Tuesday, November 5, 2013



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.