Next CJ should not be political a hawk

There is a new Kenya without new Kenyans. Resilient old habits dominate, even with attempts to wash the past with the new Constitution.

The Grand Coalition Government of the Orange Democratic Movement and the Party of National Unity does not belong to the future. At least the coalition should not have a future beyond the 2012 General Election.

The coalition was intended to be a bridge between the old Kenya and the new Kenya. The new Kenya would have a new Constitution, reformed public institutions, a stronger and recast Judiciary, an invigorated Legislature, and a devolved Executive, which is alive to the national interest.

The new Kenya would also have a reformed police force, a reformed electoral system, and laws that would give everyone equal rights to national opportunities.

These are the essence of what the Serena Talks collectively presented as Agenda Four issues in 2008, with execution commissions and deliver-by-dates.

The commissions include the Committee of Experts that delivered the key to the new Kenya, via the new Constitution, which was promulgated on August 27.

Power sharing between ODM and PNU was, and still should be treated, as a transitional mechanism. This was precisely what its chief architect, Kofi Annan, former United Nations secretary general, designed it to be.

To assign this coalition other duties other than what the National Accord and Reconciliation Act 2008 say is to plant seeds of future discord, especially in the administration of justice.

The coalition, which was imposed on wananchi by the excesses of the old Constitution and greed of its custodians, should not decide the architecture of the reformed Judiciary. Clashing interests of ODM and PNU should not determine the next Chief Justice and the Attorney General. Doing so would allow political interests to capture the two critical institutions of justice.

The President and the Prime Minister must certainly consult on the appointments to the two institutions as the new Constitution demands. But that should not override merit in the Bench and the Bar, seniority, integrity, independence, personal records and principle.

Robbed the Judiciary

Virtues should not be traded for vices or political correctness. It should always be remembered it is the greed of the power clique that robbed the Judiciary of its independence. Top actors of the Judiciary and the Attorney General’s side of the Bar, became hostages to political and vested interests.

The Executive and the Judiciary went to bed so intimately they lost touch with the public interest. Justice was commoditised to serve the interests of those who had the power and the wherewithal to deal and compromise.

Sadly, the old mindset still lingers with reports of deals in the reconstruction of the new Judiciary. If politicians have their way, and they are dealing to have their say, the next Chief Justice, Attorney General, Deputy Chief Justice and top dogs of the Judiciary would be products of horse-trading.

Already, partisan politicians have lined up their preferences for the Chief Justice and the Attorney General’s offices. Horses are being traded where there are no stables.

When Chief Justice Evan Gicheru ships out in the next three months, PNU would prefer to nominate a replacement for the top judge. To make this possible, ODM would nominate a potential candidate to occupy the State Law Office. The incumbent Amos Wako is expected to leave Attorney General’s Chambers in the next nine months.

Gicheru has been the Chief Justice for eight years, and Wako has been at the AG for two decades.

The conspiracy between the top judge on the Bench, and the top lawyer, as the titular head of the Bar, has seen dramatic loss of confidence in the justice system.

The peak of the dearth of confidence in the Judiciary should, arguably, be the 2007 presidential election dispute.

ODM, aggrieved by the robbery of the presidential election, refused to go to court, citing lack of confidence in Gicheru’s Bench to arbitrate a high stake dispute. ODM refused to go to Gicheru’s court, even as now ‘reformed’ Martha Karua, then Minister for Justice and Constitutional Affairs, taunted the aggrieved to seek legal redress.

Matters got complicated for the Judiciary when Gicheru swore-in President Kibaki, as post-presidential election dispute boiled into horrendous violence.

Gicheru’s attempts to rewrite the history of the dark moment in a recent interview in a local publication, does not say why the aggrieved shunned his court.

Voiceless majority

Gicheru was seen as beholden to the status quo, and, therefore, would not deliver justice. Wako, on his part, watched as the violence spiraled. He, too, has been seen as the system’s AG, doing his master’s bidding. The man has smiled his way through two disparate regimes.

If the CJ has been beholden to status quo, the AG has been equally embedded to a system that has denied justice to the voiceless majority. The CJ and the AG are part of the reason the justice system has been crying for reform. Their replacements, therefore, should not be products of political dealing making.

To serve the public interest, the new Judiciary should not be constructed on frail, fractious, political compromises.

The writer is The Standard’s Managing editor Quality and Production.

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