IS THE KENYAN JUDICIARY DERAILING ITS OWN REFORMS?

Justices Riaga Omolo, Bosire, Okubasu among those the Vetting Board found unfit but appealed against removal By Jerry Okungu Nairobi, Kenya October 31, 2012 For the second time in less than a month, Kenya’s Judges and Magistrates Vetting Board has addressed a public press conference in protest against the same judges they are supposed to vet. Apparently these judges of the High Court seem to think they have jurisdiction over the Board’s decisions, something that the drafters of Kenya’s new constitution did not envisage. The drafters made sure the Board was protected from any litigations in the courts. First, it was a three bench court that sat to suspend the operations of the Board for two weeks pending another court of appeal case. Incidentally, one of the judges that made that ruling already had a date with the same Board. He was due for vetting. That act so incensed the Board that at one time it considered disobeying that order. They never went that far. This time round, four Court of Appeal Judges that the Board had sent home having been found to be unfit to sit on the higher court took the matter to the High Court to challenge the Board’s verdict. Thanks to the procrastination of President Kibaki who should have degazetted them three months ago; these same judges got a reprieve from the High Court. Now they have to remain in the judiciary and possibly be assigned duties until their appeal is heard and determined. Now that the High Court has set a precedent that indeed the Vetting Board can send you home and you can still come back and drag the Board endless through endless litigations as you continue to enjoy your salaries and packs, one must question the wisdom of vetting judges and magistrates in the first place. Yet, the much needed judicial reforms that Kenyan yearned for that made them overwhelmingly pass the referendum was precisely this; to rid the courts of dead wood and incorrigibly corrupt judges. Before the new constitution gave Kenyans a new Chief Justice and a Supreme Court, the joke in the corridors of justice was; why hire a lawyer when you can buy a judge? This standoff has incensed many stakeholders not just in the constitution implementation commissions but has equally annoyed the Law Society of Kenya and the Judicial Service Commission in equal measure. And it is an open secret that the Vetting Board is preparing to challenge the latest court ruling in the highest court in the land to settle this unnecessary irritation once and for all. Among the eminent lawyers in the Board, one foreign expert from Zambia has protested loudly that he was hired from retirement for a job that was supposed to end on October 25 2012. And being a retiree, he is not ready to continue working without any firm deadline as he insists he wants to go back home and enjoy his retirement. To date Chief Justice Mutunga and his Supreme Court together with the Judicial Commission have done a commendable job. Indeed reforms have been going on well. Blatant corruption has considerably gone down. The judiciary is today more transparent than ever before. Backlog cases are being tackled with considerable speed. More importantly, judges and magistrates now know that the public is watching them and can report them to the CJ any time. However, one would be foolish to look at this reform sabotage in the judiciary in isolation. We have in the recent past seen instances where either the Executive or Parliament has tried to short-circuit reforms. We have had instances when the Presidency has tried to appoint top government officials without going through the due process as stipulated in the constitution. A case in point was when the President purported to have pointed the Chief Justice, the Attorney General and the Director of Public Prosecutions without consulting his Prime Minister or getting the appointees vetted by Parliamentary organs. However, due to the public outcry, the three appointments were rescinded. Another Executive attempt to circumvent the constitution was when the President again appointed 47 County commissioners to the newly created counties that had not been set up. However, since the constitution had no provisions for county commissioners, civilians went to court and got the appointments nullified. But, instead of commissioners vacating their offices, a permanent secretary in charge provincial administration defied the court order and asked the “commissioners” to stay put. Even the legal advice from the country’s Attorney General did not move the Executive. In this clamour to water down the letter and spirit of the constitution, Parliament has not been left behind. When it comes to harmonizing their salaries, MPs have defied both the taxman and the commission that the constitution set up to harmonize all public officers’ salaries and remuneration. Parliament has equally watered down bills that deal with integrity, ethics and morality. MPs don’t want to be vetted as per the constitution. They have equally repealed huge sections of the law in the Political Parties Act. Now Kenyans must rely on the Supreme Court to guide through these teething stages of transition. If it fails, Kenyans will quickly revert to the bad old ways that gave birth to the new constitution. jerryokungu@gmail.com