Kenya: Winds of Change Are Blowing Through the Corridors of Justice

Emeka Mayaka Gekara

14 May 2011

Nairobi — Former President Moi must be watching political events in Kenya unfold with bemused sympathy for his successor, President Kibaki.

The President’s nominees for the posts of chief justice, attorney-general and director of public prosecutions are rejected.

Candidates for these constitutional offices – including Appeal Court judges – are subjected to ruthless inquisition by radicals who earned themselves a reputation for calling for judicial reforms.

And then Dr Willy Mutunga, one of his former detainees, a “dissident”, is nominated to lead the Judiciary. Such was unthinkable during his reign.

Never be the same

“Kenya will never be the same again,” wrote Prof Makau Mutua on Facebook in celebration of the appointment.

“Dr Mutunga’s nomination is proof that though the arc of history is long, it bends towards justice. He brings to the Judiciary a record of integrity and probity, hitherto unknown in those corridors.”

With Dr Mutunga “on board”, the law professor said the battle should now move to the next frontier – the vetting of judges for the Supreme Court and other courts.

“We must now remain vigilant to ensure that the judges of the Supreme Court and other courts below it are persons of impeccable integrity and beyond reproach. The Judicial Service Commission must keep its eyes on the prize.”

By nominating Dr Mutunga, a senior counsel, and Ms Nancy Barasa for deputy chief justice, the Judicial Service Commission signalled a strong determination to break with the past and entrust stewardship of the Judiciary to reformist minds with a record of integrity and professionalism.

The current Judiciary suffers from a confidence crisis, which the new Constitution sought to cure by demanding vetting of all members of the Bench.

It has been suggested that the nomination of an outsider shows a lack of confidence in the current Bench, which raises questions about the fate the sitting judges.

The highly publicised interviews for the post of chief justice indicate the planned vetting of the Judiciary will the most radical yet, which might force many judicial officers to opt out.

The interviews also signalled that past judgements are landmines waiting to explode on the judges when vetting comes.

The rejection of judges, especially appellates, who failed to get the CJ’s post, seems to be a poignant signal, a parting shot from the JSC.

If so, then they stand little chance of being members of the Supreme Court, particularly if the same accusations that were used to knock them out of the race for CJ are used to lock them out of the Court.

“Their rejection is a vote of no confidence in the Court of Appeal and points to possible exclusion from the Supreme Court. It is a case of the chickens coming home to roost,” said a lawyer who sought anonymity for fear of antagonising the JSC.

Appeal Court judges who were rejected by the JSC are Riaga Omollo, Samuel Bosire, Alnashir Visram and Joseph Nyamu.

Others judges rejected were Hannah Okwengu, Mary Ang’awa, Martha Koome, Msagha Mbogholi, Kalpana Rawal and Kihara Kariuki of the High Court.

Judges Omolo, Nyamu, Visram, Mbogholi, Okwengu, Ang’awa and Rawal have applied to sit in the Supreme Court.

Others in the race are judges JB Ojwang’, Mohammed Ibrahim, Muga Apondi, Jessie Lesiit, former nominated MP Njoki Ndung’u and Kathurima M’Inoti of the Law Reform Commission.

Major casualty

Interviews with lawyers revealed that the Appeal Court could be the major casualty, which may trigger a greater crisis of public confidence in the court, especially if its judges are not promoted to the Supreme Court.

The views of lawyer Ahmednasir Abdullahi, an influential member of the JSC, may help to indicate the future.

Writing in the Sunday Nation way before he was elected to the JSC, Mr Abdullahi “moaned” the level of incompetence and corruption in the Judiciary and asked that all judges be kicked out with the passing of the new Constitution.

“History has taught us that the Kenyan Judiciary is irredeemable. There are about 10 excellent judges in the High Court and one or two in the Court of Appeal that deserve a chance to serve in the new dispensation.

“But even these ones, and with profound apology to them, and in order to have a clean break and for the sake of this nation, the new Constitution must show them the door. All of them.”

But Senior Counsel Paul Muite warns that the judges should not be sacrificed for mistakes committed by the Executive.

“It must not be forgotten that the Judiciary got into this sorry state because of the Executive. Under past regimes, judges were forced to serve at the pleasure of the Executive,” he told the Sunday Nation.

“Those judges who have a reformist mind and background, who have distinguished themselves as progressive and whose judgments and rulings have gone a long way in the development of jurisprudence should be allowed serve in the Supreme Court.”

The JSC has the mandate of recommending individuals to be appointed as judges.

AllAfrica – All the Time