There is a popular phrase that justice cannot be bought, but this is one of those useless remarks that hold no water.
You have to forgive my scepticism. Perhaps due to our “feigned ignorance” and selective amnesia, we seem to have forgotten that the Deputy Chief Justice was charged with graft, and not so long ago, a former Supreme Court justice was accused of taking millions in order to influence a case. This is not a good picture for our democracy and the rule of law.
The Second Liberation was for among other reasons, a cry for justice for Kenyans who had lived through years of oppression under the political class. It is still debatable if justice has been achieved through the 2010 Constitution, but a good majority agree that things are better than they were under the old dispensation. Have we achieved full liberation? I think not.
During the anti-corruption conference a few weeks ago, Chief Justice David Maraga came under heavy attack from almost all institutions working to fight corruption. The Judiciary was blamed for delayed justice and giving unnecessary bails to corruption suspects who later go about destroying key evidence to circumvent justice.
It is interesting that we look upon the Judiciary as an unbiased arbiter, and as independent arm of the government, and yet from the look of things, is veiled attack on its very independence. We seem to support the courts when they rule in our favour, and attack them for what we deem as unfair judgement. To further illustrate this, in last years’ presidential petition ruling, the Jubilee Party termed the courts as corrupt, going as further to state that they had been infiltrated by foreign powers and crooks. They promised to revisit. On their part, Nasa termed the courts’ decision as historic for the African continent. The big question then becomes; do we really understand the utility of judicial processes?
The Constitution of Kenya Review Commission in the initial states of drafting the new document noted, “The Judiciary rivals politicians and the police for the most criticised sector of the Kenyan public”. This then set the stage for what came to be known as “radical judicial surgery”. This was meant to restore confidence in the courts, which it did. There were also wider and collaborated efforts by the civil society and donors who supported the judicial review. Kenyans looked up to the courts, and then political interests took the centre stage. The recent remarks aimed at the Judiciary come at a period when in the “eyes of the public” the judiciary is at its lowest. But, public opinion, while an important part of key public decisions cannot always be trusted. This is because the public opinion is merely the echoes of key opinion shapers, and in the words of David Dixon, informed by the media more than personal experiences.
For Kenyans, all they want to know is that they can count on the courts for fair dispensation of justice; for the suspects, they hinge their innocence on the trust that the courts are impartial, and for the citizens; the courts check on the excesses of state power. The Judiciary works for everyone. Whether the courts rule in our favour or not is neither here nor there!
Another all-important institution that holds key to justice in this country but less talked about is the Judicial Service Commission, which is a commission anchored in Article 171 of the Constitution.
The stage is now set for another tussle between the status quo, and those seeking to reform the Judiciary. The Law of Society of Kenya is set to hold elections for the male representative at the commission in May. Serious lobbying behind the scenes is underway.
However, what has shocked the legal profession to the utter disbelief of many is the decision by the LSK council to go against the independent committee meant to vet all the candidates for the position. The committee disqualified two contenders — Gathii Irungu for presenting his nominations papers out of time and for failing to meet all the requirements. Tom Ojienda was found lacking the mandatory Tax Compliance Certificate.
Interestingly, the council apart from the president Allen Gichuhi and three more individuals voted to defeat the committee’s recommendations. It is alleged some members of the council were bribed to suit certain individual’s interests.
This is a serious setback to an institution that is supposed to uphold the rule of law at all times. This begs the question, why have rules if you can’t abide by them? Rules are not meant to lock out or favour anyone. You either qualify or you don’t. JSC is an employer of judicial officers and to have representative there who don’t meet the values set by Chapter Six is a travesty of justice. Besides, a true testament that anything in this country is up for sale to the highest bidder at any given time whenever the bid is made. What a shame!
Antony Nkuubi, Executive Director, Governance Pillar Organization