Wednesday, June 05, 2013

Mr Ng'eno did not go far enough.

The Goldenberg Affair keeps taking scalps the longer it remains unresolved. In this month's Nairobi Law Monthly, Eric Ng'eno, he of the acerbic pen and quick wit, lays into the so-called Goldenberg judge, Mr Justice Joseph M Mutava of the High Court of Kenya, now suspended (Goldenberg impunity and the judiciary.) Mr Ng'eno's apparently dispassionate diatribe against the judge is spot on; Mr Mutava has behaved in a manner that has more than likely contributed to his suspension and the President's appointing of a tribunal to investigate his conduct. Not to mention, as further proof of his egregious behaviour, the litany of complaints from the Law Society of Kenya.

But Mr Ng'eno pointedly and inexplicably refuses to take his examination of the Mutava Connection in the Goldenberg Affair to its logical conclusion, which happens to be the "reforms" taking place in the administration of justice, generally, and in the Judiciary, in particular. Despite high-profile setbacks, the popular narrative that the Judiciary is well on its way to salvation and rehabilitation has not missed a beat. From the appointment of a Judicial Service Commission under the new-ish Constitution, to the appointment of the Supreme Court to the weeding out of judges of dubious capability or distinction from its ranks, the Judiciary continues to receive patina upon patina of goodwill. The Mutava Connection in the Goldenberg Affair is proof that regardless of the number of coats of white-wash applied, only root--and-branch changes in the administration of justice will give the Judiciary a clean bill of health.

The various partners in the administration of justice are all tarred with the same brush. Taking the Goldenberg Affair as our common denominator, the police, the Central Bank, the Law Society, the Office of the Director of Public Prosecutions, the Judiciary (including the Judicial Service Commission), the Office of the Attorney-General and the press, not one of these institutions has had the testicular fortitude to do the right thing. The police, as always, remains a dark place into which all those who venture lose their humanity and their souls. Corruption and murder continue to dog its every attempt at "reforms." On the truly sunflower-inspired optimist believes that reforms will take place in the National Police Service of Kenya. The Central Bank? Since even before the Goldenberg Affairs brought into the discomfiting light of day the truth about its vaunted autonomy, the Central Bank was, and remains, the piggy bank of the well-connected five-fingered-discount-loving "investor." The Office of the DPP and the Office of the A-G are the Siamese Twins atop the legal profession responsible for setting the pace, and the tone, of the behaviour of the over 7,000 advocates on the Roll of Advocates. Conflicts of interest seem to define their every official act.

The Judiciary demands special attention if for nothing else than for the "reformist" tag that it continues to wear despite the continual attacks on this facade by events such as the Mutava Connection to the Goldenberg Affair. Take, for instance, last year's successful purchase of Mercedes-Benzes and the payment of enhanced travel allowances for members of the Judiciary. At one point, the Chief Registrar claimed that the Chief Justice had to be bought a Mercedes-Benz similar to that of the Vice-President in order to demonstrate that though the three arms of government are separate, the Judiciary is still an equal of the Executive and Parliament and that the Chief Justice must be treated as a co-equal of the President or the Speakers of Parliament. She repeated the same argument regarding the travel allowances for members of the Judiciary. It never occurred to the Chief Registrar, or the Chief Justice and his officers, that the naked avarice by the Judiciary reinforced in the minds of Kenyans that even the whiter-than-white endorsement of the elite would not erase the image of pigs-at-the-trough that the entire government is today associated with. Now the Judiciary is talking of purchasing boats and aeroplanes (not forgetting that public procurement, whether in the Executive, Parliament or the Judiciary is the surest place to engage in massive graft.) We will leave the interventions of two members of the Judicial Service Commission in these matters for another time.

Mr Mutava is not an isolated case; Mr Mutava is the symptom of the great challenges we face in reforming the Judiciary. Hagiography is not an effective way of guaranteeing results; it is quite effective in papering over the flawed system the Chief Justice presides over. Kenyans owe Kamlesh Pattni a debt of gratitude; without his bull-in-a-china-shop rampage through the corridors of justice we may have continued to believe the illusion that when it comes to the Judiciary, change has arrived.

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