The Government's closest ally in oppressing the people of Kenya, and in frustrating
the Black Bar, was the Judiciary. Both through utter incompetence and willful
subservience of the Executive, judges and magistrates in Kenya twisted the law in
support of the government and reduced the Judiciary into an ineffective guard of
the fundamental liberties of the people. It is a fair summary of the history of the
Judiciary to state that it totally failed to discharge the obligation that was placed
upon it by the 1963 Independence Constitution.
Initially, the problem with the Judiciary was the legacy of its pre-Independence
experience under colonialism. In the colonial government's ordering of business,
the judiciary was placed as one of the executive departments under the Attorney-
General. Magistrates were regarded as discharging an executive function and in
many instances doubled up as District Commissioners. They came under the
direct control of the Provincial Commissioners who were regarded as their
superiors, In their turn, judges came under the direct control of the Attorney-
General, whom the Chief Justice regarded as his superior. The entire judicial
department thus had an executive approach to its duties. It was guided more by
the concern over maintenance of order than the administration of justice.
The establishment of the Judiciary as an Independent arm of government by
the 1963 independence Constitution did not change this executive psyche. The
judicial officers continued to regard themselves as part of the executive arm of
government and never appreciated the need to operate independently of the
State's directions.
