Why the Judiciary is/should be Independent

Introduction 

Judicial independence is the concept in which the judiciary needs to be kept away from the other arms of government. The court should not be subject to government influence or any other influences that may be partisan or private.  

The independence of the judiciary is established under Article 159 of the Constitution of Kenya. Independence of the judiciary is a core element of modern constitutionalism and a pillar of democracy. Hon Justice Augustus Molade Akiwumi was a judge and also the second speaker of the Parliament of Ghana.

History of the Judiciary:

• Judiciary is an arm of government that comprises a system of courts of law for the administration of justice. The first court in British East Africa was established by the Imperial British East Africa Company in 1890 with A.C.W Jenner as its first judge.
• In 1895, the East Africa Protectorate was established with the Consular court to serve British  and other  foreign persons. However a court with jurisdiction over all persons in the territory was first established in 1897- Her Majesty’s court of East Africa which was later renamed ‘the High Court of East Africa’.
• The Judiciary of Kenya can be traced to the East African Order of Council of 1897 and Crown regulations made there. This was the beginning of a legal system where it was based on tripartite division of subordinate courts namely: native courts, Muslim courts and those staffed by administrative officers and magistrates. The first Chief Justice in Kenya, Sir Robert William Hamilton was appointed in 1906.
• In colonial Kenya the office of the Chief Justice was exclusively occupied by British nationals. Before 1895, when Kenya was declared a British Protectorate, the country had no structured legal system. The territory was administered via the Imperial British East African Company. In 1896 the territory was known as the East African Protectorate. In 1920 Kenya Protectorate and Colony remained so up to 1963 when Kenya became an independent state. At independence, Sir John Ainley was the Chief Justice who presided over the swearing in of founding president, Jomo Kenyatta. He served until 1968 when he was replaced by Hon.Justice Dennis Farrel in acting capacity. The first African Chief Justice was the late Hon. Justice  Kitili Mwaliku Mwendwa who was appointed in July 1968-july 1971.The office was then taken up by Sir. James Wicks who served until January 1982 when Sir. Alfred Simpson.  
• Hon. Justice Chunilal B. Madan was appointed in October 1985 and a year later he was replaced by Hon. Justice Cecil Henry Ethel Wood Miller. Three years on was replaced by Hon. Justice Robin Allan Winston Hancox, who then served from 1989 to April, 1993. He was well known for the Kenya Appeal Reports (Hancox reports) published under his editorship. Hon. Justice Fred Kwasi Apaloo had distinction as he had served as Chief Justice in Ghana and was also appointed as Chief Justice in Kenya. He was then replaced by Hon. Abdul Majid Cockar who served until his retirement in 1977. He was then replaced by Hon. Justice Zachaeus Richard Chesoni who served until his untimely death in 1999. 
• Hon. Justice Chunga took over and resigned in 2003 paving way for appointment of Hon. Justice J. E. Gicheru. He came to the helm of the judiciary after serving as a judge in 1982 when he was appointed as a High Court and six years later he was elevated to the Court of Appeal where he served until his appointment as Chief Justice. Hon. Chief Justice Willy Mutunga replaced Hon. Justice Gicheru. Hon. Mutunga was appointed on June 16, 2011 after an unprecedented public recruitment exercise. Thereafter Hon Justice david Maraga then Hon.Justice From the pre-colonial to post-colonial period Kenyan Judicial system has transformed significantly to become what it is presently.

