Thursday, August 22, 2013

Chickens coming home to roost.

When the Judicial Service Commission sent the Chief Registrar of the Judiciary on forced leave, it highlighted a significant flaw in how the public service is administered in Kenya. Gladys Boss Shollei, the hard-charging Chief Registrar, was sent home without being informed of the reasons for the decision to send her on forced leave. Allusions to a dictatorial management style and unmentioned procurement snafus were made by the JSC, but nothing was committed to paper when the she was informed that the JSC would require her to relinquish her duties while it investigated the allegations against her.

She has not covered herself in glory, either. She declares her innocence; and when she appeared before a parliamentary committee, she named three members of the Commission as bearing an unwarranted animus against her. She accused one member of having had it out for her since the day she was appointed to her office; she accused another, a Judge to boot, of insisting on his people's "time to eat the fruits of uhuru;" she accused the third of having an interest in the Judiciary's procurement of a building to house the Court of Appeal in Mombasa, demanding that she abandon the process and allow him to provide said building. Of course, as has become a tradition in Kenya when these situations get out of hand, she did not produce evidence of any kind to support her allegations.

The flaw, such as it is, is that we are loathe to live by the rules we make because the rules we have made never seem to provide for the situations that we want to resolve. The forced leave forced on the Chief Registrar is ostensibly so that she cannot interfere in the investigations commissioned by the Commission. The JSC is surely right that Ms Shollei cannot hang around the office if the documents being sought by the investigators are in that office. She must withdraw so that the investigators, and her staff, are not compromised by her presence during the investigation. But the JSC is wrong to ignore rules that it has accepted in the process. The rules of the public service protect all public officers; they cannot be sent on forced leave without running afoul of the rules. And before they are sent on forced leave, they must be informed, in writing, of the rules that they have violated. Ms Shollei, to date, has not been informed of the grounds for her forced leave.

This is the same quagmire that Kenya finds itself, six months after the general election and three years after the promulgation of the Constitution. Raila Odinga and his ardent acolytes in CORD want the Constitution amended because, now, they find the provisions on the election of the President onerous. Governors and Senators want the Constitution amended because they now find that the devolution provisions are "weak." The National Assembly wants the Constitution amended because they now find that the Salaries and Remuneration Commission to be to hard-hearted when it comes to the question of their salaries and perquisites.

Three years ago, at the height of the referendum campaign, William Ruto and his fellow travellers in the Red team warned us that the Constitution was flawed and that the flaws should have been ironed out before Kenyans voted whether or not to ratify the Harmonised Draft. Raila Odinga and his Green warriors argued that the flaws could be ironed out after the referendum. This cavalier attitude to rule-making seems to have affected every piece of legislation enacted since August 2010. Regarding the forced removal of the Chief Registrar, the chickens have very definitely come home to roost.

Whether or not Ms Shollei survives this particular challenge, the damage to the reputation of the Chief Justice, the Judiciary and the Judicial Service Commission may be irreparable and may set back the cause of judicial reforms by many years. Even if Dr Willy Mutunga and his fellow Commissioners on the JSC disagreed with the provisions of the Judicial Service Act and the Regulations under it, they had an obligation to abide by them. It is not for the Commission to pick and choose when the rules will be applied and when they will not. If the Commission is to be seen as an honest institution, resolute in its observance and application of the rule of law, it must play by the rules without exception or misinterpretation. If Ms Shollei's dismissal makes it to the law courts, as seems likely, will the same institution that ignored the rules be able to honestly hear the case and rule in her favour if the facts support her claims?

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