Sharp axe of reforms on the necks of Wako and Gicheru

by Martin Mutua

The wind of change is blowing and two men at the helm of the justice system are unlikely to withstand pressure building up for their removal.

The tide is turning against Chief Justice Evan Gicheru and Attorney General Amos Wako who have been blamed for a litany of failures in their departments over the years.

Vice-President Kalonzo Musyoka added his voice to the debate at the weekend, saying reforms are in the offing in the Judiciary "in the next few weeks".

Observers see this as a definite sign that the much-desired changes at the two crucial offices will be undertaken.

After Justice (Rtd) Aaron Ringera was forced to resign from the helm of the Kenya Anti-Corruption Commission and Maj Gen Hussein Ali moved from Vigilance House, Wako and Gicheru are seen as the next two obstacles in the path of reform.

Sources within ODM are firm that the replacement of the two was inevitable if the necessary judicial reforms are to be undertaken.

Police reforms

Last month President Kibaki replaced Ali with GSU Commandant Mathew Iteere, in line with recommendations by the Justice Philip Ransley task force on police reforms.

Justice Evan Gicheru

In his report, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Prof Philip Alston berated the Police for failure to check extra-judicial killings.

However, Alston reserved his harshest criticism for Wako, describing him as "the chief obstacle to prosecuting anyone in authority for extra-judicial executions".

Alston went on: "He (Wako) has presided for a great many years over a system that is clearly bankrupt in relation to dealing with police killings and has done nothing to ensure that the system is reformed. In brief, Mr Wako is the embodiment in Kenya of the phenomenon of impunity," he said.

External pressure has been sustained from the US ambassador Michael Ranneberger maintaining last week that Washington "shall continue to push for meaningful reforms and to ensure leaders do the right thing".

Obama’s position

Ranneberger has been quick to reaffirm that his is President Barack Obama’s position.

The Justice Philip Waki Commission of Inquiry into Post-Election Violence and Justice Johann Kriegler Independent Review Commission of the bungled 2007 presidential election singled out the AG for not doing much even as the country veered towards a precipice.

The Kenya National Commission on Human Rights Chairperson Florence Jaoko says the statement they issued together with the Law Society of Kenya calling for the replacement of Gicheru still stands.

"There have been several attempts to reform these institutions but not much has been achieved and this is reason enough for them to pave way," she added.

Post-poll chaos

Jaoko said if Kenyans had confidence in the Judiciary then perpetrators of post-election violence would have been tried there.

She said there were several administrative changes within the Judiciary, which did not require the political will of the Executive to carry out.

"For instance, what had stopped the Judiciary from coming up with regulations on the appointments of Commissioners of Assize because it does not require the rewriting of the Constitution? she asked.

Garsen MP Danson Mungatana who said the judicial reforms must start with change of leadership.

"The reforms that are being proposed by the Justice Ouko task force cannot be implemented by Wako and Gicheru because that will be asking for too much of them and this must be repeated over and over again," said Mungatana.

Speaking to The Standard on the telephone from Geneva, Switzerland, on Sunday Mungatana said every five years the Legislature and the Executive redefines itself but the Judiciary does not.

"We can’t have a Chief Justice who stays for ever and a life Attorney-General," he added.

But the chairman of the Parliamentary Committee on the Administration of Justice and Legal Affairs Abdikadir Mohammed says his committee was more interested in having the judicial reforms carried out as opposed to "who was going to preside over them".

Abdikadir says the "ping pong game" between ODM and PNU about whether Justice Gicheru or Amos Wako be replaced for the reforms to be undertaken was not within their mandate.

"Our push is to have Kenyans regain confidence in the Judiciary and for that we shall stop at nothing to ensure that these reforms are undertaken to be able to have Kenyans access justice in a Judiciary they have confidence in," he added.

But Justice Minister Mutula Kilonzo defended the CJ saying he had already accepted reforms to be undertaken in the Judiciary under his watch and therefore the issue of whether he be replaced or not did not arise.

Last week ODM and PNU ministers differed during a Cabinet committee meeting that had been convened to review the Justice Ouko task force report.

The meeting chaired by Prime Minister Raila Odinga at his Treasury House offices ended with ODM ministers rejecting the report.

Bomas draft

The ODM team demanded that reforms as proposed by the Bomas draft be adopted and implemented.

The ministers, who included James Orengo (Lands), Dalmas Otieno (Public Service), Mohammed Elmi (Northern Kenya) and Jeffa Kingi (East African Community), differed with PNU’s Robinson Githae (Nairobi Metropolitan Development), Moses Wetang’ula (Foreign Affairs) and Mutula. The ODM team was categorical that they would not allow the CJ to chair the Judicial Service Commission that would oversee the implementation of the reforms.

Speaking at Kakamega Prison yesterday the Vice-President said reforms in the Judiciary would be in line with what Kenyans have been expecting.

However Kalonzo did not specify whether the Justice Ouko task force report would form the basis of these reforms.

"The expected reforms will include strategies to decongest our prisons countrywide. Kakamega is one of the most congested prisons," noted Kalonzo.

Remandees at the prison told the VP that shortage of judges and magistrates was to blame for the congestion.

He said magistrates and judges would be posted to areas with backlogs of cases and that the expected reforms would seek to restore confidence Kenyans had in the Judiciary.