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Courts finally free to stamp their authority

By - | August 27th 2012 at 00:00:00 GMT +0300


The new Constitution has bolstered Kenyans’ faith in the Judiciary with citizens trooping to the courts to reverse unpopular Government decisions.

Recent landmark rulings confirm the independence of the Judiciary in ensuring legal checks and balances against excesses of the Executive and Legislature.

Overturning of the unilateral appointment of 47 County Commissioners, lifting the ban on Mombasa Republican Council (MRC) and Justice Ombija’s ruling on the arrest of wanted Sudanese President Omar al-Bashir are examples of key rulings.

These cases indicate a reformed judiciary intent on making a clean break from its tainted past.

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Coupled with the radical vetting of judges that has seen some losing jobs after failing integrity threshold, Kenyans’ hopes have further been boosted.

Other cases that have thrust the Judiciary into the limelight include the upholding of the Independent Electoral and Boundaries Commission (IEBC) constituency list and currently a petition challenging the integrity of five presidential front-runners.

Chief Justice Willy Mutunga has constantly reiterated that the Judiciary is a separate arm of Government and would not brook interference from the Executive.

“Justice is no longer for sale, the era of impunity manifested by defiance of court orders is gone, and judicial officers must bring honour and dignity to their offices,” declared Mutunga last week during the Judiciary Marches week in Nairobi.

This public display of independence by the CJ has given Judges the courage to uphold the country’s new Constitution rather than undermine it.

After the controversial appointment of County Commissioners in May, a lobby group quickly filed a petition in the High Court challenging the appointments.

Lady Justice Mumbi Ngugi, without mincing words in her ruling, said that President Kibaki flouted provisions of the Constitution by creating non-existent positions of County Commissioners and further appointing people to fill them.


She also held that the President violated the provision on gender balance and those that required him to consult Prime Minister Raila Odinga in line with the National Accord and Reconciliation Act.

The suit was a consolidation of a petition by Centre for Rights Education and Awareness and two activists Patrick Njuguna and Charles Omanga.

The ruling on MRC was received with jubilation and resistance in equal measure.

A three Judge Bench sitting in Mombasa ruled that the Kenya Gazette notice that outlawed MRC was unconstitutional.

They held that the Executive acted unconstitutionally in banning the secessionist group.

The judges advised the group in the case filed by MRC Secretary General Hamza Randu to register as a political party and pursue its agenda through legal means.

The Judges John Mwera, Mary Kasango and Francis Tuiyott said the State had failed to demonstrate that the ban on the separatist group was justifiable and proportionate.


This ruling irked the Government and its security operatives and the Attorney-General Githu Muigai immediately appealed.

Then there is  Judge Justice Nicholas Ombija who has undoubtedly entered the history books.

His ruling that President Al-Bashir should be arrested the next time he sets foot in Kenya, was revolutionary, a Kenyan and continental first.

 No African judiciary ever has issued a warrant of arrest against another country’s head of state.

This case filed by the International Commission of Jurists, Kenyan Chapter through its Executive Director George Kegoro was audacious and signaled that the previously maligned Judiciary is on the mend.

This follows failure by the Kenyan Government to arrest Bashir when he visited the country for the promulgation ceremony of Kenya’s new Constitution on August 27, 2010.

 Abuse of office

And with the debate raging on weather two presidential aspirants facing crimes against humanity at the International Criminal Court (ICC) are eligible to run for public office, three activists have moved to court to seek an interpretation.

Patrick Njuguna, Agostino Netto and Charles Omanga want the High Court to determine whether Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto are eligible to run for the presidency with the ICC cases hanging on their necks.

However, three other presidential contenders, Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka and Deputy Prime Minister Musalia Mudavadi have been roped in the ongoing case.

The activists now want the High Court to determine whether Raila, Musyoka and Mudavadi should be allowed to run for office in the face of allegations of abuse of office, nepotism and corruption.

Odinga is accused of nepotism, grabbing the land on which the Molasses Kisumu plant stands and working as a lecturer at University of Nairobi without having clear academic credentials.

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