Why the Judiciary should be Independent:

• Under the newly promulgated constitution in 2010 Kenyan-Judiciary is independent because: The judiciary derives its authority from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the constitution [article 159(1)]. In exercising judicial authority the judiciary shall abide by principles stated in clause two this article has allowed traditional dispute resolution mechanisms which are in line with the Constitution. As the country consists of varied tribes and beliefs, their beliefs have been used to make law hence empowering the judiciary.
• The judiciary is independent as it has its own budget and its own fund, Judiciary Fund which has been provided for in the constitution under article 173 in the Kenyan constitution. The fund is administered by the Chief Registrar of the Judiciary. The fund caters for administrative expenses and any other function to necessitate the function of the Judiciary. This is well demonstrated in case of Gladys Boss Shollei vs. Judicial Service Commission: The applicant sued the Judicial Service Commission for what she termed as an unfair dismissal as Chief Registrar of The Judiciary. The   Court ruled that the petitioner had been unfairly dismissed by the respondent. In the case it was also held that the constitution is the supreme law of the Republic hence her constitutional rights had been violated in the process of her dismissal.
• In addition the Judiciary is independent as the judges are immune to dismissal from office except in cases as provided under Article 168(1) of the constitution of Kenya:

-Inability to perform the functions of office arising from mental or physical incapacity.

-A breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament
-Bankruptcy
-Incompetence
-Misbehavior or gross conduct

• A judge can make difficult decisions without fear of being sued: Fiat justitia ruat Caelum (let justice be done before the heavens fall) this maxim signifies the belief that justice must be realized regardless of consequences. This is backed by case law of Royer v Mignault in which a judge slandered a lawyer by making a derogatory remark about his abilities. The lawyer sued but the dumb judge was found to be immune from net of defamation liability because the utterance was made during a court hearing. To borrow from  Justice Allen  Sharp of the United States  District Court (Indiana) in Sims  v Kernan “The doctrine of judicial immunity affords state judges absolute immunity for past judicial acts regarding matters within their court’s jurisdiction, even if their exercise of authority is flawed by the commission of grave  procedural errors.”
• In accordance with article 166, the independence of the judiciary is well proven as it states procedure on appointment of the Chief Justice, the Deputy Chief Justice and other judges. Independence is assured where the Judicial Service Commission recommends names of persons to be potential Chief Justice and Deputy Chief Justice respectively. The other judges are appointed in accordance with the recommendation of the Judicial Service Commission to the president.  With approval by the national assembly and recommendations from the Judicial Service Commission is to check the president's appointments are not biased and also balance the relationship between the three arms of government the legislature, the executive and the judiciary.
• The Judiciary is independent because the tenure of office of the Chief Justice and other judges is protected by the constitution under article 167 of the constitution. Like the former Chief Justice Willy Mutunga  retired at the age of sixty nine this is in accordance with article 167 clause 2 where  it states that the Chief Justice shall hold office for a maximum of ten years or until retiring under clause (1), whichever is the earlier. With the Chief Justice being president of the Judiciar , it prevents interference from other arms of government.
• The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund – this is clearly stipulated under article 160(3). This is to ensure the judiciary remains independent and prevent judges from being corrupt and become impartial in the decisions they make in delivering judgments.
• For a judiciary to be considered truly independent it has to have its own budget. This is ensured by the constitution under article 173. This budget is approved by the National Assembly after submission by the Chief Registrar of the Judiciary. Hence this is to ensure the legislature checks on expenditure of the judiciary to prevent over expenditure as the Chief Registrar submits approximate expenditure of the Judiciary. A balance is also ensured to prevent the legislature from overruling the Judiciary by limiting it on monetary resources hence the term “checks and balances”.In conclusion the new constitution has provided for judicial independence which is a cornerstone among constitutions of developing countries especially in the wake of Kenya in process of leaving the ICC (International Criminal Court).

References 
The constitution of Kenya 2010
Klrc.org
e-lawresources.co.uk 

Cooperation in the EAC Common Market

 Cooperation in the EAC Common Market

Co‐operation is defined in Article 1 of the protocol for establishment of EAC to include the undertaking by the Partner States in common, jointly or in concert, of activities undertaken in furtherance of the objectives of the Community, as provided for under the Treaty or under any contract or agreement made thereunder or in relation to the objectives of the Community.

Scope of Co-operation in the Common Market is provided for in Article 5 where it states that the Protocol shall apply to any activity undertaken in cooperation by the Partner States to achieve the free movement of goods, persons, labour

, services and capital and to ensure the enjoyment of the rights of establishment and residence of their nationals within the Community.

