Which arm of government has failed?

The doctrine of social contract holds that citizens delegate the authority to govern themselves to government. Government is traditionally structured into three arms: the Executive, the Legislature and the Judiciary. The relationship among these and with citizens determines the quality of democracy.

In the past week or so, there has been debate about the Judiciary. The debate has revolved around the appointment of 34 judges by the President who declined to name six others who had been nominated by the Judicial Service Commission (JSC).

The matter has raised huge constitutional debate on whether the President has powers to do what he did.

There is a need to consider the question within the larger context of the performance of Government.

When the 2010 Constitution was adopted, the overriding desire was to improve the quality of governance. For the Executive, the move to a presidential system with reduction of presidential power on the one hand and adoption of devolution on the other were aimed at making the Executive more accountable.

The legislative changes saw introduction of a bicameral Parliament at the national level. County assemblies were also created across all the 47 devolved units.

The Judiciary, too, underwent its changes, including vetting of judges, establishment of a robust JSC, introduction of Deputy Chief Justice and Chief Registrar of the Judiciary and creation of a Supreme Court.

Ten years later, have the reforms borne fruit? Last week, I participated in a discussion on the relationship between the Executive and the Judiciary. The moderator posed this question after a commentator quipped that Judiciary reforms had borne no fruit.

Answering this question, it is important to evaluate the entire government.

It behoves us to do a comparative assessment. Since the concern is the Judiciary, maybe that is where the scrutiny should begin.

One needs to start either at the many Judiciary reform reports before the 2010 Constitution, starting with the Kwach Report the Onyango-Otieno Report, the Kihara Report and ending with the Ouko Report whose recommendations influenced some of the provisions in the 2010 Constitution.

When Willy Mutunga was appointed Chief justice under this Constitution, he justified the transformation he was introducing on the state of the institution at that point. On several parameters, the CJ gave a damning assessment, concluding that it was not possible for the institution to deliver on its mandate of dispensation of justice in fair and expeditious manner. The question is whether one looking at the institution today would reach a different or similar verdict.

From the courtrooms revamp and expansion, increase in numbers of judges and judicial staff, financial allocations to the quality of jurisprudence, one cannot say that the Judiciary has not changed.

The legislature is supposed to check the other arms of Government. MPs themselves admit that the impact the institution has on governance has waned over the years. Some blame it on the structure of Government, others on the quality of legislators, while others think it is a problem of numbers. These can be debated.

However, on oversight, representation and law-making, citizens are disappointed about the quality of performance of the institution.

The Executive’s assessment is up in the air. Over the last few months, there has been an overwhelming complaint that despite delivering on several of its commitments, the quality of life of the citizens is not any better.

Covid-19 is a factor but the Executive takes its share of the blame.

In the end, there are areas that require fixing. However, if we were to rank the three arms of government, the Judiciary would be at the top. It cannot be the one that has failed Kenyans most.