A Critical Analysis of The Independence of Judiciary in Kenya, Before and After the Promogulation of the 2010 Constitution.
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Date
2013-12
Authors
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Journal ISSN
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Publisher
Kampala International University, School of law
Abstract
The judiciary in Kenya has been progressively viewed as subservient to
the executive, an upholder of state power and a poor protector of cit,~ens’
rights. The rejection of the judicially as an independent and impartial
arbiter of disputes was a major contributor to the post-election violence
experienced in December 2007 which resulted in anarchy and massive
loss of ilves and property, therefore, this thesis contends that there is a
contextually symbiotic llnk between separation of powers and judicial
independence. While focusing on the relationsh4 between the judiciary
and the executive, the research high lights the dangers of failure to
maintain the appropriate balance of power between the executive,
judiciary and the legislature, its ramifications to the law on judicial
independence. By analyzing secondary data and using Kenya as a case
study, this relationship is chronologically traced from the pre-coloniat
colonia, independence and post-independence periods. An examination of
successive constitutions exposes gaps and weaknesses in constitutional
provisions and judicial practices in guaranteeing judicial independence.
Instances of violation of judic independence are discussed with
examples as confirmation that such protection was minimai~, weak and not
respected in practice. A high degree of executive intrusion, influence and
control was evident inter alla in appointments, removate funding and
administration. Cumulatively, these factors contributed to the erosion of
personal and institutional independence leading to drastic loss of
confidence. Opportunities in terms of implemented reforms, especially the
newly promulgated Constitution of Kenya 2010 are scrutinize The thesis
condudes that even though complete independence from the executive
cannot be achieved nor is it desirable, more robust constitutional
protection of judicial independence, coupled with a high degree of
autonomy can be a strong guardian against violation.
Description
A Thesis Presented to the College of Higher Degree and Research, Kampala International University Kampala, Uganda
In Partial Fulfillment of the Requirements for the Degree of Master of Laws in Public International
Keywords
The Independence of Judiciary, Kenya,, Promogulation of the 2010 Constitution.