The Commonwealth Legal Education Association (CLEA), the Commonwealth Lawyers Association (CLA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are extremely concerned by reports attributed in the media to His Excellency President Uhuru Kenyatta and senior members of his party in relation to the Judiciary following the decision of the Supreme Court to annul the Presidential elections on 1 September 2017.
By virtue of its membership of the Commonwealth, Kenya is committed to the shared fundamental values and principles of the Commonwealth, at the core of which is a shared belief in, and adherence to, democratic principles including respect for the authority of an independent and impartial judiciary and “the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives” (Harare Declaration 1991).
The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003) state: “Each Commonwealth Country’s Parliaments, Executives and Judiciaries are the guarantors of their respective spheres of the rule of law, the protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty,
probity and accountability…Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity.” The Commonwealth Charter reaffirms both the political rights and a citizen’s rights to an independent judiciary.
The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies. Any public threats or measures taken against the judiciary or individual judges which erode the authority and independence of the judiciary, are a matter of extremely grave concern.
The CLA, the CLEA and the CMJA urge all those involved in leadership roles to respect the independence of the judiciary in accordance with the Constitution of Kenya and by Kenya’s obligations as a member of the Commonwealth and to desist from undermining the authority of the judiciary and the courts whose decisions are binding on all persons and organs of the state.