No, the Judiciary is not being unfairly targeted

CJ David Maraga addresses the press at Milimani courts accompanied by other judges. He said that judiciary is not an impediment in the fight against corruption. [George Njunge, Standard]

Kenya’s Judiciary is going through rough times, challenging its credibility as an arbiter. Although this is not the first time that the Judiciary has been under scrutiny, it is one of those times when its probable short comings appear to be glaring. Depending on one’s vantage point, the Judiciary seems to hit the headlines for the wrong reasons, which tends to erode public confidence.

Knowledgeable Kenyans cannot agree on whether the Judiciary is in good health. The Conference on Corruption at the Bomas of Kenya appeared to portray the Judiciary as the weakest link in the fight against corruption, and it had problems extricating itself from that public perception.

Chief Justice, David Maraga, is experiencing the same problems his predecessor, Willy Mutunga, had. This is the handling of sensitive allegations involving the deputy chief justice. Mutunga’s challenge was to handle Deputy Chief Justice Nancy Baraza whose offense was refusing to be searched and pinching the nose of a security guard at a Nairobi Mall.

Baraza probably thought she was being motherly, but the public thought otherwise and demanded action. Since the public disapproved of her improper behavior as a top state officer, she left the Judiciary and went to teach law at Parklands. Second, Baraza’s ouster had a positive social effect in that it made routine screening in public places acceptable. Maraga’s challenge, however, is more complex than Mutunga’s in that Deputy Chief Justice Philomena Mwilu was arrested and charged with corruption-related offenses.

The Judiciary

Mutunga was decisive with Baraza; Maraga looks fixed and has no room to maneuver with Mwilu. Both men admit to the existence of deep corruption within the Judiciary.

While Mutunga can talk of judicial politics, Maraga is in the hot seat and would not contemplate talking of politics in the Judiciary. Yet, it is in Maraga’s court that judicial politics appears to be rampant.

This seems so in the handling of high flying accused personalities with batteries of top notch political lawyers to get them off the hook by stopping investigations and prosecutions. The stopping sends the wrong vibrations to the public because that arrangement is not available to the proverbial Wanjiku. It, nevertheless, puts Maraga’s Judiciary in a perceptional fix.

It is also in Maraga’s court that other probable judicial anomalies surface. Among them is the likely conflict of interest in which a judicial employer, a member of the judicial service commission, appears before a junior employee, a magistrate, as a lawyer for an accused. Would this amount to intimidation of the magistrate not to forget who is before him/her?

Mutunga once gave a public lecture on judicial politics and pointed out that judges/magistrates are fully aware of the power of the eyes staring at him to see how he would decide. What happens to a magistrate in a criminal case in which the employer, a member of the Judicial Service Commission, is the accused?

This reality

The concerns were there at the inception of colonialism in which ‘native tribunals’, under 'mzungu' administrators, operated on the philosophy of advancing settler interests. Courts, as well as legislatures, were administrative organs. This reality extended to the post-colonial times. There appears to be reversal of positions. While the Judiciary seemingly over reaches itself, the executive appears weakened.

The agitation for constitutional overhaul was partly to delink the Judiciary from the executive, but not for the Judiciary to go ‘rogue’ and undermine either the executive or the legislature. In the fight against illicit brews, for instance, the courts appeared to encourage brewers while hamstringing the administration.

People wondered why. Since the ‘legalese’ involved was not persuasive, the Judiciary looked out of touch with reality. Courts lost additional credibility when they issued orders that could not be, and were not, enforced.

The Maraga court is under focus partly because it seems ambivalent and mistakes legalese for perceptional realities. It appears to have double standards in handling high fliers differently from ordinary Kenyans. Unable to address perceived conflict of interest, it looks bad.

The impression that the Judiciary has gone ‘rogue’ in allocating to itself legislative and executive functions while unable to deal with internal weaknesses is not good. It is a conundrum Maraga has to face.

Prof Munene teaches History and International Relations at USIU