The Partner states agree pursuant to paragraph 4 of Article 2 of this Protocol;

(a) Eliminate tariff, non‐tariff and technical barriers to trade; harmonise and mutually recognize standards and implement a common trade policy for the Community;

(b) Ease cross‐border movement of persons and eventually adopt an integrated border management system;

(c) Remove restrictions on movement of labour, labour policies, programs, legislation, social services, provide for social security benefits and establish common standards and measures for association of workers and employers, establish employment promotion centres and eventually adopt a common employment policy;

(d) Remove restrictions on the right of establishment and residence of nationals of other Partner States in their territory in accordance with the provisions of this Protocol;

(e) Remove measures that restrict movement of services and service suppliers, harmonise standards to ensure acceptability of services traded

(f) Eliminate restrictions on free movement of capital; ensure convertibility of currencies; promote investments in capital markets (stock exchange) eventually leading to an integrated financial system.

In the implementation of the Common Market, the Partner States further agree to:

• • Co‐operate to harmonise and to mutually recogniseacademic and professional qualifications;
• • Co‐operate to ensure protection of cross border investments;
• • Co‐ordinate and harmonise their economic, monetary and financial policies;
• • Co‐operate to ensure fair competition and promote consumer welfare;
• • Co‐ordinate their trade relations to govern international trade and trade relations between the Community and third parties;
• • Co‐ordinate and harmonise their transport policies and develop their transport infrastructure modes.
• • Co‐ordinate and harmonise their social policies.
• • Integrate environmental and natural resources management principles in the activities relating to the Common Market.
• • Ensure the availability of relevant, timely and reliable statistical data for purposes of the Common Market.
• • Promote research and technological development within the Community
• • Co‐operate in the promotion and protection of intellectual property rights
• • Promote industrial development for the attainment of sustainable growth and development in the Community
• • Sustainably develop and promote agriculture and ensure food security in the Community.

OTHER AREAS OF CO‐OPERATION IN THE COMMON MARKET 

This is provided for in Article 29-45 of the protocol for establishment of common market.

Article 29(1) States that the Partner States undertake to protect cross border investments and returns of investors of other Partner States within their territories.

• For the proper functioning of the Common Market, the Partner States shall co‐ordinate and harmonize their economic and monetary policies to ensure macroeconomic stability, sustainable economic growth and balanced development as provided in article 30.
• Article 31 states that for proper functioning of the common market the Partner States shall undertake to co‐ordinate and harmonize their financial sector policies and regulatory frameworks to ensure the efficiency and stability of their financial systems as well as the smooth operations of the payment systems. The Partner States shall ensure and maintain convertibility of their national currencies and promote the use of national currencies in the settlement of payments for all transactions within the Community.
• The Partner States undertake to progressively harmonize their tax policies and laws to remove tax distortions in order to facilitate the free movement of goods, services and capital and to promote investment within the Community as stated in Article 32.
• Article 33 Provides for the prohibition of Business Practices by partner states that adversely affect trade.
• Article 41(2) states that the Partner States undertake to develop and adopt harmonised statistical methods, concepts, definitions and classifications for organizing statistical work while duly observing internationally accepted best practices.
• Article 43(1) provides that the Partner States undertake to co‐operate in the field of intellectual property rights to: promote and protect creativity and innovation for economic, technological, social and cultural development in the Community and enhance the protection of intellectual property rights.
• Article 44 Co-operation in Industrial Development where the Partner States undertake to cooperate in the area of industrial development in the activities related to the production of goods and services in the Common Market, for the attainment of sustainable growth and development in the Community.
• Article 45 provides that the Partner States undertake to: sustainably develop and promote agriculture with regard to crops, livestock, fish, forestry and their products; and ensure food security in the Community through access to quality and sufficient food.

