethnic wars and forge an alliance that will last in the coming generations.

Though the idealism behind the project is discussed on many platforms on different social aspects, our discussions will tackle three main points of interest that will be directly affected if and when the said project matures. They include:

  1. Proposals to the Judiciary;
  2. Proposals to the Senate; and
  3. Proposals to the Executive;

The said discussions will give a summarized look of how the proposals as suggested to the various arms of government would come into play as well as impact their phantasm of work as well as their established independent natures. It will also bring out the challenges that may be faced in all aspects; thus, enabling for a qualitative view on the proposal’s worth to the common mwananchi’s hope for change.

    I.        PROPOSALS TO THE JUDICIARY

The proposed amendments as highlighted in Article 172A of The Constitution of Kenya (AMENDMENT) Bill, 2020 will see a rather eccentric modification to the already established status quo of the administration of justice by the creation of the Office of the Judiciary Ombudsman.

The Ombudsman, a position of nomination by the sitting president of the Republic, will be required to play an oversight role in the affairs of the Judicial staff. This will include inquiring into the complaints against judges, magistrates, registrars, judicial officers and other staff members of the Judiciary; sensitize and promote engagement with the public on the role and performance of the Judiciary; and to improve transparency and accountability of the Judiciary.

Though the concept of the Judiciary Ombudsman may seem new, a similar reality already exists within the Judiciary, an ombudsman’s office held by the Deputy Chief Justice as an administrative office under the current Chief Justice. It has been mandated with the same powers as those that have been proposed to the Judiciary Ombudsman, to enhance public confidence and enhance transparency and accountability as well as receive and process complaints from members of the public against judicial officers. 

A critical challenge posed by the new office and/or the proposal is the impending clash of authority between the Executive and the Judiciary. Most appointments involving the Judiciary is mandated to the Judicial Service Commission. The President in this proposal is the appointing authority and if placed in the Constitution, it will dilute the powers of the Judicial Service Commission and generally affect the independence of the Judiciary to the other Arms of Government.

The proposal has also sought to limit the tenure of members of the Judicial Service Commission to a single term of five years. No proper reason as to why the same is to be reduced has been given. Further to this, in an elaborate but seemingly underwhelming attempt to avert instances of conflict of interest in the JSC, members of the commission will not be allowed to practice in courts and tribunals during their terms.

The proposal also includes an amendment to the Constitution on the tenure of Deputy Chief Justices to be limited to the 10 years provided for Chief Justice. A further challenge posed by the proposal is that it also seeks to raise the qualification standard for the bench of the Supreme Court. As per the new recommendations, the Chief Justice and other judges must have at least 20 years’ experience as a superior court judge. This poses the question as to whether the previous qualification of practice is not accounted for in the above qualification and/or the resultant effect of locking out younger judges to the Bench can be expected.

The risk of the implementation of the said proposal is the evident undermining of Judicial Independence. The very interference of the Executive in the appointment of a Judicial Officer is proof of that. The Judiciary is and remains an independent body of the government and enjoys an established form of independence, and any bold interjection by law or otherwise may create an imbalance in the functions of government.

The end question therefore is this, does the proposal set a defining tone in the world of law and order? Is the authority of the Judiciary under fire from the interference of the Executive? Does the Judiciary benefit in any way from the proposed changes? Or are we in a samsara, a never-ending loop of promises and dreams of a tomorrow so fogged by politics?

Our next post will analyze proposals to the Senate. Be sure to look out for the notifications on our social media platforms when the post goes up.

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