Monday, June 23, 2008



By Jerry Okungu
Dar es Salaam, Tanzania
June 23, 2008

So, Kenyan judges are planning to go to court to stop the Minister for Finance from levying taxes on their allowances! And they have enlisted the services of their comrades, the Law Society of Kenya to fight the proposed tax in courts! How interesting!

For the sake of this argument, let us assume that the matter of taxing judges is a constitutional matter. Filing this case will not take place anywhere except in a constitutional court presided over by a High Court Judge. Assuming that that judge will be part of the collective group contesting the cabinet decision to levy taxes on judges, how will he extricate himself and fairly hear the petition in which he is an interested party, in fact an aggrieved party?

Again, assuming that judges actually take Amos Kimunya and the Cabinet to court, how will they exclude the President from the case since the President presided over the cabinet meeting that approved Amos Kimunya’s proposal? Are the judges ready to go the whole hog and sue everyone who has conspired to deny them their constitutional birth right including Mr. President? How do they intend to deal with the current unwritten law that the sitting president cannot be sued in a court of law until he is out of office?

In suing the cabinet and Amos Kimunya, one is actually suing the entire government. In such a situation, the government will seek legal advice and possible representation from none other than the Attorney General. Will the AG be available to defend the government against the judiciary of which he is apart?

What about the separation of powers? What right does the judiciary have in interfering with a matter that is purely an executive and parliamentary decision? If this proposal from the Executive is passed in Parliament, will the judges and LSK still find any leg to stand on? Or will they take on Parliament and the Executive and try them in the courts where they hold sway? If this were to happen, what would stop MPs from generously discussing the conduct of judges and lawyers on the floor of the House from time to time with impunity? Aren’t the judges on the path to self destruction and debasement of the judiciary as we know it today? Do they have to go this far just to avoid paying taxes that every poor Kenyan is paying?

The decision to levy taxes on members of parliament and holders of public office was made by the political arm of the government in the interest of the larger public. These are the people Kenya elects every five years to pass laws that are in the best interest of the public. If judges feel that paying taxes on their fat salaries is unconstitutional then that part of the constitution must be amended with speed. We have amended sections of the constitution in the past with lightening speed. Now is the time for legislators with wananchi at heart to do it again.
Judges say they cannot be taxed because the act would be unconstitutional.

I say that if the law allows a group of people to steal and rob peasants in broad day light, that law is a bad law that must be amended to save the very judges from public anger and disdain. Any single judge who wants to perpetuate the blood sucking of starving Kenyans is not worth his or her place on the bench. That judge belongs in the City Council or any other class of society where thieving and conniving are virtues.

Some anonymous judges have been heard claiming that they have no other source of income. Right now an average judge earns close to Ks 250, 000 and another Ks 400,000 in various allowances. This is more than US $ 10,000 on a bad month. If this is peanuts in a country where an average Kenyan survives on less than US $30 a month, how do our honorable judges think ordinary Kenyans that they jail everyday for petty offences survive? Have our judges done some homework to find out how much fellow judges in Tanzania, Uganda, Rwanda and Burundi earn without resorting to graft?

Finally, the most disgusting conspiracy theory was the realization that, that barking club that just the other day was defending Kimunya on the move on MPs are now planning to defend their comrades in court against the same Kimunya. Now we know why our judiciary will always remain in dogs! The moral conscience of our society has died!