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Weakened judiciary bad for citizen rights and freedoms

By Alexander Chagema | November 7th 2019 at 11:55:27 GMT +0300

The Judiciary’s level of independence is representative of the rights and freedoms that citizens of a country enjoy. When the Executive and Legislature gang up against the Judiciary and treat it disdainfully, citizen rights and freedoms cease to exist because their bulwark against executive and legislative excesses is destroyed.

There is no shortage of extra-judicial killings in Kenya. Low-end housing estates, especially in Nairobi where groups of educated but jobless youth spend most of their time, suffer the brunt of such killings. Public outcry has not been sufficient to get a lethargic executive to act. While rogue police officers terrorise citizens, get involved in bank heists and highway robberies, the Independent Police Oversight Authority offers no comfort.

The cries of the poor whose land has, or is likely to be appropriated by the affluent in society are so feeble; they do not reach the dizzying heights where an executive that swore an oath to defend the rights of citizens is perched. And that is because the declaration of results of the presidential vote in October 2017 diminished the usefulness of poor citizens. It has been drama after drama as competing political camps try to upstage each other. Promises made in 2017 have been conveniently forgotten in the mad rush to 2022.

Corruption has never been at its best despite perfunctory attempts by the Executive to stem the vice. Claims by Chief Justice David Maraga that Cabinet and Principal secretaries are indeed the infamous and ubiquitous cartels that have hijacked and pushed this country to the precipice where it is tottering dangerously should worry us.

Assertive judiciary

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That these cartels are hell-bent on intimidating the Judiciary bodes more evil for Kenya. We must acknowledge that the few liberties we enjoy are because the judicial system still has vestiges of prestige. The moment that veneer is penetrated by the Executive, we will be at the mercy of our equivalent of the Gestapo. The Gestapo’s mandate was to remove, by whatever means, any opposition to the Nazi rule in Germany.

While President Uhuru Kenyatta’s ire at the Supreme Court’s nullification of his win in the August 8, 2017 presidential election was understandable, his outburst was injudicious. To have sworn to ‘revisit’ the Judiciary at a later date and now the spirited attempts to throttle an assertive judiciary do not leave him in good stead. He may not have meant what he said, but there are zealots in the corridors of power out to impress by doing what they imagine pleases the man at the apex of governance.

The President should do the honourable thing and exonerate himself from the perception that he intends to cow the Judiciary. To some extent, the insolence that Parliament exhibits draws strength from that threat. Parliament lost credibility and its moral compass when it was seemingly arm-twisted to pass the Security (Amendments) Bill 2014 to remove the security of tenure for the Inspector General of Police; approved the 8 per cent fuel levy and the shame of absent MPs during a vote on bank interest rate caps on Tuesday. Parliament does the bidding of the Executive.

Hefty perks

Our parliamentarians come across as obnoxious and irredeemably greedy. This is manifest in their propensity to set rules that make them the prosecutor, judge and jury. MPs set their own salaries and perks, completely oblivious of the Salaries and Remuneration Commission. They enjoy these hefty perks for a three-day work week and draw allowances from committees they barely attend.

The Judiciary’s woes have their genesis in a Parliament that has little regard for the separation of powers and the complementary roles that the three arms of government should play. In 2018, ostensibly because there was a paucity of funds, the Judiciary’s request for Sh31.2 billion was slashed to Sh14.5 billion by Parliament. Yet after scaling back the Judiciary’s budget, the august House unashamedly proceeded to allocate itself Sh42 billion. Members of Parliament arbitrarily increased their pension by 700 per cent and awarded themselves a salary increment despite SRC’s attempts to stop them. This is a clear indication of hypocrisy by individuals masquerading as honourable.

But despite all, the Judiciary is partly to blame for indulging the whims of the Executive and Legislature. Those who can subvert or buy justice have no business respecting the sellers. Politicians, especially, get anticipatory bails and court injunctions at the drop of a hat.

When judicial officers get co-opted into politics by attending political rallies, they become the politicians’ lackeys. We cannot pretend our judicial system is beyond reproach. We would not be having tribunals and the suspension of judicial officers for misdemeanour if they played by the rules.

Our greatest hope lies in the Judiciary. It can claim its rightful place by putting down its foot and pinning politicians in their rightful place. 

Mr Chagema is a correspondent for The Standard. [email protected]     

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