The
doctrine of separation of power as currently imitated by the three arms
structure of the Government was first spoken by early legal scholars like
Montesqueiu, John Locke and many others. Like for Instance Montesqueiu pointed
that the division of Government into three organs is to separate power and
ensuring checks and balance in the organs for every organ has a traditional
duty either to make, interpret or enforce the Law. If that so is true which I
think you will agree that the Judiciary as an organ and not only an organ but a
crucial body of the government needs not to be bounded, needs not to be chained
in the absoluteness of oneself.
Like
how John Locke in 1609 pointed that power must be limited and must be controlled,
meaning also that powers concentrated much on one individual or a mini group is
unfit and may harm personal rights and protection under equal Justice. The
greatest powers ever granted to the presidency to elect or rather choose Judges
and other senior Justices is more than any power ought to be granted to the
Executive as an arm of the Government.
The
reason for my motion is simply that the key traditional approach of
Governmental Structure which we comply with does not allow delegation of such
vast powers like ‘the power to elect or remove a Judge from the office’ by the
President. In our current Constitution we can clearly observe the vast power
given to the Presidency over the Judiciary, Article 109 shows how the president may elect Judges of the High
Court in which their number is not less than thirty individuals. Apart from
that all members of the Judicial Service Commission are elected by the
president as Article 112 s(1), (2)a, b,
c, d and e and s(3) highlight that the Commission to be comprised with CJ
as a Chairperson, AG, Justice of Appeal, Principle Judge and two members
appointed by the president. If a sound minded person will observe this
commission one can visibly see that the whole commission is elected by one
person, that in first instance is not only dangerous for the exercise of the
rule of law but also the appointed members may work in the interest of the Appointer.
From
the fact therefore, for a better governing and a proper separation of power
among the arms of the Government then a free and nonalignment commission needs
to be formed by the civilians themselves employing intellect members from the
legal field that are not part of the Judiciary itself but will be independent
in making decision and resolving any disputes arising.
A
good portrait of this is found in the Kenya
Constitution 2010, Article 160(1) says that the judiciary should not be
subject to the control or direction of any person or authority rather than the
constitution. Also on the Issue of appointment of Chief Justice, the Attorney
General and all the Justices must be confirmed by the Judicial Service
Commission of Kenya and later on being given life by the National Assembly as Article 166 s(1)a and b clarify. This should also be in the
case of removal of the Judges from office which also should be done in
conformity with the Judicial Service commission.
Nailing
it down a change is ought to be made for even the functions of the Judicial
service Commission as expressed in Article
172 of our Constitution cannot be executed efficient since all the members
being choose by the president have no sound or rather fully power over decision
making as the body itself is not independent in its nature of formation.
By Oscar O. Mutaitina,
LL.B student at the Catholic University of Eastern Africa.
By Oscar O. Mutaitina,
LL.B student at the Catholic University of Eastern Africa.
