The Impact of post-retirement careers and executive appointments on judicial independence of current judges in Kenya

Abstract

Judges constantly face actions from the Executive that undermine their judicial independence. In the recent years Kenya and the rest of the world have placed measures meant to prevent the Executive from controlling the Judiciary. Such measures include inclusion judicial independence in constitutions and international conventions, secure tenure and creation of institutions that regulate the nomination and confirmation process of Judges. These measures have succeeded in protecting the independence of the Judiciary. The means used by the Executive in attempted to control the Judiciary have however evolved requiring that the protection given to the Judiciary be strengthened as well. This paper focuses on the influence of Executive employment decisions, particularly the appointment of retired judges, on current judges within the Judiciary, as one of the methods employed by the Executive to gain control of the Judiciary. To achieve this, this paper discusses the judge as person as the conceptual underpinning of the study. The paper discusses judicial independence to understand its meaning, its application in Kenya and both recent and past attempts and response by the Judiciary to undermine judicial independence. It also discusses the effect the appointment of retired judges has on decision making of judges within the Judiciary. Lastly it recommends adoption of laws aimed at controlling the employment opportunities of judges. The recommendations are drawn from nations with laws that control the employment options of judges while balancing the right to employment held by retired judges.