Without Judiciary independence: Forget about economic growth and social harmony


Lawyer Donald B. Kipkorir when he  handed over to Ministers  Amina Mohammed and Raychelle Omamo, his final report on Task Force on Kenyans Working Abroad. PHOTO/FACEBOOK



Thomas Hobbes (1588-1679), is considered the Father of modern philosophy. He is famously known for his treatise, Leviathan. He posited that before we came together to live in societies and states under laws, society was in “… continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”

The threat by Jubilee leaders to “FIX” the Judiciary will take us back to pre-States era. Kenya will then spiral to chaos, madness and darkness.

Judiciary is meaningless and useless if it is a dancing marionette to the Executive. If Judiciary is only good if it makes favourable decisions for the Executive and useless for converse decisions, then we don’t need it.

When we enacted our current Constitution, we clearly understood the value of independent Judiciary. The Constitution makes clear that the Judiciary, the Executive and Parliament are representative of the sovereign will of the people. Each is separate. None is more powerful than the other.

Lawyer Donald B. Kipkorir (centre) with friends. PHOTO/FACEBOOK

The argument that one arm is more powerful because it is elected by the people is legal balderdash. If being elected by the people makes that arm more powerful, the Constitution could have said so.

More fundamental, members of the Executive can be removed by recall or impeachment and have no security of tenure.

Judiciary on the other hand cannot have its powers varied or reduced or derogated other than by referendum. The Judges have security of tenure. Magistrates can’t be removed willy-nilly.

The political rally calls to tame the Judiciary is empty wind. It is like the whistling of a mad man in the market.

Independent Judiciary arbitrates commercial disputes. Our Judges resolves probate matters. Judges preside over divorces. Magistrates deal with adoptions. Courts handle criminals and make us safe. Courts protect our inventions. Courts protect our title deeds. Independent Judiciary attracts international investors.

It is why New York, London, Hong Kong, Johannesburg and Singapore are the world’s financial capitals. In Africa, only Johannesburg is considered safe financial city for its independent Judiciary.


So, Kenya can decide what it wants: to have a truly independent Judiciary and protect its investments and families, or an impotent Judiciary and remain a tribal, poor and primitive society.

We may cheer politicians now when they denigrate and abuse CJ David Maraga, but the day or night will come, when we will regret. And it will be too late. Burn Kenya, but know you are inside the house.

You would have burnt the fire-brigade that is the independent Judiciary. The devil must be dancing in hell.

Donald B. Kipkorir is an advocate of the High Court and Managing Partner, KTK Advocates. He specializes in Corporate & Commercial Law Practice


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