Time to Govern

Okiya Omtata Okoiti is at it again, this time having trained his guns on the process of vetting judges, equating the yet-to-be-appointed panel to a kangaroo court that will be "unfair, unjust and counterproductive" (Yes, reform the Judiciary but do not subject judges to mob justice, Saturday Nation, September 4, 2010). He argues that the process will negate the rule of law and deny the judges' constitutional rights to the equal protection of the law and freedom from discrimination. How he draws these conclusions from a programme that has yet to commence is beyond the realm of reason and betrays his deep animus against the Constitution, one that was ratified by the majority of Kenyan voters, and one that was adopted in view of the fact that many of our national institutions, including the Judiciary, had fallen into disrepute.

Mr. Omtata is holding onto the fallacy that one part of the Constitution is superior to the other, a position that was adopted by the High Court of Kenya in the now infamous Kadhis' Courts case decided a few weeks before the Referendum of August 4, 2010. Legal scholars of no mean repute, including the Minister for Justice, have weighed in that it is not possible to read the Constitution selectively, that the whole is to be read as one and that no portion of the Constitution is greater or superior to the other. However, the Constitution is drafted in such a manner that the process of tampering with the Bil of Rights is made necessarily more difficult than has been our experience under the old Constitution. Therefore, the rights of the Judges as enshrined in the Bill of Rights will be jealously protected. If any of the judges undergoes what he or she determines to be an unfair process, their rights as found between articles 26 and 51 (Chapter 2) can be exercised for their benefit and they will take their chances with the judicial institutions that we wish to reform.

Mr. Omatata is blind to the fact that for decades the judiciary has been the stumbling block to effective administration of justice, where justice was for sale and only the high and mighty amongst us could afford to approach the hallowed halls of the judiciary with any confidence. majority of Kenyans have been subjected to the short end of the stick and many have been denied their rights, have been deprived of their property and have suffered incarceration or worse as a consequence of judgments handed down by incompetent and corrupt judges and magistrates. One of the reasons why Kenyans agitated for over 3 decades for a new constitutional dispensation was the fact that the Judiciary was no longer perceived as an honest arbiter of disputes. It had become a club whose membership was restricted to men and women who were incapable of seeing the law as a tool for righting the wrongs in society and instead became a weapon which the State used to suppress and oppress the majority. In many of the hearings held by the Ghai Commission, the people desired a change in the Judiciary and vetting was deemed to be the only method that would pass muster. Many of the submissions that were made to the Committee of Experts reinforced this view and so it was that section 26 of the Second Schedule was enacted. In talking about the rule of law, Mr. Omtata must admit that the vetting of judges and magistrates falls withing the ambit of the implementation of the Constitution and it reflects our deep desire to be governed according to the rule of law. Unless he is suggesting that we should revert to the old way of doing things in which the law was applied selectively, he must bow down to the wishes of the majority who wish to see the Judiciary reformed and reconstituted. On this question, Kenyans have been adamant and Mr. Omtata must provide proof positive that the process has been or will be compromised before he starts labelling a yet-to-be-appointed panel a kangaroo court.

Mr. Omtata is right to ask that the vetting of judges and magistrates should not violate their fundamental rights. However, given that the vetting has been codified in the Constitution, it is up to Kenyans to take this process seriously. Kenyans must be involved every step of the way, from the appointment of the independent panel to the procedures and rules that it will adopt to the acceptance of the recommendations that it will make without rancour or animus. The Judiciary will be the primary organ for the proper interpretation of the Constitution and it is imperative only judges and magistrates of integrity, intelligence and skill be allowed to interpret the Constitution. If the process of vetting gives us an independent Judiciary that we can trust, the process will have succeeded. Its success however, will be determined primarily by how much involved as a nation we are willing to be. Therefore, it is a good thing that membership of the panel is as as broad-based at it is with its membership not drawn exclusively from the legal fraternity. The interpretation of the law is so important that it cannot be left in the hands of a minority, but must seek to reflect the professional diversity of the nation. Therefore, by making the panel as representative as possible, the drafters of the Constitution have ensured that the process will not be limited to legal or technical matters only, but will also address moral and other factors too. Mr. Omtata has agitated over the years for the inclusion of the people in the management of the affaits of state, so I would think that he would be the first to suggest ways and means in which the panel could accomplish its mandate to the best of its ability instead of taking potshots at the panel even before it has began its task. Mr. Omtata, it is time to govern. The days of agitating from the sidelines is over. Put up or shut up!