Questions as Judiciary asserts authority

By LILLIAN ALUANGA

A new breeze has been blowing over the corridors of justice.

Within one year, a Cabinet minister, two assistant ministers, and a Chief Whip have been sent packing, courtesy of election petitions filed against them.

Former Bomachoge MP Joel Onyancha became the first casualty when he lost his parliamentary seat in December 2008.

What followed was the fall, in quick succession, of other legislators — former Trade Assistant Minister Omingo Magara (South Mugirango), former Transport Minister Chirau Mwakwere (Matuga) and PNU Chief Whip George Thuo (Juja).

Just last week, High Court judges Muga Apondi, Mohamed Warsame and George Dulu, appeared to reprimand President Kibaki and Chief Justice Evan Gicheru, when they quashed a decision by the Executive to suspend Justice Moijo ole Keiwua on corruption allegations.

Flawed polls

While it is not in doubt the outcome of the petitions exposed the malaise that dogged the controversial 2007 General Election, questions are being raised on whether the Judiciary is on a ‘fresh campaign’ to assert itself as an independent arm of Government.

"There isn’t enough evidence yet to show that the Judiciary is ‘born-again’ but its handling of election petitions shows an improvement," says lawyer Charles Kanyangi.

Kanyangi, who served as magistrate in Kakamega, Kitale, Kisumu, Busia and Nyahururu in a career spanning 24 years, says while the Judiciary’s handling of the poll petitions has signalled a break from the past, it is yet to convince the public it can rise to the occasion in arbitrating critical issues touching on the nation’s survival.

Of the three arms of Government, the Judiciary is perhaps the one that has long been criticised by politicians, civil society, and even the international community over allegations of corruption, and failure to act independently of the Executive.

So tainted was its image that in 2003, a ‘radical surgery’ that saw over 80 judges and magistrates sent home was commissioned. The outcome and motives of the surgery, however, remain debatable.

Based on the assumption that the Judiciary would not be objective that ODM turned down suggestions by PNU to challenge Kibaki’s 2007 contested win in court.

"It’s encouraging to note that this time the poll petitions have been conducted in a timely manner. They touch on the front bench of the House and have equally hit ODM and PNU, which are the main coalition partners," says Kanyangi. Previously, it was not uncommon for petitions to drag through a parliamentary term, making it a less preferred option for election losers.

"The Judiciary could be trying to reassert itself to regain public confidence. It may have resolved to deal with election petitions in a manner that shows given a chance it can be trusted to arbitrate election matters," says Moi University law lecturer Mutaha Kangu.

Kangu, a former commissioner with Constitution of Kenya Review Commission, adds a rider to this observation.

Internal reforms

"One could also look at it as a gimmick to avoid serious reforms in the Judiciary. We are yet to see internal reforms that signal genuine change," he says.

According to Kangu, the Proposed Constitution could have provided impetus for the Judiciary in its latest wave of rulings, given the changes it proposes for the third arm of Government.

For instance, should the draft sail through at the referendum, all judges will have to be vetted afresh, while appointment of the Chief Justice will be subjected to Parliament’s approval.

But Kanyangi faults the idea that a new constitution will be a panacea to the problems that have dogged the Judiciary.

"Independence is not found in the law but in the mind of the persons occupying office," he says.

"We can have the best constitution, with elaborate structures for the Judiciary. We can even have the best remuneration terms for judges and magistrates but this does not in itself guarantee an individual will work independently," he adds.

He, however, attributes the recent rulings to ‘a comparatively new crop of independent judges out to reassert themselves and dispose of matters expeditiously.

But former Law Society of Kenya Chairman Ahmednassir Abdullahi feels faster movement of election petitions has nothing to do with the Judiciary reasserting itself, and instead pegs the current performance on administrative decisions.

"We need to look at the history of the Judiciary to realise this trend always follows whenever there is a feeling that ‘something’ is going to happen," he says.

He cites the shift from single to multiparty rule in the 1990s, regime change from Kanu to Narc in 2002, and the current push to have a new constitution as catalysts for what he alleges is a ploy by the Judiciary to play to the public gallery.

"It is a mirage. I don’t believe there is a genuine reawakening of the Judiciary, nor is there a pattern to show that it is changing. What we are seeing with the poll petitions are episodic events that have no basis in reform," he says, adding there have been procedural questions raised on the handling of some petitions.

Kangu cites the judgement made on Keiuwa’s case as a challenge to a process the court felt was wrongfully conducted.

"There are several approaches to cleaning up the Judiciary. We could borrow a leaf from South Africa, which wrestled with questions of firing all judges or retaining them during transition from the apartheid era," he says.

"Today, judgements made by South Africa’s constitutional court have revolutionised the thinking of its Judiciary and are being cited by the Canadian and US Supreme courts," he adds.