VII.

THE INDEPENDENCE OF THE JUDICIARY*

1. INDEPENDENCE OF THE JUDICIARY IN CONTEXT

he imperatives of legality in community affairs demand the civilised

resolution of dispute, in a manner uniquely amenable to the judicial
method. Ronald Dworkin thus amplifies the point:
"We live in and by law. It makes us what we are: citizens and employees and doctors

and spouses and people who own things. It is sword, shield, and menace: we insist
on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed
up in jail, all in the name of what our abstract and ethereal sovereign, the law, has
decreed... We are subjects of law's empire, liegemen to its methods and ideals..."I

Dworkin, in making those remarks -clearly based on the Western expe-

rience of law and legality- was certain (as can be read from his whole work)
the continual agent of law~making was the Judge. It is relevant, in this regard,
that some two decades earlier the American scholar, Professor John P. Dawson
had authored another classic2 concurring with the English scholar William
Blackstone, that Judges were "the depositaries of the law, the living oracles."3

That this scenario of law, legality and the judicial role is universal may be
illustrated with a vignette drawn from my own experience at the Kenyan High
Court Bench.
In a criminal appeal4 that came up before me, the appellant had been
charged, alongside his five siblings, with the offence of malicious damage to
property contrary to Section 339 of the Penal Codes. The particulars were that

* The original version of this chapter was presented at the conference on the Independence of
the Judiciary in Sub.Saharan Africa, Entebbe, Uganda, June 24~28, 2008.
R. Dworkin, Law's Empire (London: Fontana Press, 1986), p. vii.

J.P. Dawson, 17re OTcicles o/ the Lew (Westport, CT: Greenwood Press, 1968), p. xi.
See W. Blackstone, Comm€ncc{ties on the Law o/ Enghand, vol. I, p. 69.
Stephen Njoroge Kciri%kj u Repwbljc, Nairobi High Court Grim. Appeal n. 600 of 2005.
Cap. 63, Laws of Kenya.
 Ascendant Judiciary in East Africa
118

the accused persons, on 8th June, 2004 at Gitaru Village in Kiambu District,
wilfully and unlawfully damaged a dwelling house valued at Kshs.250,000/=
the property of the complainant. The complainant contended that the said
house had been bequeathed to her by her deceased father; but her siblings
denied this claim of inheritance, insisting they could jolly well demolish the
houseasthey,ratherthanthecomplainant,hadraisedthemoneyforthecosts
of construction.

Quiteclearly,thedemolishedhousewaspartoftheestciteofthedeceased;
but the succession question had not (yet) been the subject of Court procee~
clings. From the evidence, the complainant and her son were already using
the said house, though this was not to the liking of her siblings, the accused
persons. Even if the appellant (who had been convicted by the trial Court)
had a legitimate interest in the subject~house, was it lawful for him and his
co~accused to undertake wanton destruction of property that ought to be the
subject of succession proceedings? The Court dismissed the appeal, uphol~
ding the conviction, in its determination of legality, in the following terms:
"After considering all the evidence in this case, I have come to the conclusion that

it is common cause the subject house was part of the estate of the deceased. Since
no probate and administration case had as yet been dealt with by a court of law,
it follows that no member of the deceased's family could have asserted a right of
ownership with finality, over the house. Final rights would only be known after a
decree of the probate and administration court has been issued. The significance
oftheforegoingpointisthatnomembersofthedeceased'sfamilyhadlegalrights
to engage in an operationally~final act, such as demolishing the house in question.
Doing so would have been unlawhl, even if [the complainant] did not have a
complaint to make.
"Demolitionofthesubjecthousewasdoublyunlawfulbecause,fromtheevidence,

[thecomplainant]hadlegitimateclaimstouchingonthehouse:shehadpossessory
claimsinrelationtothesubjecthouse.Suchclaimscouldnotbedefeatedbyforcible
action - the act of demolishing the house and sharing out extracts there from.
"Thiscourtisguidedbytheruleoflaw;andtheruleoflawdictatesthat,onproperty

uponwhichaninnocentclaimofwhatevernatureisbeingmadeby[somebody],the
said claim is not to be nullified by a different person by means of sheer violence,
without recourse to lawful procedures - such as peaceful request, negotiation,
proper notice, or judicial settlement.
``Byviolentactionuponthesubjecthouse,withoutregardtotheclaimedinterests

of [the complainant and her son], the appellant and his colleagues were involved
The Independence of the Judiciary 119

in an unlawful act; and their brazen challenge to the complainant's claims, without
regardtothepossiblevalidityofthoseclaims,wasevidenceofthemaliciouselement
in the demolition of the house."

