Every organ of government and every resident of Kenya is subject to the application of the law. No person or government is beyond its reach. This principle is often called the “rule of law” and is important in a democratic system of government. A former Secretary General of the United Nations has defined the rule of law as follows:
It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.
The independence of individual judges, who are tasked with interpreting and applying the law in specific cases, is a very important part of this principle.
A famous English judge said that “Justice must be rooted in confidence.” He was referring to the confidence litigants and the public must have that judicial decision-makers are impartial. Those who come before the courts must be certain that decisions made by those courts are not subject to outside influence.
Judicial independence means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law.
Judicial independence is often misunderstood as something that is for the benefit of the judge. It is not. It is the public’s guarantee that a judge will be impartial. The principle has been expressed this way: