Judicial vetting is the new mantra of the chattering classes and it is time I put in my two-shillings' worth. Let us not miss the woods for the trees, concentrating only on the little matter of vetting judges and appointing a Chief Justice of the Supreme Court. This is not the only institution in dire need of reform. There is still the question of who will head the National Police Service, who will become the Attorney-General and who will be the Director of Public Prosecutions. In the administration of justice, these three offices will be key to ensuring that the process of justice is as fair as possible.
The President of the Court of Appeal and the Principal Judge of the High Court shall be elected from among the members of the respective courts and there is no controversy surrounding their imminent elections. It is with the Chief Justice that the chattering classes have concentrated on, with the Law Society firing the first salvo by publishing a list of judges it feels are ineligible to appointed to this position. However, the Kenya Magistrates ad Judges Association has retaliated by pointing out that the Society is out of line in blacklisting the 16 while the LSK itself is riven with internecine squabbles that threaten the smooth management of its affairs.
The LSK, under the recent chairmanship of Okong'o Omogeni, has distinguished itself by taking principled stands in matters of national importance, playing a strong role in ensuring that the constitution review process was not hijacked by self-interested parties. Mr. Kenneth Akide, the embattled new chairman, has been taken to task for not being 'in charge'. It is early days yet to start calling for his removal and the members of the Society would be best advised to focus on what the Society can do to ensure that the process of reforming the Judiciary is not hijacked by the self-interested members of the KMJA.
Right or wrong, the members of the Society chose to elect Mr. Akide as chairman and it is hypocritical of some of the members to start calling for his removal months after his election. As with all things, unless he runs the Society into the ground, his tenure shall be judged in the harsh light of history and if he is found to have been wanting, the judgment of posterity will be unforgiving indeed.
As to the vexed question of whether the LSK can blacklist individuals it deems to fail the test of leadership for the position of the Chief Justice, the LSK is within its rights to do so. The Magistrates and Judges are free to disagree with this position but they cannot claim that by expressing a well-considered opinion, the LSK is infringing upon the rights of a few members of the KMJA. The LSK, through its members and through its partnership in the administration of justice with Bar, is the primary consumer of the services offered by the Judiciary.
Practicing advocates are in a unique position to tell who among the members of the Bench are fit to hold office. It is reasonable, therefore, that the Society should advise the country at large of its experiences dealing with the blacklisted judges and to ensure that their lacklustre careers do not proceed beyond their current level. It is only fit for the men and women who spend hour upon hour dealing and relating to the 16 to remind them that just because they wear the robes of judicial authority, they are not a law unto themselves and that they must be held to account for their sins of omission or commission.
The administration of justice in Kenya is a broken. The ham-fisted radical surgery perpetrated by the disgraced Aaron Ringera did not solve anything but ended up being a vehicle for the disgruntled and malcontent to settle scores with scores of sitting judges and magistrates. The current reform agenda must not be blighted by the need to settle vendettas, but with the sole objective of improving the system of justice in Kenya. Chief Justice Evan Gicheru, for all his faults, has comported himself with dignity and his silence on the imminent end of his tenure speaks volumes of his recognition of the need for a new man at the top. He should be given a send-off that befits his remarkable decision not to challenge the end of his reign. When you recall the self-righteous whining of the disgraced Chairman of the defunct Electoral Commission of Kenya, you will agree that Justice Gicheru has done what we have wanted him to do and while we will not be sorry to see the back of him, his departure should signal that all not well in the corridors of justice.
In the past few days, criminal defendants have laid bare the shortcomings of the system. They have taken the unprecedented step to write to the Chief Justice and the Minister for Justice regarding the sorry state of affairs, where money talks or justice is delayed and denied. They point out that unless you are a member of the Kenya's plutocracy, you will not benefit from the operations of the justice system. Instead, you will be held in remand while the members of the fat wallet society are treated with kid gloves, their matters expedited and their case files closed.
If you are a poor man, chances are that the day you are remanded into custody is the last day the world will treat you fairly or with dignity. There are men and women who have been in remand for the better part of two decades, their case files being shuffled from one desk and one court to another without resolution. In the mean time, people like Thomas Gilbert Patrick Cholmondoley have their cases expedited and resolved in the shortest time possible, putting nary a dent in their well-ordered lives. This is a situation that can only be changed when the judges and magistrates are put on notice that it will no longer be business as usual until all Kenyans enjoy the same level of service as the moneyed and well-connected.
For the reform of the Judiciary to succeed, it must be accompanied by reforms in other parts of the justice system, including the police, the State Law Office and the legal profession. Lawyers cannot hold up cases simply because they dislike the decisions judges and magistrates make regarding their professional conduct. The police cannot be allowed to become guns for hire, 'negotiating' settlements with accused persons as they see fit. The State Law Office must be professionalised and the newly created office of the Director of Public Prosecutions must be manned by men and women of integrity and dedication. Finally, the citizenry must participate in the process, ensuring that the professional and non-governmental bodies represented in the vetting process truly reflect their needs and priorities and that they have their interests at heart.
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