2. THE PROBLEM OF PUBLIC POWER, AND THE CASE FOR AN

INDEPENDENT JUDICIARY

Public power takes many forms, and is presumptively exercised by virtue

of constitutional authority, and in the public interest - its main agency being
the Executive Branch of government. For a brief picture of the nature of these
powers, I may draw from an earlier study:
"The foremost characteristics of the Executive, as the main repository of public

decision.making in any country, are: the commanding role in matters of war and
peace; the management of international relations...through diplomatic initiatives;
the authority in respect of internal order...[Practical factors], however, have placed
various other items on the Executive's agenda, and notable in this respect are
responsibilities in matters of economic and social welfare."6

Such powers by their very nature, are not only ill/defined, but also far-
reaching; and while in motion are so easily abused, or annexed for partisan, or
personal ends! And whenever that happens, the resulting damage falls upon
either the public interest, or the individual, or both. Where the public inte-
rest is the sufferer and it lacks the legal personality to seek specific redress, it
becomes a diffuse public claim, to be resolved by the electorate at periodic
elections, or to be scrutinized by the elected Parliament during its sittings.
But on many occasions, the victim of abuse of public power is the citizen.
The citizen has no capacity to move the nebulous electorate, or the cumber-
some Parliament, to solve his or her grievance. It is the Judiciary that comes
in handy, as a structured institution, at which a claim can be lodged at the
registry, and set for hearing before a Court, within a determinable period; and
the Court is invested with jurisdiction and power to determine the question,
and issue binding decrees. The exercise of public power is accountable to the

6 I.B. Ojwang, Comstitwtjoi,t4l Devefopmenc tn Kerty¢: J7tstftwcion¢l Adrpc¢tt6n and soct¢! Change o{ai+
robi: Acts Press, 1990), p. 96. Further relevant perspectives on this point are set out in L.G.
Franceschi and J.B. Ojwang, "Constitutional Regulation of the Foreign Affairs Power in Ke.
nya: A Comparative Assessment" in Jot4m¢l Of Afrccm Lew, vol. 46 n.1 (2002), pp. 43/58.
 120
Ascendant Judiciary in East Africa

electorate and the legislature only in the long and medj%m terms; but in the
shortterm,andwithintheconstitutionalset~up,theindividualcanonlylook
to the Judiciary, for redress.
Although the position of the individual citizen is weak and vulnerable,
he or she can only look up to the Judiciary as an emancipator where certain
systemic conditions exist. Firstly, the citizen has to trust that the Court's jud~
gement has finality, and is entitled to obedience, as a matter of constitutional
obligation. Then the citizen has to trust that the Judiciary shall be guided by
rules, principles and discretions not influenced by the very power~wielders
who cause oppression or other harm. That is to say, the citizen expects the
Judiciary to be independent, in its decision~making. And lastly, the citizen
expects the Judiciary to be fair, in its decision-making. All these attributes
underline one theme, independence, as the hallmark of the Judiciary, in a
constitutional set~up that protects the citizen as an individual, even as the
nation's broad social goals are pursued by the relevant public agencies which
are driven by a political~cum~administrative mandate.

Ascompared,therefore,totheotherorgansofgovernment,theJudiciary
mustbewell~anchoreduponafoundationthatdoesnotflinchatpangsinflic~
ted by the public power, nor pander to attractions of things allied to such
power;thatfoundationsitsinthestableoflaw,andlegality;itconstituteswhat
Ronald Dworkin calls "The Law's Empire."
Thevalueofjudicialindependenceisnotlimitedtotheprotectionofthe
citizen from power~abuse; it also feeds into the general quality of governance,
andoftheinterplaysofthedifferentorgansofgovernment.Thisprincipleis
expressed in The Bangalore Principles of Judicial Conduct:
"Ajudiciaryofundisputedintegrityisthebedrockinstitutionessentialforensuring

compliance with democracy and the rule of law. Even when all other protections
fail, it provides a bulwark against any encroachments on its rights and freedoms
under the law."7

The judiciary addresses the problem of public power, firstly, when

the individual challenges a particular exercise of such power by virtue of
constitutional guarantees, or of the provisions of statute law. But, secondly -
andmoreimportantly-thejudiciarydealswiththisproblembyitsprocedures

