The need for an efficient and effective Judiciary, capable of managing conflicts in due time, has resulted in the increasing attention to courts’ performance and administration, which affects not only the Judiciary, but also individual judges
BY EDWIN WANJAWA
On November 27, 2020, the Chief Justice David Maraga issued his last State of the Judiciary Address. Among other things, the president of the Supreme Court bemoaned the emasculation of the independence of the Judiciary, a factor to which he attributed the stymied performance of the Judiciary toward the tail end of his watch.
Why is the independence of the judiciary sacrosanct in a just and prosperous society?
The Judiciary plays a fundamental role in society and for the upholding of social order. Its primary function, in fact, is to resolve conflicts through the application of pre-existing norms and traditions or, in some cases precedents, which have been issued through legitimate procedures, as recognized by the political system. In arbitrating disputes, judicial officers are subject to the law, meaning that their decisions are based on the application of the law, as issued by Parliament and/or by other legitimate sources provided for by the governance system. The law is a product of society and should reflect societal expectations. For these reasons, judicial decisions can be considered the product of the whole society.
The 21st century has been characterized by a quantitative and qualitative expansion of judicial power, which has dramatically increased the political relevance of the Judiciary. On the one hand, the Judiciary has dramatically broadened its domain of arbitration. The diffusion of legislation protecting a wide range of social and economic interests has generated ever-increasing occasions for citizens to resort to the courts for the protection of their rights on a wide range of matters such as human rights, health, social security, education, labour, family and commercial relations as well as consumer rights. The workload of the court has increased considerably, and the work of the Judiciary has become far more complex, having a strong impact on a number of crucial issues directly or indirectly affecting the social, moral, political, and economic environment.
On the other hand, greater emphasis has been given to the creative character of the judicial function. Far from being a simple activity of applying the law to a concrete case, the adjudicative power of the judge has an intrinsically creative character. Some degree of creativity and discretion is inherent in any kind of act of interpretation, whether of case law or statute. Judges can, therefore, be considered political actors, to a certain extent, on account of the discretionary scope of their decision-making.
The expansion of judicial power has increased the relevance of the functions that are rendered to society. Freedom, peace, order and good governance – the essential goods of the society – depend, in the ultimate analysis, on the faithful performance of judicial duty. On many occasions, judges are also called upon to address broad issues of social values and controversial moral issues, and to do so in increasingly pluralistic societies. Thanks to the action of the Judiciary, the protection of fundamental rights has become a reality in our society. Judicial decisions and case law also contribute to the evolution of the legal culture with respect to new frontiers and challenges.
Judges also play a fundamental role in promoting the social and economic development of a society. The Judiciary, in fact, is a fundamental building block of sustainable peace and has important functions in preventing and mitigating conflict, crime, and violence, which are major barriers to development. In developing countries, for example, the control of violence has the strongest correlation to economic growth and the Judiciary is crucial in this respect, in terms of providing both legitimate processes for the resolution of grievances that might otherwise lead to conflict, and disincentives for crime and violence. The Judiciary also serves to foster private sector growth in compliance with legal and regulatory frameworks: it enforces the rules that govern business transactions and plays a central role in determining how the costs and benefits of private sector activities are distributed.
Finally, contemporary institutions including judicial ones are increasingly faced with problems concerning their efficient functioning, and the modernization of their services. With the rising number of cases brought to courts, several countries are confronted with the question of how to guarantee and/or enhance the efficiency of the justice system, identifying new steering mechanisms without compromising independent adjudication. The need for an efficient and effective judiciary, capable of managing conflicts in due time, has resulted in the increasing attention to courts’ performance and courts’ administration. This affects not only the Judiciary as whole, but also individual judges.
How can judicial independence be secured in concrete terms? Judicial independence and impartiality would be mere optics without sufficient political and legal-operational guarantees for their realization. Basic political guarantees generally include a democratic political system, committed to the rule of law. Legal-operational guarantees ensure that the position of judges and courts in the structure of public power is determined in such a manner as to prevent the exertion of influence on judicial activities.
The alternative to an independent Judiciary is the Hobbesian state of nature in which life is solitary, brutish, nasty and short.
Edwin Wanjawa teaches in the School of Humanities and Social Sciences, Pwani University.