Judiciary has failed to uphold the rule of law and disappointed Kenyans

By Andrew Mwenda

The Judiciary has been on the limelight for all the wrong reasons despite having made a solemn promise of transformation. The manner in which the Judiciary has been conducting business has raised serious questions concerning the credibility of an institution that had swiftly regained public confidence after several years of mistrust.

And equally, our Constitution is slowly becoming just another document-or perhaps a book that has been shelved by those who were supposed to implement it.

Institutions like the Judiciary seem to forget so easily that despite having three arms of Government, the first among equals remains the President.

We must also understand that the JSC does not run the Judiciary. The Constitution dictates separation of powers and that is why it identified a new administration to run the Judiciary, specified the Chief Justice to deal with matters of justice but not run the Judiciary, and charged the JSC as experts drawing up policies and dealing with matters of injustice.

But what has happened? JSC has taken over running the Judiciary under Chief Justice Willy Mutunga, manipulating judges, employees and simply anyone to ensure ‘everything works for their advantage.’ To start with, the removal of former Chief Registrar of the Judiciary Gladys Shollei from office without giving her time to prepare her defense was unconstitutional and unacceptable.

Article 236(b) clearly stipulates that a public officer shall not be dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.

But it is unfortunate that her fate was pre-determined, despite the law providing that one is presumed innocent till proved guilty.

 What came out clearly were e-mail exchanges between Dr Mutunga and a group within the Judiciary calling itself the “War Council”, whose objective was to plot the removal of Mrs Shollei from office. The “War Council” spawned a 31-point “war strategy” aimed at restoring absolute authority to the Chief Justice. A detailed six-page document titled “War Strategy: The 31-Point Plan” advised Dr Mutunga to kick out Mrs Shollei in order to reassert his allegedly diminishing role in the Judiciary.

 Interestingly, nobody wants to talk about this and each time it is raised, even in courts, the CJ finds a way of evading it.

A section of Judiciary staff have since become victims of a purge against those perceived to have been close to the former Chief Registrar.

Some have been transferred to hardship areas and their salaries reduced by up to 70 per cent. Such actions by the JSC violate employee rights to fair labour practices, fair administrative action and their rights under the Employment Laws provided for in the Constitution.

Secondly, a petition for removal of the six JSC commissioners was presented to the National Assembly in accordance with the provision of Article 251(2) of the Constitution last year. The National Assembly considered the petition in accordance with Article 251(3) of the Constitution and by a resolution passed, was satisfied that the petition disclosed grounds under Article 251(1) of the Constitution for removal of the six members of the JSC from holding office.

The six commissioners- Ahmednassir Abdullahi, Samuel Kobia, Christine Mango, Mohammed Warsame, Emily Ominde and Florence Mwangangi, had also been summoned to appear before the Justice and Legal Affairs Committee but they snubbed the meeting.

The fact that the six were purported to approve or disapprove expenditure of monies allocated to the Judiciary, thereby causing inordinate delay in processing of salaries for judicial staff, was contrary to Article 161(2)(c) of the Constitution. But even after failing to appear before the parliamentary committee, JSC went ahead and filed a court order seeking to stop the committee from tabling their report in Parliament. Parliament dismissed the court order saying there was no way courts could stop what the House had already set in motion.

MPs therefore voted to back a report by the Justice and Legal Affairs Committee of Parliament and asked the President to set up a tribunal to probe the conduct of the six commissioners.

The President, while performing his constitutional mandate, suspended the six from office and appointed a tribunal chaired by Retired Justice Aaron Gitonga Ringera to spearhead investigations.

The JSC fought back, this time moving to court to stop the tribunal from carrying out its mandate. Interestingly, High Court judge Justice George Odunga reinstated the six members and blocked the tribunal from probing them, pending the hearing and determination of a petition filed by JSC challenging the constitutionality of the tribunal. This shocked me literally. At some point I felt Justice Odunga was being manipulated by his employer to make uninformed and unconstitutional judgments.

Earlier, Justice Odunga had issued an order barring Parliament from discussing or adopting the report of its Justice and Legal Affairs committee. Parliament categorically stated that there was no way courts could stop what the House had already set in motion.

When issuing the second order, this time against the President’s tribunal, Justice Odunga left it to the Chief Justice to appoint a three-judge bench to hear the matter because it “raised serious constitutional issues” warranting a three-judge bench. To date, the CJ, who is also Chairman of JSC, is yet to set up the three-judge bench. So why would the CJ take ages to appoint a full bench to hear this single matter? Do courts have powers to stop debates in Parliament? And have the courts been manipulated to serve the interests of a few?

Well, we have seen several other matters that need the constitution of a full bench, but nothing is done-The CJ for some reason literally delays or fails to act! The JSC, seemingly emboldened by these ‘victories’ and taking full advantage of the lull, moved with speed to appoint a new Chief Registrar of the Judiciary and concluded the recommendation of the new High Court Judges.

And two weeks ago, JSC forwarded the names of the 25 recommended judges to the President for appointment. Yet JSC imprudently wants the President to appoint the judges just a few months after it blocked his decision on the setting up of a tribunal to investigate six of its members.

So how could one expect the President to act on recommendations of commissioners who he suspended? The President is unlikely to act on the recommendations, not until serious constitutional questions with regard to the role of Parliament and the President in dealing with independent commissions; Commissions like The Judicial Service Commission (JSC) are answered.

It’s amazing… No, unfortunate that the Judiciary has been claimed by a JSC that claims it is accountable to no one in seizing new powers – not Parliament or citizenry, not the President, no one!

Like I said before, I pray that the CJ can find the wisdom and value of humility to respect other leaders of the country and desists from supremacy wars with his seniors!