Cooperation under the EAC member states

Upon the dissolution of the East African Community, the three countries signed on the 14th day of May, 1984,  at  Arusha,  in  Tanzania  the  East  African  Community Mediation   Agreement 1984,  for   the   division   of   the   assets   and liabilities of the former East African Community. In the agreement, the three States agreed to explore areas of future co-operation and to make concrete arrangements for such co-operation. However, as one of the provisions of the Mediation Agreement, the three Member States Kenya, Tanzania and Uganda agreed to explore areas of future co-operation and to make concrete arrangements for such co-operation.

Provision was made by the Agreement for the Establishment of a  Permanent  Tripartite  Commission  for  Co-operation  Between the Republic of Kenya, the Republic of Uganda  and the United Republic  of  Tanzania  for  the  establishment  of  the  Permanent Tripartite Commission  for  Co-operation  to  be  responsible  for  the  co-ordination  of  economic,  social,  cultural,  security  and  political issues  among  the  said  countries  and a Declaration  was  also made by the Heads of State of the said countries for closer East African Co-operation. Subsequent meetings of the three Heads of State led to the signing of the Agreement for the Establishment of the Permanent Tripartite Commission for East African Co-operation on 30 November 1993.

The Treaty for Establishment of EAC also provides forOperational Principles of the Community under Article 7. The principles that shall govern the practical achievement of the objectives of the Community and some of the principle include:

1. - The principle of variable geometry which allows for progression in cooperation among groups within the Community for wider integration schemes in various fields and at different speeds;
2. - The principle Asymmentry means the principle which addresses variances in the implementation of measures in an economic integration process for purposes of achieving a common objective.
3. - The principle of Complementarity which means the principle which defines the extent to which economic variables support each other in economic activity.

Non-cooperation hurting EAC integration

Regional integration and development within the East African Community (EAC) is being undermined by a failure of member states to cooperate on key issues. Speaking in Arusha, Tanzania, Bernd Schmidt, the Deputy Programme Manager GIZ, said political openness among member states was required if integration is to be deepened, suggesting that the envisaged single currency and political confederation cannot be achieved if the successes of the Customs Union are not safeguarded and the Common Market is not pushed any further.

The key issues hindering the acceleration of economic growth and development for the people in the region is the 

• Restricted movement of goods, services and persons including the right of establishment and the right of residence. 
• Trade has also been declining for over four years now. You might get the impression that some East African leaders together with their administrations are happier to import be it soap, sugar, biscuits, or pharmaceuticals from Asia, North America or Europe than to support existing small firms from within the region; firms that create more of the desperately needed jobs and wellbeing among let me say brothers and sisters,” he said.

Nationalist sentiments in the region have become stronger. They seem to have become stronger worldwide. But that does not make the situation any better. Each month, it seems, the EAC Partner States increasingly behave like competitors and not like partners. Regularly we must read -or the press has to report- about new trade barriers be it in the form of tariffs or of non-tariff barriers to trade.

The media, has duty to inform the public about the opportunities, achievements and challenges the community faces because the East African integration is not only key to the sustainable economic success of the partner states but also to peaceful development and cooperation among East Africans.

Presently,there are more challenges facing the community but there’s hope that partner states will improve so that the benefits could be achieved later.

ARE BONDS A GOOD INVESTMENT?

ARE BONDS A GOOD INVESTMENT?

On matters investments, the stock market often takes the spotlight, with its tales of quick wealth and overnight success. However, bonds offer a different appeal, known for their stability and security, making them a staple in many investors' portfolios.

