Charles Baron De Montesquieu may have come up
with a very good framework of independence of the judiciary long before Kenya
knew that she would ever attain her independence. His main logic was the need
to have fairness in administration of justice, which could be achieved via
independence of the judiciary. I wish he was here today to teach us these
methods because it seems to me that they remain a mere rhetoric to Kenya. One
word that comes into the mind of any reasonable man (as the law would want to identify
people as such) about the judiciary of any government is how clean and
independent the judiciary is. How stable it can run on its own without looking
for support and stability from other government units in its quest for
administration of justice. Ever asked why everyone these days cries for this
“independence” thing. I don’t tend to understand it, but to me the people who
mostly cry for it are those who tend to think that they are oppressed yet they
have the power and capability. Sorry to say, but women and other lazy minority
groups such as youth seem to exhibit this a lot in the name of fairness. Yet
when they are left to walk alone they come back crying to be accommodated by
the same people they demanded independence from. Do they really understand the
meaning of that term?
That
aside for so long we worked towards the independence of the judiciary and its
cleanliness. It is very true that of the three arms of government the judiciary
was a real mess. The restructuring of the judiciary saw the coming in of many
civil society persons whom for a long time had been transversing the streets
fighting and shouting in insanity about the same government that they now
serve. We have now given them a chance to work what they felt had not been
worked. Dr Willy Mutunga the CJ, Nancy Baraza DCJ currently suspended, Lady Justice Njoki Ndungu are just but a few newly appointed judges from the civil society. Who
said cleanliness of the judiciary is about civil society? Give me a break Kenyans!
That is where we went wrong about the whole of this judiciary thing and trust
me we will regret it. The amount of noise you make and the many times that you
appear on our television screens chanting all manner of words does not mean you
are the right person for the job. True
reformers are judged by history not what they say, purporting to be a reformer
and yet we don’t know of an institution that you have headed to reform. The tiger does not shout about its
tigritude, you see the skeleton of an antelope and you know that some tigritude
has emanated, let us follow your footsteps and let history be your judge.
It takes more than a sober mind to administer justice and ensure the right
systems in place. Look at the greatest judges of the world; Lord Denning M.R,
Former American jurist Wender Holmes and Lord Atkinson. Who of them was a civil
society member, and was justice administered? Furthermore I have never heard of
any of them who pointed a gun to anyone and threatened a life just at mere
provocation. An administrator of justice needs not to have a fixed or made up
mind of their own. An administrator of justice is who accommodates all ideas
and rules from the law or the facts. I doubt that this “civil society judges”
will do it.
I
want to congratulate the persons who came up with article 160 of the
constitution. It is quite a good job and the entire drafting of the whole
chapter on the judiciary especially limitation of it powers; independence and
accountability are works to give an applause for. However they are just words
in paper and if not implemented correctly we will have nothing to write home
about this same sketch that has been designed. Let us take a look at some of
the aspects of independence that come out clearly in appointment. The president
approves the names given to him by the judicial service commission and later
forwards the names of those judges to parliament for further approval. The rot
begins with the judicial service commission. How do you let the cat look after
the mice? Look at the people who it comprises of. The names in the judicial
service itself are a wreck. Some are political minded activist who are there to
gain fame for their writing and criticism trying to show their holiness than though
attitude, the former and latter Attorney Generals are all related to scandals
and government psycho fancy, some have allegedly forged their pupilage
admission to the bar and taken more than enough from their clients, one of the
former judges sitting in the commission was recently fired from office because
of corruption, the chair of the commission is a former activist. If you think
am making up my own stories check on Ahmednasir Abdullahi, Amos Wako, Githu Muigai,
Riaga Amolo and Dr. Willy Mutunga. What good appointments are going to come out
of such a commission, tell me Kenyans what? The commission that has been formed
to vet the magistrate and judges as part of the cleanup commission is headed by
Rashid Rao. He is the former deputy director of public prosecutions who is once
on record stating that he doesn’t know of a law that says you cannot detain
someone for more than twenty four hours. Currently he is the same person who
chases Riaga, Okubasu and Bosire for leading in the same dictatorial manner of
detaining people without trial, is that even logical?