7 March, 2007 edition.

 121
ofrevlewofadministrativeaction.Thisisawell-recognisedsphere
~.+~,I.uiiidirunctionisdefined;8andthefollowingpassagetakenfromD.M.
the judicial function is defi.mJ.8 h~Ll ' " .. ~„ .Liugiiit;ea sphere in which
Davis'sarticleentitled"AdministrativeJusticeinaDemocraticSouthAfrica",
gives an adequate depiction:
"The classic judicial approach to review is based on the propositlon that

administratlveagenciescanberenderednon~threatenlngtoademocratlcencerprise
provldedtheyaremadeaclequatelyaccountabletotheru]eoflaw..."9

The7udiclalreviewjurisdictionisgenerouslyemployecl,inthecommon
lawcountriesinparticular,tosubjectperceivedirregulariciesincheprocess
ofadministrativedecision~makingbypublicofficialsorpublicbodies,tothe
terms of the law.

3.PUBLICPOWER:ITSLINKAGESTOPOLITICALSCENARIOS,
AND ITS PARTISAN NATURE

3.1.The``ExecutiveStall"anditsways

For7ucliclalindependence,publicpowerisproblematicfromtwostand~
points-thefirstofwhichhasalreadybeenconsidered.VAerepubllcpower
takesperceptiblemanagementandadminlstrativeform,ltsmalnramifica~
tions,onthenegativeside,are:(a)whetheritinvolvesadlstortionofpres~
cribedprocedure,andseekstobenefitasubjectlvecause;and(Dwhecherit
oppressesanddeprivestheindividual,inonewayoranother.Suchinjurlesof
publicpowerarepreciselytheonestheJudiciaryhasendeavouredtosetright.
Itisbyvirtueofthefactthatthelinesofproprietyhavebeenprescribed,and
sotheJudiciarycanreadilyholdchepower~wielderstoaccount.

Theseconddimensionofpublicpower,however,ismoreintrinsicin
thesocialinstitutions,andithasnotlentitselfreadilytothefiitti.nry,Ial~--'
the recognised |epaJ farLh..~---
_._I +L„i iiticir reac[ily to the cutting~edges of
[nerecognisedlegaltechmques.Notonlyhasthisdimensionofpublicpower
`t
escapedjudicialcontrol,by~and~large,butmoredisturbingly,ithastakencom~

ThissubjectisconsideredinmoredetailinChapter3ofthisbook.
____I.u ,ti iiiore detail in Chapter 3 of this book.
9 nDa nM(eBsay,lsd;`£[:oT,;:;S;;abtzLz¥epJouwset:Ci]dnm:n?s:tt¥t?„Cer;:Ct7:€°
D.M. Davis, "AdmjniQtra+..w^ I ---.
#o#] C£;?cHap?°Trod: a ;dn:ve¥s::eonf

Cape Town, 1995), p. 23.

122 Ascendant Judiciary in East Africa

mand of the very sources of the momentum of public institutions, and has
had impacts even upon the character of the judiciary itself.
We are concerned with the creation of leadership, in relation to the Le-
gislature+cum-Executive, and in relation to the Judiciary.
Leadership of the Executive Branch has emerged in tandem with the
process of electing a Legislative Branch. But, electing a Legislative Branch
is a function dominated by the partisan interests which have sprung up, by
their unregulated dynamics, from the grassroots. The partisan interests that
brought forth the parliamentarians, a number of whom then graduated to the
"Executive Stall", remain alive, through and through. (It is notable, in this

regard,thatKenya'snewConstitutionbydrawingalineofseparationbetween
the Legislature and the Executive, will have somewhat mitigated this historical
condition of partisanship).
Then, how is the judicial cadre brought into being? Not directly from
the grassroots. Indeed, the judicial calling is more elitist; it takes considerable
learning and specialisation. So the judicial cadre has been sourced by "some-
body"; and the partisan stand characterising those in the "Executive Stall"
could not have been entirely indifferent, as the judicial cadre was being selec+
ted. (Such was always the case in Kenya's entire history from the colonial days
in the nineteenth century to 2010, when the new Constitution prescribed a
new mode of recruitment, namely, the competitive public interview before the
Judicial Service Commission).10
This carries a danger for the cherished principle, independence of the ju.
diciary. Is the judicial cadre likely to want to do one good turn to the partisan
interests that selected it? If yes, then judicial independence will have suffered
a set-back - and the sufferer would be the individual who is being oppressed
by public power; or the public interest which is being relegated to the goals of
partisanship, at the seat of public power.

