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".