A Critical Analysis of the Independence of Judiciary in Kenya, Before and After the Promogulation of the 2010 Constitution.

ABSTRACT The judiciary in Kenya has been progressively viewed as subservient to the executive, an upholder ofstate power and a poor protector of cit,~ens’ rights. The rejection of the judicialy 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 highliqhts 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 analysing secondary data and using Kenya as a case study, this reIationshi~ 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 judick7l independence are discussed with examples as confirmation that such protection was minimai~, weak and not respected in practice. A hiqh degree of executive intrusion, influence and control was evident inter alla in appointments, removat funding and administration. Cumulatively, these factors contributed to the erosion of personal and institutional independence leading to drastic loss of confidence. Opportunities in terms ofimplemented reforms, especially the newly promulgated Constitution ofKenya 2010 are scrutinizea~ 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.