3.2. Developed and developing/country scenarios

Partisanship in relation to the constitutional set-up, means something

different in the developed, industrialised nations, from what it means in the

'° The Constitution of Kenya, 2010, Article 172 (1) (a); the Judicial Service Act, 2011 (Act n.1 of
2011), s. 30.
 The Independence of the Judiciary
123

relatively~new States of Sub-Saharan Africa. The following passage in an ear~

lier work" will shed light on this point:
"The prevailing philosophy in Western countries is that political parties `provide

alternatives upon which the life of the State can be moulded and shaped'[2. This
may be regarded as a fundamental premise to the development of governmental
institutions. Upon it, structures have been evolved which take the form of legal
phenomena.Thusoneperceives,evenatthispreliminarylevel,thatthepartysystem
forms part of the fundamental assumptions that are attached to the constitutional
and legal set-up."

Partisanship in the industrialised and urbanised countries, is essentially

atermthatdefinesdifferencessparkedbysocialandeconomicforces;bypros~
perity or lack of it. But in the developing countries where there are many
more factors of social differentiation, partisanship has numerous racial, eth~
nic, cultural, religious, familial, generational, gender, inspirational etc. dimen~
sions.

The partisanship at the "Executive Stall", therefore, which may influence

the form and shape of the judicial cadre, is different in Africa from what it is
in the economically-advanced countries of the West.
How far will the partisanship of the Western countries impact upon the
prevailing notion of independence of the judiciary? And what would be the
position in the countries of Africa? This will remain a matter for conjecture.

4. THE CONVENTIONAL SAFEGUARDS FOR JUDICIAL INDEPENDENCE

The political challenge to judicial independence aforementioned is to be

found in all countries, but the Western countries, with their more structural
and more institutional foundation to partisanship at the ``Executive Stall",
have a more rationalised safeguard~scheme for that constitutional principle.
In those countries, judicial independence is perceived as a vital pillar in the
constitutional order; and so, undermining this principle will raise a political

11 I.8. Ojwang, Cbustt.ttfciotta! Devebpmer[c in Keny" Jnsfi."cional Adepta)c}on and Socicil Change (Nai~

robi: Acts Press, 1990), pp. 4243.

12 I. Brenneke, "Introduction" to M. Neuber (ed.), Th Lew on Poljcjccl! Pclrties: Docttments on Po!i.
tiesandSoci.etyi.ncheFedetifllRep%6licofG€7tmanz3rded.(Cologne:InterNationes,1986),p.5.
 124 Ascendant Judiciary in East Africa

question which, in the electoral democracies of the countries concerned, may

work to the detriment of those who contest its status as a safeguard for the
people's rights.
Such a position may be gleaned from works of scholarship. R.W.M. Dias
in his classic work, Jurisprudence]3, remarks:
"[E]very constitution has to be interpreted, so the effectiveness of its restraints rests

ultimately with the interpreters, i.e., the judges and the measure of their sympathy
with and independence of government."

Dias further observers:

"The success or failure of judicial control of the abuse of power, whatever form such

control may assume, depends on the judges being independent of those wielding
the power. Independence means far more than immunity from interference; it
means that they are free to bring their own sense of values to bear in considering
legislation and do not simple reflect the values of government. For there can be
no protection against abuse of power, even when safeguards are enshrined in the
Constitution, if the judges who have to interpret these whenever the government is
challenged are only puppets of the government."

The leamed scholar squarely touches on the dangers to constitutional

principles, where the judges are beholden to the "Executive Stall" and will not
determine matters before them in accordance with their own sense of right.
In the same strain, Dennis Lloyd (later Lord Lloyd of Hampstead) in his
classic, The Idea of Low, wrote..
"The notion that the third arm of the constitution, the judiciary, should be entirely

separate from both the legislative and the executive powers, seemed... to be based
on more solid foundations than the somewhat arbitrary division between the
legislature and the executive. Two principles could in this instance be invoked,
each of which might be regarded as entitled to a good deal of weight. In the first
place there is the question of the independence of the judiciary. If the laws are
to be fairly interpreted and impartially applied it is obviously important that
the judiciary should enjoy an independent status and be free from the political
pressures engendered by association with either the executive or even the legislature
itself, dominated as the latter is likely to be by the divisions of party politics."]5

13 R.W.M. Dias, J%r{sp"dence, 4th ed. (London: Butterworths, 1976), p. 128.

14 |bid„p.129.

