Tag: judicial independence

Kenya’s Supreme Court schedules, then fails to attend, emergency hearing to postpone presidential election

Kenya’s court-ordered repeat presidential election is scheduled for today, and the situation is a mess. Opposition leader Raila Odinga has asked his supporters to boycott the event, and there appears to be widespread confusion about how the process is supposed to work.  The country’s electoral chief himself has stated that he has no faith that the country can deliver a free and fair election.

Within this maelstrom, there was a last-minute effort this week to ask the Kenyan Supreme Court to postpone the election. A hearing was apparently scheduled for Wednesday morning. But only two of the seven justices showed up for the hearing, making it impossible for the court to hear and render a decision. Among the missing justices was Philomena Mwilu, whose driver/bodyguard was shot and killed Tuesday night.

Early reports from today’s election have already centered on violence and clashes between police and protesters.

Kenya’s judiciary remains under pressure

The Wall Street Journal has a good summary story on the pressures that the Kenyan judiciary has faced since its Supreme Court invalidated the country’s presidential election last month.  In the run-up to the new election (scheduled for later this week), judges have faced direct threats, and the court system as a whole has faced substantial indirect threats of “judicial reform” — which everyone seems to understand as a potentially substantial cutoff in funding.

Observers of the American court system often speak of the importance of judicial independence, and rightly so. But for much of the world, third branch independence is a far more existential issue than in the United States. Threats to judicial independence are not an issue of verbal criticism, but rather of physical attacks or the diminution of critical resources. We would do well to pay more attention to these threats worldwide.

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Supreme Court concludes hacking occurred, orders new presidential election

In Kenya, that is.

“A declaration is hereby issued that the presidential election held on August 8 was not conducted in accordance to the constitution and applicable law, rendering the results invalid, null and void,” said Judge David Maraga, announcing the verdict of four out of the court’s six judges.

The electoral board “failed, neglected or refused to conduct the elections in accordance with the constitution,” Maraga added. Two of the court’s judges dissented with the verdict, saying the will of the people should not be nullified due to challenges that arose during the electoral process.

New elections must take place within 60 days, according to the ruling.

This is a remarkable display of judicial independence, unprecedented in Africa.  And it appears that everyone will abide by the order peacefully.  At the same time, however, President Uhuru Kenyatta has lashed out at the judiciary, promising to “fix” the judicial system should he win the revote.

Stay tuned.

Judicial independence under threat in Poland, Romania, Palestinian Authority

In Europe and the Middle East, several governments are taking authoritarian approaches to their judiciary, largely by creating frameworks under which judges can be removed or punished by other members of popularly elected branches.  A few updates after the jump. Continue reading “Judicial independence under threat in Poland, Romania, Palestinian Authority”

Judicial independence still under siege in Poland

Although President Andrzej Duda vetoed two legislative proposals last month that would have severely weakened the independence of the Polish judiciary, he did sign a third bill that gave the country’s Justice Minister the power to remove and replace the heads of the lower courts.  That law went into effect this week, and the results are not promising.

The German media site Deutsche Welle reports on district judge Waldemar Zurek, a spokesman for Poland’s National Council for the Judiciary, who has been personally investigated by prosecutors on very flimsy grounds.  According to the story, Zurek

fears his computer will be seized for the information and contacts it contains. “They’ve already looked at my phone records – without my permission,” he said, which Polish law allows. The threatening letters were just a pretext to monitor him, Zurek said.

Zurek states in the story that he assumes his public stance in favor of judicial independence will cost him his job soon.  Will the Polish people stand for it?

Jordanian government moves closer to passing judicial independence bill

The Jordanian Senate’s Legal Committee has endorsed a bill that would give the country’s judiciary an independent budget and improve the judicial appointment process.  The marked bill now goes back to the Lower House for review, and to rationalize any inconsistencies between the two versions.

Budgetary independence is a central, and often overlooked, component of judicial independence.  Courts are already dependent on other arms of the government for funding; to also be restricted in how the money is spent creates the obvious risk of quid pro quo justice.  Budgetary independence was a major project for the United States Courts in the first part of the twentieth century, and it finally met with success in the 1930s.  Other jurisdictions around the world are right to seek the same, and the Jordanian legislature is right to grant it here.

