In the recent times the Judiciary of Kenya has been on the spotlight in its role in the fight against corruption. There is a general public argument that the judiciary has been slacking in this area and worse accused of being a puppet that is controlled by the people and authorities in power. So, is the judiciary the weakest link?
The judiciary has played a critical role by upholding and protecting the principles and purposes of the Constitution of Kenya. Failing to perform this mandate as required by the people of Kenya would be the first step in failing in the fight against corruption. In this regard it has not failed and has tirelessly upheld the rule of law in our nation despite the fierce forces that have come against it and threatened it.
First and foremost, it is vital to understand the judiciary does not operate on its own accord. In Article 159(1) of the Constitution of Kenya,2010, we see the judiciary’s power to perform its mandate is derived from the people of Kenya. The judiciary is required by the people of Kenya to uphold the rule of law and protect the principles and purposes of the Constitution of Kenya as it expresses our desires and rights as a people.
To ensure it performs its mandate efficiently without interference or control by others, the Constitution grants the judiciary absolute independence from the other arms of government and other influences in Article 160 of the Constitution of Kenya. The judiciary must therefore follow the due process of law without fear or favour as mandated by the Constitution.
Essentially the judiciary is expected to administer justice in our nation through the court system in place. In taking on an active role to join the fight against corruption, the judiciary has created specialized courts for this. The courts are namely the Anti-Corruption Magistrate’s courts and the High Court Anti-corruption and Economics Crimes Division. These courts have extended working hours and active cases management systems to ensure the cases are heard and dealt with in a timely fashion.
Despite this great strides and other programs to improve the quality of administration of justice, we cannot turn a blind eye to some of the challenges the judiciary has faced in this fight. These challenges have made the judiciary be termed as the weak link yet some are completely independent of the Judiciary. Some of the challenges are:
- Insufficient funding for its operations;
- Corrupt cartels in courts that manipulate cases;
- Backlog of cases in courts due to lack of exploitation of alternative forms or dispute resolution by litigants; and last but not least,
- A general lack of understanding and appreciation of the court realities on the ground by people. For example; delaying tactics employed by both clients and advocates during the trial process. A vivid reality that I have faced while handling court cases.
The war against corruption is a cancer that plagues the whole nation. The burden and responsibility to fight it cannot be placed on a single player when the whole nation is involved in one way or another. The fight is further not going to be won by blaming one another or busying ourselves with the question ‘Who is the weakest link out of them all?’ At the end of the day all arms of government, institutions and people of Kenya are weak links if they fail to do their part in the fight against corruption.
In my opinion, the statement ‘the judiciary is the weakest link in the fight against corruption’ is a misconception and lack of appreciation of the realities of administrating justice in a nation. The judiciary is the bloodline in protecting the desires and rights of the people of Kenya.