You think it is only that? Now let me shock you;
let me remove the cobwebs that have been put before you by this independence and
reforms words. Another aspect of the judiciary independence is the funds that
are allocated to it. I also have the same belief that such fund should be there
to ensure units such as treasury do not blackmail them or make them their
subordinates. But that does not justify the asking of eighteen billion and the
complaining when getting the fifteen billion that is more than enough. I am
longing to see the way the chief registrar will explain the usage of that money
in the judiciary fund to parliament. When the newly appointed judges came in
there was a salary increment of 300percent, the magistrate said they would go for
a strike and 100 percent was given to them. What was that for? Is justice now
bought for money? If I were in the position of Willy those salaries of judges
should have remained the way they were after all there was more than enough.
The magistrates’ salary is what should have been raised. This would have been
the clear cut to show the true administrators of justice and those who come for
it for the sake of the good package. That is what is happening in America today
Judges are quitting and joining lawyers, and then from there we can tell the
true noble judges. A Renowned city lawyer Prawvin Bowry argues the judiciary
fund point in a, manner that impresses me. He asks where does the money gained
by the courts in filing suits taken to? To file a suit in the high court of
Kenya today is not less than Seventy thousand Kenya shillings, take a look at
the bonds and fine the courts acquire from daily proceedings. Where is that
money? Why can’t we use the same and reduce the judiciary fund for other
judicial matters such as witness protection and legal aid which are a big
problem at hand.
In the utilization of public resources allocated to us we must emulate the
Stoics and Spartans of old.
The judiciary is said to vest its powers in the
constitution and derive them from the people of Kenya and is not subject to any
body about its decisions and judgements. Justice Nicholas Ombija delivered a
judgement banning the Sudanese President Omar Al- Bashir from setting foot in
Kenya. His Judgement was fought left, right and centre by the, executive to the
extent of the AG writing to the Sudanese embassy that the judgement is bogus
and the president is still welcomed. That alone is not enough just last week
Lady Justice Mumbi Ngugi of the constitutional department gave a judgement on
the wrong interpretation of the constitution by the president, during the
appointment of the county commissioners. Hours later the president through
state house head Francis Kimemia and the Ag said that such judgement is wrong
and the county commissioners should remain in office. Of all people the Attorney-General
who is a member of the JSC, a part of the judiciary is one person who should
know about the appeal avenue and should have done the same for that judgement.
What independence is there if there is no upholding of the rule of law through
judgements of the judiciary? What they are doing is cleaning and stepping on it
with muddy boots before it dries. In matters such as these we cannot but say that it is the
dog that wags the tail and not vice versa.
I can assure you many such scenarios are going to be seen more often in this
new constitutional dispensation and the judiciary shall do nothing about them
if they continue with the same way they are working.
The
ministry of justice and constitutional affairs headed by presidential aspirant
Eugene Wamalwa is also an abyss. The minister is rarely there for official
matters. He is always moving from one place to place selling his party for the
next general election. How is the judiciary going to work with such a guy? His biggest
friends are those who where and still are opposed to the new constitution. How
is he going to ensure fair dispensations if the people he works closely are
opposed to it? Just a question, they say show me your friends and I will show
you......It
is when the boat approaches the shore that it capsizes; we must therefore tread
with preternatural circumspection in these last phases of the Constitution
dispensation Process.
While it is good to be both nice and right, in this case I
prefer to be right rather than nice. I will not embrace cheap heroism by
pretending to be a fire eating pseudo-revolutionary. I prefer to be called
names but I will remain a servant of my conscience and a warrior for truth and
justice. I am sick and tired of what I hear of
this judiciary independence and cleanliness. So far I can dare Mutunga to come
out and show the zeal and zest that he promised in the quest for perfection of
administration of the judiciary. J.F Kennedy said that a good builder is he who
when called to build best builds the greatest. The judiciary was only asked to
build well it has done more than worse and I doubt if the construction will
ever end.
The road ahead is still tricky and will require a lot of patience, tolerance
and level headedness. It is time they
started working or they left. I tell you fellow countrymen there is nothing to
write home about the Mutunga’s judiciary, its purported cleanliness and reforms.
The columnist; John.S.N is a student of law at Africa Nazarene
university, the vice chair of LAANU, a prospectus columnist and political
analyst. The opinions written in this column are for the writer himself and not
in anyhow those of Africa Nazarene University or LAANU. The opinions given are
impartial and no personal vendetta has been expressed. The writer has proof of
the facts given and is ready to adduce any evidence if required to do so.
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