• Bonds provide a reliable income stream, often paying interest semi-annually. Holding a bond until maturity ensures the return of the principal amount, making them attractive for capital preservation.
• Investing in bonds can offer a steady income even before maturity through interest payments. Many retirees choose bonds to secure a portion of their portfolio while generating income to cover daily expenses. For example, investing Ksh.10 million in bonds could yield Ksh.1.28 million annually, providing a substantial monthly income without touching the initial investment. Treasury bonds (T-bonds), backed by the Kenyan government, offer a reliable option for investors nearing retirement or seeking stable returns.
• Bonds, including T-bonds, function as debt securities issued by entities like corporations and governments to raise capital. Investors receive fixed interest payments periodically until the bond matures, at which point they get back their principal investment.
• T-Bonds: Longer-term loans, repaid over 1 to 30 years unlike T-Bills: Short-term loans, repaid in 91, 182, or 364 days

How to Invest 

• Open an account with the Central Bank or a bank, then bid for securities in auctions. 

• T-Bills: Short-term investments, mature in 91, 182, or 364 days.T-Bonds: Medium- to long-term investments, mature in 1 to 30 years.Both are secure investments managed by the Central Bank, offering consistent returns over time. 

• T-Bills: Auctioned weekly, offer competitive returns (10% to 12%) for investments starting at around Ksh.100,000. Interest is paid upon maturity. 

• T-Bonds: Auctioned monthly, provide semi-annual interest payments, and are usually tax-free.

 Who Can Invest: 

• Anyone over 18 with a Kenyan bank account can invest directly or through a bank. 

• M-Akiba: Introduced in 2015, allows investments from as low as Ksh.3,000, making government securities accessible to more people.

 Investment Process 

• Open an account with the Central Bank or a commercial bank, then bid for securities through auctions. Interest is paid upon maturity.T-Bonds: Auctioned monthly, provide semi-annual  Anyone over 18 with a Kenyan bank account can invest directly or through a bank.

In summary, bonds particularly T-bonds, can be an attractive option for those seeking a steady income stream and capital preservation in their investment portfolio.

Difference Between Treasury Bills and Treasury Bonds:

Treasury Bills and Treasury Bonds are both fixed-income securities, but they have some differences in how they work.

Similarities:

• Both are ways for the government to borrow money from the public.
• Investors receive fixed interest payments over a set period of time.

Differences:

• Structure:Treasury Bills: Issued for short periods, typically 91 days, 182 days, or 364 days, to finance short-term expenses like salaries.Treasury Bonds: Issued for longer periods, usually years, to fund various government projects.
• Returns (Interest Rate):Treasury Bills: The longer the period (e.g., 364 days), the higher the returns.Treasury Bonds: Offer fixed interest payments every six months until maturity.
• Minimum Investment:Treasury Bills: Require a minimum investment of Ksh.100,000. Treasury Bonds: May have different minimum investment requirements; Opening a CDS account with the Central Bank is necessary. Treasury Bills are typically issued weekly, with details available on the Central Bank Website.
• Difference in Maturity Period:Treasury Bonds mature over 1 to 30 years, while Treasury Bills mature within a year (91 days, 182 days, or 364 days), offering short-term security.
• Investment Comparison:Imagine you have Ksh.100,000 to invest for one year in either Treasury Bills or Treasury Bonds, both yielding 10% annually.With a Treasury Bond, at year-end, you receive your Ksh.100,000 principal plus Ksh.10,000 interest.With a Treasury Bill, the interest is paid differently, using a concept called discounting.Discounting Concept (Illustrated with Mary’s Sweater Purchase):Mary wants to buy a Ksh.2,000 sweater but agrees to pay Ksh.1,800 upfront due to it being out of stock, receiving a Ksh.200 discount.Similarly, investing in a Ksh.100,000 Treasury Bill requires paying approximately Ksh.90,000 upfront.This Ksh.10,000 discount compensates for leaving your money invested for a year, just as Mary received a discount for waiting.
• Face Value and Discount:The Ksh.100,000 represents the face value of the bond.The discount received depends on the term chosen; longer terms yield higher discounts.For instance, a six-month Treasury Bill may offer around Ksh.5,000 discount.
• Investment Objective:Treasury Bills are safe, offering an alternative for short-term parking of funds rather than seeking high returns.For funds not needed for at least three months, Treasury Bills offer higher returns compared to typical savings accounts.
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