We can have inclusiveness without changing the Constitution

The Judiciary has become the scapegoat in the “war on corruption,” with Raila Odinga now echoing the Jubilee line in criticising the courts for obeying the law. Uhuru Kenyatta has led this chorus, clearly designed to turn the spotlight away from his own impunity, actions and omissions that have perpetuated corruption, amid his anti-corruption rhetoric.

Mr Kenyatta, Attorney General Kihara Kariuki, Director of Public Prosecution Noordin Haji and the police refuse to see the log in their eyes, preferring to blame others. That could be understandable since people in power rarely look inward for what is wrong. And especially if continued shifting of blame also serves to intimidate judges so that they check themselves more than they check the Executive. But there is also a hidden agenda in discrediting the courts: It prepares the public to be sufficiently malleable to accept a particular woman as Chief Justice once Deputy Chief Justice Philomena Mwilu is dispensed with and Chief Justice David Maraga retires. For this particular woman has proven a diligent protector of the Gikuyu mafia, no matter the law or facts.

It is particularly galling when someone who has been the victim of a compromised Judiciary, like Raila, decides to be more catholic than the pope and join this band-wagon. More than most, Raila knows from personal experience that the constitutional provisions on bond and bail are a direct result of the abuse by courts against those deemed “dissidents” or “anti-government,” who would be left to rot in remand for months on end. So for him to rail against the courts for granting bail to Okoth Obado as he did during the public lecture by Ford Foundation President Darren Walker at the University of Nairobi, is rich.

Don’t get me wrong: I have no illusions that the Judiciary is perfect, given that it is part of the Kenyan society with our penchant for easy money and ethno/political considerations. And I am aware that one can predict rather easily how some judges in the Supreme Court and Court of Appeal will always rule especially in politically sensitive cases, no matter the law and evidence. But by and large, there is a significant cohort of judges in the High Court and Court of Appeal that decide cases legally and logically. They have been bearing the brunt of much of the abuse handed down by those in power.

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The key to winning the war on corruption is as political as it is legal. Why is it that people running ministries with mega corruption in the parastatals in their dockets are still in office? There is no security of tenure for Cabinet Secretaries and Kenyatta should first sort out the Energy (where Kenya Power, KenGen, Kenya Pipeline reside) sector; the Transport sector (where Kenya Railways, SGR reside); the Security sector (where opaque dealings are an almost daily occurrence and which house the police force that is the master of extortion) and the Treasury (home of Eurobond and other loans). And he should come clean on the SGR and Eurobond scandals, which are the motherboard for all the corruption in this regime.

Then there are those who Kenyatta can’t fire, protected as they are by the Constitution. But for such people, who, for example, revel in public displays of Pharisee-like ostentation by donating massive but unexplainable amounts to churches week in, week out, Kenyatta should come up with political solutions. This has been done before in Malawi, Zambia and other countries, and could include removing all budgetary expenditure authority, reducing the staffing, and sending a clear message that the person concerned has been tamed.

If this were to be done, there would be no need to lament about the war on corruption being stymied by anyone or any institution. But sadly there is little chance of this being done, because there are way too many skeletons in the cupboard.

On another note, I hope that our politicians are paying attention to the chaos wrought in the UK from the Brexit referendum. Simply put, the Conservative Party decided that one way of dealing with its internal divisions was to take the issues dividing the party—on membership in the European Union--to the national stage, hoping the country would settle the discussions once and for all. Instead, the referendum opened up a can of worms that will not resolve anytime soon, no matter what happens with Brexit now or in the near future. Today, we have politicians seeking to settle personal and political divisions, headed in a very similar way, believing that reforming our eight year Constitution—which has yet to be fully and totally implemented--now via referendum will settle some scores.

One need not be a rocket scientist, or even have a crystal ball, to predict that heading on this path will be foolhardy. The political and personal divisions should be handled politically, and we can have inclusiveness without changing the Constitution. Let us keep working with it, implementing it faithfully, including Chapter Six, and then we can relook at these matters in another ten years or so. Let us never say we were not forewarned. Remembering in prayer those who were killed and injured in the terror attacks on Riverside Drive.

SEE ALSO :Political meddling pushing JSC towards total State takeover

- The writer is former KNCHR chair. [email protected]

JudiciaryRaila OdingaCorruptionConstitution