Are Ramadan arrests in Tunisia a sign of tyranny or judicial independence?

Five men have been arrested in two Tunisian cities in recent weeks for breaking the Ramadan fast.  Some are calling the arrests a violation of human rights and the imposition of religious tyranny.  But John Spacapan of the American Enterprise Institute thinks it might be a positive indicator of judicial independence:

The legal dispute over these arrests arises from a paradox in the Tunisian constitution: while the constitution ensures protection from religious persecution, Article 6 makes the government “the guardian of religion.” Local courts used this clause to justify jail sentences for violating Ramadan. The limit on this kind of action lies, in part, in the Tunisian judiciary and the ability of secularists to appeal the interpretation of Article 6, a path to a precedent-setting ruling by Tunisia’s Supreme Court.  In other words, an independent judiciary could be the key to establish the precedent of religious freedom essential to deepen the roots of Tunisia’s democracy.

The full article is an interesting read, and recommended.

Poland passes judicial reform bill, placing EU voting rights in jeopardy

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Yesterday, the lower house of the Polish legislature passed a highly controversial reform bill that gives the executive branch enormous power to select and remove judges, including the entire Supreme Court. The Polish senate is expected to approve the bill today, and President Andrzej Duda is expected to sign the bill shortly thereafter.

The bill has drawn criticism from both domestic and international circles, where it is widely seen as a threat to judicial independence and the rule of law. During the parliamentary debate, opposition leader Grzegorz Schetyna accused the ruling Law and Justice Party of “destroying Poles’ right to an independent court … destroying the foundations of freedom, of parliamentary democracy.” Thousands of people rallied against the bill in Warsaw last Monday, and another major protest took place yesterday. Now the European Union is threatening to strip Poland of its voting rights within that organization.

Law and Justice (PiS) has argued that the reforms are needed because the Polish judiciary continues to operate along communist-era lines, and ordinary citizens do not feel that “the system is on their side.”  Critics see this justification as a naked power grab which effectively places all three branches of the Polish government under the control of a single party.

When arguments are clothed in the language of populism, it is often difficult to assess their accuracy and sincerity. I have no doubt that the Polish people are still scarred by two generations of communist rule, but a widespread judicial overhaul that consolidates power in the hands of a select few hardly seems like a serious effort to restore the judiciary to the people. This editorial underscores the point.

Still, I welcome anyone with a more intimate knowledge of Polish politics or this particular legislation to offer thoughts on the legislature’s motives in the comments.

More reaction to Poland’s judicial reform

Several news outlets have reported on the protests yesterday regarding the Polish government’s proposed reform of the judiciary.  Some examples of coverage can be found here, here, and here.

Meanwhile, Bloomberg News offers up a detailed analysis of the reform proposals here.  I cannot speak for the credibility of the author, but it appears to be a useful read.

Populism, politics, and the Polish courts

Several months’ worth of rumblings over the fate of the Polish judiciary came to a head this week when the country’s legislature debated a controversial judicial reform bill. Like the judicial crisis in Ireland that unfolded earlier this summer, the Polish controversy is worth unpacking and monitoring closely.

The reform bill discussed this week was shepherded through the legislature by the Law and Justice (PiS) Party, a populist, conservative party that has been in power since 2015. The bill would give legislators and the Justice Minister the power to appoint new judges without input from the judiciary. It would also create a new code of ethics for the country’s judges. A second bill would require all Supreme Court Justices to resign (unless permitted to stay by the Justice Minister), and new Justices appointed in their stead. The PiS leader, Jaroslaw Kaczynski, has justified the moves by saying that the country’s judiciary had not sufficiently reformed from its communist past, and that “radical changes” were needed.

Opposition leaders and other European observers have painted the bill as a power grab that would compromise judicial independence and threaten the rule of law, and have even asked for international oversight of the vote on the bill. On Sunday, thousands of protesters jammed the streets of Warsaw to protest the legislation.

What should observers make of this?

Continue reading “Populism, politics, and the Polish courts”