The Judiciary

by Samuel Marete

Here we examine the court structure set out in the proposed draft Constitution.

Court structure (Articles 140, 162, 169)

The courts of the land will be in two basic tiers:

1. The superior courts, comprising:
   1. The Supreme Court,
   2. The Court of Appeal,
   3. The High Court,
   4. An employment and labour relations court, and
   5. A court to hear matters concerning the environment, and the use of, occupation of and title to land.
   6. The subordinate courts , comprising:
      1. The Magistrates’ Courts
      2. The Kadhi Courts
      3. The Courts Martial, and
      4. Any other court or local tribunal established by an Act of Parliament.

The Supreme Court: Structure and function (Articles 163, 166, 167)

The Supreme Court is to consist of the Chief Justice, the Deputy Chief Justice and 5 other judges. Quorum for the court is 5 of the 7 judges.

All Supreme Court judges are required to:

1. Have a law degree from a recognized university or be advocates of the High Court of Kenya, or possess an equivalent qualification from a common-law jurisdiction,
2. Have a high moral character, integrity and impartiality, and
3. Either have at least 15 years’ experience as a superior court judge, or have at least 15 years’ experience as distinguished academics, judicial officers, legal practitioners, or such other relevant experience, or have both forms of experience but for an aggregate of 15 years.

The Chief Justice and Deputy Chief Justice are to be recommended by the Judicial Service Commission, appointed by the President and subjected to Parliamentary approval.

All judges, the Chief Justice included, may choose to retire at any time from 65 years but must retire at 70 years. His/her term as Chief Justice is limited to 10 years. If after the Chief Justice’s term expires he/she wishes to remain a member of the Supreme Court (having not attained retirement age), another Chief Justice from outside the existing members may be appointed even if it means that the maximum number of Supreme Court judges permitted will be exceeded (I am not sure quite why the CoE felt this should be the case).

The other Supreme Court judges, as well as all judges of the other courts, are to be appointed by the President acting on the recommendation of the Judicial Service Commission.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court (this is possibly to ensure that the Supreme Court can change/reverse a decision it has made in the past). Further, the Supreme Court shall make rules for the exercise of its jurisdiction. The Supreme Court is constitutionally mandated to:

1. Hear appeals from the Court of Appeal
2. Hear appeals from any other court or tribunal as prescribed by national legislation. However the hearing of these two forms of appeal is subject to the following rules:
   1. The Supreme Court can hear an appeal in any case involving the application/interpretation of the proposed Constitution
   2. In any case in which either the Supreme Court or the Court of Appeal certifies that a matter of general public concern is involved. However, if the Court of Appeal certifies a matter to be of general public concern, the Supreme Court can affirm, vary or overturn such certification by the Court of Appeal.
   3. The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
   4. The Supreme Court has the very important function of hearing petitions in the Supreme Court challenging the election of the President.

An Act of Parliament may make further provision for the operation of the Supreme Court.

The Court of Appeal: Structure and function (Articles 164, 166)

The Court of Appeal shall comprise not less than 12 judges. The actual number of judges, together with the manner of the Court’s administration and operation, is to be guided by an Act of Parliament. However the Court of Appeal is to have a President elected by the judges of the Court of Appeal from among themselves.

Judges of the Court of Appeal are required to:

1. Have a law degree from a recognized university or be advocates of the High Court of Kenya, or possess an equivalent qualification from a common-law jurisdiction,
2. Have a high moral character, integrity and impartiality, and
3. Either have at least 10 years’ experience as a superior court judge, or have at least 10 years’ experience as distinguished academics, judicial officers, legal practitioners, or such other relevant experience, or have both forms of experience but for an aggregate of 10 years.

The Court of Appeal is mandated to hear appeals from:

1. The High Court; and
2. Any other court or tribunal as prescribed by an Act of Parliament.

The High Court: Structure and function (Articles 165, 166)

The actual number of judges of the High Court, together with the manner of the Court’s administration and operation, is to be guided by an Act of Parliament. However the High Court is to have a Principal Judge elected by the judges of the High Court from among themselves.

High Court judges are required to:

1. Have a law degree from a recognized university or be advocates of the High Court of Kenya, or possess an equivalent qualification from a common-law jurisdiction,
2. Have a high moral character, integrity and impartiality, and
3. Either have at least 10 years’ experience as a superior court judge or professionally-qualified magistrate, or have at least 10 years’ experience as distinguished academics, judicial officers, legal practitioners, or such other relevant experience, or have both forms of experience but for an aggregate of 10 years.

The High Court shall have:

1. Unlimited original jurisdiction in criminal and civil matters
2. Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
3. Jurisdiction to hear an appeal from a decision of a tribunal appointed under the proposed Constitution to consider the removal of a person from office, except the tribunal to remove the President from office
4. Jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of—
   1. the question whether any law is inconsistent with or in contravention of the Constitution;
   2. the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution;
   3. any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
   4. a question relating to conflict of national vs. county laws under Article 191; and
   5. Any other jurisdiction, original or appellate, conferred on it by legislation.
   6. Any matter certified by the court as raising a substantial question of law under (b) or (d) above shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
   7. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. To this end, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority as part of its duties under this clause, and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
   8. The High Court shall not have jurisdiction in respect of matters—
      1. reserved for the exclusive jurisdiction of the Supreme Court
      2. falling within the jurisdiction of the “Employment and Labour Relations Court” or the “Lands and Environment Court” seen above.

Kadhis’ Courts (Article 170)

Article 170 establishes Kadhis’ courts, stating that there will be a Chief Kadhi and at least three other Kadhis, the exact number being established by an Act of Parliament. The Kadhis must be persons who profess the Muslim religion and who possess such knowledge of the Muslim law applicable to any sects of Muslims as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court. The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be prescribed under an Act of Parliament, shall each be empowered to hold a Kadhi’s court having jurisdiction within Kenya.

Further, Parliament is to establish Kadhis’ courts, each of which shall have the jurisdiction and powers conferred on it by legislation. However, the jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Thoughts on the Kadhi Courts

1. There was initially much ado in the church about making the Constitution a neutral document that does not have any religious tendencies. However, the Constitution begins: “We, the people of Kenya— ACKNOWLEDGING the supremacy of the Almighty God of all creation...” As memorably pointed out by Billow Kerrow, the battle for religious neutrality is lost long before Article 170.
2. Another argument that was initially advanced was that Sharia Law was set to sweep through Kenya, having been innocuously introduced through Article 170. It should be clear from the provisions of this article that:
   1. Kadhis’ courts have an extremely narrow application, and that
   2. Even Muslims need not have their cases heard by Kadhis’ courts if they would not like to; they must give their consent.

Unlike the infamous abortion clause which is worryingly ambiguous, I’m not sure that any Christian can sensibly reject the proposed Constitution based solely on the provisions of Article 170.

Thoughts on the Judicial Structure as a whole

The great problems in Kenya’s judicial system are delayed justice, and perverted justice. Both are evil. Recent decisions against sitting Members of Parliament as a result of improperly conducted elections give us hope that perverted justice is on the wane. However, delayed justice continues to be a major problem and has indeed warranted special mention in the Constitution itself. In this regard, it is commendable that the proposed Constitution encourages other forms of dispute resolution (so long as they are in line with the law). It will also be necessary to ensure there are enough judges to hear all the cases that arise, and that sitting judges. The admission of electronic evidence (Article 260, read in conjunction with Articles 125 and 195) will hopefully speed up justice as well.

Next: Taxation

Posted by Mzalendo Editor on Aug. 2, 2010

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