Justice under siege: The rule of law and judicial subservience in Kenya

This article frankly and critically discusses and analyzes the state of the Kenyan judiciary and the problems that beset it in acting as the custodian of the rule of law. The article argues that the judiciary has been subservient to the executive. The judiciary has shown no ability or inclination to uphold the rule of law against the express or perceived whims and interests of the executive and individual senior government officials, their business associates, and cronies. The government has acted swiftly and expeditiously to discipline or dismiss individual judges and magistrates who occasionally have failed to carry out its wishes. The judiciary has ruled consistenly in favor of the KANU elite and its supporters in cases involving their corrupt practices and political interests. In fact, the judiciary has been only too eager to protect the political monopoly of the KANU. State officials and business associates of leading public servants have sought the protection of the legal system and the judiciary for their illegal actions as official corruption has become the norm. An aggrieved party cannot expect the rule of law to be upheld by a Kenyan court if the offender is a public official or actions of the KANU ruling elite and its surrogates. This article concludes that nothing short of radical surgery of the norms, institutions, and personnel that comprise the legal and political strucutres of the Kenyan state can restore the judiciary's role as the guarantor of legality and the guardian of human rights.