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Judiciary slipping backwards, but who cares?

By Jenny Luesby | November 5th 2013

By Jenny Luesby

Kenya: Whatever happened to our new Constitution? For sure, there was a time, not so long ago, when it was a document people used to keep a copy of — reading it, referring to it — the foundation point for a new nation that would work better, rise, and be glorious.

But now, perhaps, we are too busy for that. Or are we just disillusioned? Did we give up?

Certainly, recent weeks have brought a torrent of Constitutional unravelling, and no-one, as such, seems to care too much. Entire institutions are being rebuilt back the old way, and who can even take the time to read basic documents or become marginally well informed — including, in most of this, our media.

For sure, we have a clamour now underway, when 38, or was it 60, MPs took it into their hands to remove the Constitutional right to a free press. For this case, the point of the Constitutional roll-back was suddenly explained.

Yes, parliament, there are few journalists who will report anything but press releases if you line them up for Sh1m fines and the loss of all their property as determined by a government-appointed council.

But while the media has risen to the occasion in observing that massive fines, and a ban on substantial media revenue sources, will quickly take us back to a history of a state funded publication, or two, churning out government and corporate press statements, our political reporters seem to have been remarkably less able in addressing the implications of all the other ways our Constitution is being set aside.

Take the Constitutional crisis underway within our judiciary. No one said press freedom was being removed because some media executive made sexual advances on an MP and this was the backlash! Yet how many people have knowingly informed me that our judicial implosion was a matter of a man who doesn’t like women much. Really?!

No. Sorry. That’s not the story.

Nor is it a story of rumours about building owners that have never been tabled, but only used to manipulate public opinion without substance or any truth — oh, how easy to rubbish reformers with an unproven rumour or two. It doesn’t even take more than that it seems: so, so easy.

Nor did the judiciary administration ‘lose’ billions. For while no-one much can be bothered to read the Judicial Service Commission’s charge sheet, some of us actually have. And counting all the rents on new buildings, the security deposits, the spending on new prefab court houses, the spending on a new computer network and partitioning of new buildings as ‘losses’, is ‘losses’ how?

Please let me never have an agreed budget to upgrade the infrastructure of one of our weakest institutions and then be told when all the building and furniture and computers are delivered through the right procurement committees that this was ‘losses’ — because the JSC, which wasn’t supposed to, didn’t make the decisions.

Yet not one of our political commentators can spot the flaw in these charges, or grasp the structural issue. The JSC does NOT run the judiciary. In fact, when the new Constitution was being drawn up, in the 2003 report before then, in all those task forces looking at why the judiciary was so corrupt and so unjust, a key problem, stated every time, was the absolute power of the Chief Justice.

Which is why the Constitution dictated a separation of powers. It added a brand new administration to run the judiciary, specified the Chief Justice to deal with matters of justice but NOT run the judiciary, and charged the JSC as experts drawing up policies and dealing with matters of injustice — meeting a proposed FOUR times a year.

Instead, the JSC has met almost 500 times, taken over running the judiciary under the Chief Justice, and, in recent weeks, every reform achieved in the last two years has been stopped. The typists catching up with the typing backlog have been fired.

The students logging mwananchi into the family courts registry so as to ensure everyone ‘gets’ their file have been axed, the judges and magistrates removed by the vetting committee are going back on half pay and appealing, staff suspended for corruption have been reinstated, moves to digitalise records of legitimate advocates have been stopped, and etc. Reform ends.

The judiciary is back under the Chief Justice, who himself complained not much more than a year ago that the former CJ’s position as ‘monarch’ had created an organisation that could not deliver justice.

Yet, it is our judiciary that is the prime guardian of our new Constitution. Our Supreme Court is ruling on laws that are illegal because process was not followed. Our High Courts and others are hearing cases over who has what powers under this new Constitution.

But our very judiciary has been claimed by a JSC that says it is accountable to no-one in seizing new powers – not Parliament, not the President, no one. God, maybe?

But perhaps we’ll have a good rainy season. Perhaps we just like things the way they always have been. A rich and powerful elite, a middle class that cares only about their latest smart phone, and a vast majority living unfair lives, without justice, without compassion, and mostly without hope.

Whatever. OK. Bye bye Constitution.

The writer is Consulting Editor at The Standard Group.

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