]5 D. Lloyd, The Idea of Lew (London: Penguin Books,1973), pp. 256~257.

. i.;i.::. .
 The Independence of the Judiciary
125

AndLordDenningofwhitchurchreposeshistrustincheJudge,solong
as the Judge functions independendy:
"[Thejudges]shoulddevelopthelaw,casebycase,astheyhavedoneinthepast:

sothatthelitigantsbeforethemcanhavetheirdifferencesdecidedbythelawasit
shouldbeandis,andnotbylawofthepast."16

With judicial independence thus perceived, and with the obvious awa~
renessofthepartisanthreatstothehallowedprinciple,theWesterncountries
haveadoptedcertainsafeguards,toprotectitfromcompromisesemanating
from the "Executive Stall". These include -
1. In respect of the mode of appointment of judges.
2. Providing for tenure for the judge.
3. Collective concunence on a candidate for appointment as judge.
4. Commitment to the governing ethos of judicial independence.
5. Absolute care in the regulation of terms of service and promotion,
for judges.

LordLloydofHampsteadhasconsideredtheapplicationoftheseseveral
criteria, in relation to his country, Great Britain. He notes as follows, and in
relationtoeachoftheforegoingfivepoints:
1. Experience shows that Great Britain has achieved the "development
of a strong tradition in favour of ignoring political considerations
when making judicial appointments.""
2. Judges hold office until retirement.[8

3. Appointment of judges is the outcome of concurring opinions.[9

4. Operation of a governing ethos of judicial independence.20

5. A judicious approach to terms of service and to promotion.2]

`6 A.T. Denning, Th Discip!i.ne of Lew (London: Butterworths,1979), p. 40.

]7 D. Lloyd, The Jdeo of Lew (London: Penguin Books,1973), p. 257.
18 |bjd.,p.258.

19 Ibid.

20 Ibid.

21 Ibid.
 Ascendant in East Africa

126

Andonthispoint,ofpromotionandtermsofservice,theleamedauthor
writes,
"Thequestlonofpromotionisalmostaslmportantasthatofinitialappomtments

inregardtoiudicialindependence.Forifthe]udlciaryhastolookforitsfuture
prospectstothepoliticianstheymaybeunwillingtoi.ncurexecutivedispleasureand
somarthechancesoflaterpromotion,eventhoughtheyaresecureintheirposts.
1nEnglandthisdifficultyhasbeenlargelyovercomebyavoidingtoohlerarchicala
pattemlnregardtothehigherjudiclary.Acertamunlformltyofstatushasbeen
retainedinregardtoallthehigheriudiciaryfromtheHighCourtleveltotheHouse
of Lords,particularlybykeepingsalariesonalmostthesamelevelthroughout
andbyavoidmganyformofpromotiononthebasisofseniority.Thissystemhas
beengreatlyaidedbythehistoricalantecedentsoftheEngllsh]udiciarvandits
exceptionallystrongtraditionsandlong~establlshedstatus."

5. JUDICIAL INDEPENDENCE IN THE AFRICAN CONTEXT,

AND THE KENYAN SET.UP

5.1. The challenges of the African context

ltappears,fromtheforegoingaccount,thattheprizedobjectiveofjudicia1
independenceislikelytobeachievedonlypiecemealintheAfricancountries,
ascontrastedwiththeeconomically~advancedcountriesoftheWest.Inmost
Africancountries,theverydiversesocialconditionsignificantlycomplicates
thepoliticalprofile,bringingforthamuchvariedschemeofpartisanshipat
the"ExecutiveStall";andsuchasettinghasthepotentialtogreatlycompro~
misethescopeforarealisationofindependencefortheJudiciary.Foreachof
thepartisanelementswillbeseekingtoinfluencetheactionsatthe]udicial
plane;theethossupportiveofthenormsof]udicialindependencewillbe
largelyenfeebled;informedanddiverseconsultationbeforetherecruitment
ofthejudicialcadreislikelytobeminimal;princlpledregulationoftermsof
service,andofpromotion,mayalsobelacking.Thus,thespecialsocio~politi~
calfactorswhichintheWesternsocietysustai.nthecommitmenttotheprin~
cipleof]udicialindependence,maynotcomfortablyco~existwiththetypical
African political condition.

