By Jerry Okungu
Nairobi, Kenya
November 3, 2013
Late this week, the
Supreme Court sat to deliberate on the dispute between the Senate and the
National Assembly. This was out of the bill of revenue division that the lower
House passed. However, when it inadvertently went to the upper House, they
increased the county allocation by over Ks 40 million. This act so incensed the
lower House prompting them to delete the additional revenue. Subsequently the
revised bill was signed into law by the President.
This was the tussle that
finally found its way into the Supreme Court for advisory opinion.
It will be remembered that
in the recent past the Supreme Court had declined to appear before any
parliamentary committee probing the dealings in the judiciary. In fact some of
the members of the Judicial Advisory Commission who have been the subject of
such parliamentary investigations have been belligerent to the extent of
lowering the dignity of the house.
Just a few days before the
Supreme Court sat to settle the dispute between the Senate and the House, a
lower court had passed a verdict barring the National Assembly from summoning
the judiciary to answer claims of mismanagement of public resources in the
corridors of justice.
We all know that there is
separation powers between the three arms of government. However, what the
judiciary is not appreciating is that the three arms of government must each be
its brother’s keeper.
The judgement against the
lower House was obviously meant to fortify the judiciary’s independence. The
verdict against the lower House by the Supreme court a week later was meant to
warn the belligerent lower House that
the supremacy battle between the two institutions was now on.
What one wonders is this:
If the Senate could humble itself to seek justice from the supreme court in its
dispute with the lower House, why can’t the Supreme Court humble itself in seeking arbitration in
parliament between it and the Registrar of the Supreme Court who had sought
arbitration in parliament?
Now that Gladys Shollei is
headed for the courts to seek justice for wrongful dismissal, will she find
justice in the corridors of justice that have marked her as corrupt and
arrogant? Is it possible that
in less than two years a well paid public servant like Shollei can commit over 80 economic crimes and embezzles
over Ks 2 billion?
In the Kenyan system, all
public servants including the judiciary are subjected to vetting by a
parliamentary committee before either being declared fit or unfit to hold any
public office.
The same committee can
recommend the sacking of individuals if found to have not adhered to code of
conduct. A good example is what Cabinet Secretary Charity Ngilu is going through
now. If she is to have irregularly recruited senior staff without the knowledge
of the Public Service Commission, she may be asked to resign.
This process is what all
arms of government must come to terms with irrespective of their independence.
It is the beauty of the new constitution that has brought sanity to the society
that has grown amok with impunity.
Another reality is the
fact that the same lower House is the one responsible for budget allocation.
Therefore if there is evidence that funds allocated to a particular institution
are misappropriated, Parliament has the powers to investigate and even reduce
the allocations in subsequent financial years.
The mucky waters that the
judiciary now finds itself are of its own making. It all started with the humiliating dismissal of the deputy CJ on
account of a misdemeanor she committed at the Village Market on the eve of the
New Year. In this case, what was interesting was the speed and enthusiasism
with which the CJ got involved. In a matter of hours, he had called a press
conference and set up internal investigation, forgetting that a crime committed
in a public place should be investigated by the police under the direction of
the Public Prosecutor.
The normal practice in
cases involving staff, especially junior staff is for the head of the
institution to protect her as much as possible while investigations are going
on and only give up when evidence is overwhelming.
Nancy Baraza opted to go
home because she had read the mood and realized that she could not get justice
in the corridors of justice.
So when Shollei’s
predicament burst in the open, it followed the pattern of Baraza’s with the
Chief Justice taking the front line with accusations. It is the reason Gladys
Shollei went to the press and parliament to disseminate the goings on in the
judiciary and seek justice in the only institution that gave and the Chief Judge
their jobs.
The Chief Justice must
realize that he is operating under a new Kenya. Those days when judges were
gods in the corridors of justice are long gone. The earlier he and his judges
realize this, the better for this country.
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