Constitutional LawJudicial Power Structure And Independent Accountability in Kenya and Africa – Chapter 9

My overarching argument in this Chapter 9…on the Judiciary in Kenya and Africa is three pronged. First, the Judiciary is one of the three co-equal arms of Government. It is not “the third arm;” nor the “shortest” arm; nor “the unelected branch”….It is simply the Judiciary … It includes the courts, tribunals, and “bodies” and indeed judges, magistrates, judicial officers and judicial staff…

See Chapter 5, “Methodology of Constitutional, Administrative and Regulatory Law in Kenya and Africa: The Constitutional Sociology, Political Economy and Cultural Politics of Sustainable Development” CODRALKA 1.

Evaluating the Judiciary under Presidential administrations of Kenyatta I, Moi, Kibaki, Kenyatta II and Ruto (2022).

Second, the judicial power and functions, structure and process have been adversely affected by at least three (3) challenges. First, politicization of the judiciary and cultural politics. Second, judicialization of politics.

Third, juridification of society, constitutional sociology, political economy and cultural politics in Kenya and Africa.
Third, judicial reform, including debates in the context of the Building Bridges Initiative (BBI) and post-BBI addressed the question of separating the Judiciary and the Judicial Service Commission (JSC).

These reforms proposed to address at least four (4) questions. First, to of harmonize the tenure of the Deputy Chief Justice (DCJ) with that of the Chief Justice (CJ) under (Art. 167). Second, to limit the scope of the Supreme Court’s jurisdiction with regards to election petitions that should be limited to presidential election disputes. Third, empowering the Judicial Service Commission (JSC) to discipline Judges….11 Fourth, the establishment of the Judiciary Ombudsman as a check on maladministration in the Judiciary and the challenges faced by the Judiciary Service Commission (JSC) and the exfant Judiciary Ombudsman under proposed Art. 172A.12 The opponents termed this Executive or Presidential interference with the Judiciary. How can Afro-Kenyan constitutional sociology and constitutional democracy help analyze, appreciate and reform the judicial power, structure, and independent accountability in Kenya and Africa?

To read the full chapter, download the PDF here.

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