22 Ibtd.

•=tt.....
 127
The Independence of the Judiciary

Yet at intemational fora of deliberations, such as the multi~1ateral treaty~

makingevents,andatinternationalbodiessuchasthelnternationalCommis+
sion of Jurists, the typical African country will stand with other States, and
extol the virtues of judicial independence. But in operational terms, judicial
independenceinAfricaislikelytodependinparticular,firstly,onthelimited
technicalsafeguardsspecifiedinnationalConstitutions;andsecondly,onthe
competenceandpersonalintegrityoftheindividualJudge.

5.2. Independence of the Judiciary in the Kenyan context

Notwithstanding the uncongenial institutional conditions in which, in

Africa,theindependenceoftheJudiciarymustbeestablishedandsustained,
Kenya by its new constitutional dispensation" has taken a bold initiative by
affirmingthisconceptinobligatoryterms.Article160(1)oftheConstitution
provides that:
``In the exercise of judicial authority, the Judiciary shall be subject to this

Constitutionandthelawandshallnotbesubjecttothecontrolordirectionofany
person or authority."

The Constitution institutes safeguards against any such undue influence

as may affect the recruitment process, by providing that the appointment of
boththeChiefJusticeandDeputyChiefJusticebythePresidentistobebased
on the recommendation of the Judicial Service Commission and the appro~
val of the National Assembly;24 whereas the appointment of all other Judges
is to be "in accordance with the recommendations of the Judicial Service
commission."25
The role of the Judicial Service Commission in that regard is by no
means perfunctory; by Article 172, this Commission is required to "promote
and facilitate the independence and accountability of the Judiciary and the
efficient, effective and transparent administration of justice."

23 The constitution of Kenya, 2010.

24 |bid., Article 166 (1) (a).
25 |bid., Article 166 (1) (b).
128 Ascendant Judiciary in East Africa

The Judicial Service Commission, by its diverse composition,26 is desig~

ned as an independent organ working to sustain the operations of an inde-
pendent Judiciary. The attributes of such independence are fleshed out in the
Judicial Service Act, 2011,27 which provides for the advertisement of Bench
vacancies,28 reception of applications29 and conduct of public interviews.30
The identification of Bench appointees is based on qualification-criteria spe+
cified in the Constitution;31 and the Act32 specifies the relevant matters in
respect of which the interviews are to be conducted: intellectual capacity; dili-
gence; knowledge of substantive and procedural law; organizational and admi-
nistrative skills; written and oral communication; integrity; legal experience;
good judgment, etc.
Another safeguard for judicial independence is security of tenure;33
a Judge is liable to be removed from office only in specified circumstances:
"inability to perform the functions of office arising from mental or physical

incapacity";34 "a breach of code of conduct prescribed for judges of the supe+
rior courts by an Act of Parliament"35 bankruptey;36 incompetence;37 or "gross
misconduct or misbehaviour."38

The procedure of removal of a Judge, on the grounds specified, is deft

ned: such action is to be taken by the President on the basis of the recom
mendations of an impartial tribunal instituted upon the recommendations
of the Judicial Service Commission.39 An aggrieved Judge may appeal to the
Supreme Court, from the Tribunal's decision.40

26 |bid., Article 171 (1).

27 Actn.1of2011.
28 S.3.

29 S.4.

30 S.10.

31 Constitution of Kenya, 2010, Article 166 (3), (4), (5).

32 S.13.

33 Constitution of Kenya, 2010, Article 168.

34 |bid., Article 168 (1) (a).

35 |bjd., Article 168 (1) tt)).

36 rbjd., Article 168 (1) (c).

37 |bid., Article 168 (d).

38 |b}d., Article 168 (e).

39 |bic|., Article 168 (2), (3), (4).

4o |bid., Article 168 (8).

The Independence of the Judiciary 129

The new Constitution has further enhanced the framework for judicial
independence by establishing a Judiciary Fund,41 to be administered by the
Judiciary's Chief Registrar for the purpose of meeting the "administrative
expenses of the Judiciary and such other purposes as may be necessary for the
discharge of the functions of the Judiciary."42
The Constitution has, quite meritoriously, instituted a framework for
safeguardingboththeindividualandprofessionalindependenceoftheJudge,
and the systemic autonony and capacity of the Judicial Branch.

41 |bid, hide 173 (1).

4Z |bid,Article 173 (2).