Experts fault judiciary purge

While the move by the new Kenyan government to rid the judiciary of the deep-rooted graft has invited accolades from locals and international donors alike, there are growing fears that the purge in the judiciary could interfere with the smooth implementation of a new constitution. Legal experts warn that the government should be careful since it is the same judiciary that is expected to breathe life into the new constitution through interpretations that will allow it to become a living document, given that disputes are set to arise once the new document comes into force. In October, the president Mwai Kibaki-led National Rainbow Coalition (NARC) government suspended a total of 23 Court of Appeal and High Court judges, on allegations of high-level corruption in the course of their duties. The unprecedented purge in the judiciary, though part of NARC's pre-election promise, has a had a major impact on the operations of Kenya's court system with experts arguing that the impact might be felt in next two years owing to the fact that some of the country's most experienced and respected judges were also caught up in the swoop. Lawyer-politician Mirugi Kariuki, while supporting the "clean-up" in the judiciary-regarded as Kenya's most corrupt arm of government-expressed apprehension that a "wounded" judiciary could hit back at the expense of a new constitution. As he put it, "It is not the letter of the law that matters, but the word of the judge in any given ruling that can significantly alter the meaning of a particular section of the constitution". Already, Kenyans last year witnessed signs that the judiciary has the capacity to scuttle constitutional reforms or punch holes into a new constitution, when two judges, Vatalis Juma and Moijo ole Keiuwa, went to court to stop the process on account of radical recommendations by Constitution of Kenya Review Commission, that suggested that all judges must resign and seek fresh mandate. But more telling, is the period between early1980s and early 1990s, when judiciary failed to uphold the Bill of Rights and where all cases challenging detentions without trials and torture were thrown out by judges who were fearful of offending the former president Daniel arap Moi. As a result, the judiciary succeeded in subverting the constitution through their rulings, that gave the impression among the many less-informed public, that detention without trial and state-sponsored tortures were constitutional, especially if the victims were said to be "subversives" out to sabotage the government. Now, as some features of the new constitution such as the proposed post of the prime minister continue to raise regional and ethnic temperatures, legal experts are apprehensive that relatively inexperienced judges-most of whom owe gratitude to the appointing authority-is a recipe for further disputes over the new constitution depending on how they might rule in cases touching on the new document. "We are likely to see a situation where judges will be forced to look over their shoulders while presiding over disputes arising out of a new constitution since they will be worried that the chief justice can simply set up an in-house investigations and send them packing once adversely mentioned," asserted the Kanu shadow minister for constitutional affairs, Mutula Kilonzo. As it is, the lingering fear is that the aftershocks of the purge could have a major impact on the judiciary's capacity to preside over disputes that will arise over the new constitution, as legal experts argue that dispute resolution process should be handled by a judiciary that in itself is not anxious of the outcome of the judicial and constitutional reforms. The question now is whether to entrust a new document in the hands of a judiciary comprising the old school of thought, or new crop of judges that might not have enough experience to handle weighty constitutional matters. Thus, the government, despite immense public goodwill to weed out corrupt members of the judiciary, have to undertake a delicate balance between delivering on its promises for expeditious reforms in the judiciary, and the need to tread carefully lest it grossly interferes with the independence of the judiciary in the name of reforms. The ongoing constitutional reforms are expected to deal comprehensively with the alleged corruption in the judiciary, political interference, the independence of judges and the mechanisms for their appointments. Sceptics such as the Kanu chief whip, Justin Muturi, who is also a lawyer by profession, is not impressed. "It might sound politically exciting to call for the mass resignation of judges or total overhaul of the judiciary. But what we are seeing is that the judiciary has been put up for lynching without taking into account that the rot in the judiciary is a reflection of the rot in society," he argued. This stance is bordering the growing concern that the Kibaki government could be out to replace those judges perceived to be loyal to the former president Daniel Moi and install friendly judges in case the underlying differences over some proposed constitutional issues ends up in court. One of the circumstantial evidence cited by those opposed to the way the government is handling the judiciary issue, is the fact that president Kibaki has gone ahead to appoint new judges under the auspices of the discredited current constitution contrary to expectations that future high-level appointments in the judiciary were to await a vetting mechanism. As it is, Kenyans are eagerly awaiting the implementation of a new constitution that will give guidelines for appointments in the judiciary and put an end to the belief that any in-coming government strives for a judiciary that will do its bidding. As was summarised by veteran Nairobi lawyer, Lee Muthoga, "The ultimate goal of any government the world over is to try and have a judiciary subservient to it as part of political survival. But it is up to the judiciary to differentiate whether it is serving the state or the government of the day".