It is easy to praise the dead in Africa; anyone attempting to speak ill of the dead will be burnt in effigy or worse, simply burnt. In his Closing Statement in the January edition of the Nairobi Law Monthly (Let's emulate Mandela), the Chief Justice is effusive with his praise for the departed Nelson Mandela of South Africa. In his service as President of South Africa, the Chief Justice draws lessons which he exhorts us to be illuminated with in "our constitutional moment as we struggle to stabilise our politics, law and institutions." The Chief Justice accuses us of being "incapable of stitching together our ethnic diversity, bow to the demands of the law, dream big, expand our vision, respect our constitution and professions." And he is right.
Kenyans have had countless opportunities to be better; better at politics, better at governance, and better as people. Many of these opportunities have been squandered. Even those, such as the Chief Justice, who have the intellectual courage to speak truth to power have squandered opportunities to be better. Because he is the Chief Justice of Kenya, and the head of the Judiciary, let us examine the place the Chief Justice finds himself in light of his effusive praise for the South African icon.
We shall take only two examples of his role as Chairperson of the Judicial Service Commission. The first is the removal of the erstwhile Deputy Chief justice, Nancy Barasa. When, on New Year's Eve 2012, the Deputy Chief Justice was accused of assault, the Judicial Service Commission under the leadership of the Chief Justice applied its mind to what the law demanded. It investigated the allegations against Ms Barasa. It concluded that she had indeed acted in a manner that warranted dismissal and recommended the appointment of a tribunal to investigate her conduct. The process was not seen to its conclusion as Ms Barasa chose to resign her position. As the saga unfolded, there wasn't a Kenyan alive who did not believe that the Chief Justice, and the Judicial Service Commission, acted other than professionally.
How much difference a year makes. In August 2013, the Chief Justice, and the Judicial Service Commission, had the opportunity to act with the same degree of professionalism that they demonstrated during the Nancy Barasa saga. The disinformation and misinformation surrounding the dismissal of the erstwhile Chief Registrar of the Judiciary, Gladys Boss Shollei, have painted the Chief Justice and the Judicial Service Commission in the worst possible light. It is yet to be proven but the public spectacle of the removal of the Chief Registrar pointed to a vindictive disregard of the law and level of vendetta against her that belied the professional integrity of the members of the Judicial Service Commission.
Perhaps the Chief Justice cannot see it and it will take the people to show him the truth. In Kenya, while our ethnic diversity continues to be the subject of much punditry and commentary, and corruption continues to animate all pro-reform voices-in-the-dessert, it is the colonial-era legacy of the public service that must be reformed, and this is reflected starkly in the Judicial Service Commission more than anywhere else. The puffed self-importance of the Commissioners has done more damage to the institution than all the corrupt acts of the Judges and magistrates of Kenya for the past fifty years. The arrogance of the Judicial Service Commission about its power and place in the administration of justice has become the albatross that will eventually damn the Judiciary.
It is not just the removal of the Chief Registrar speaks volumes. It is also the avarice displayed by all serving public officers on the Commission. When Maina Kiai points out that there is no logical reason why the Chief Justice, the Attorney-General, the representatives of the Supreme Court, the Court of Appeal, the High Court and magistrates, and the representative of the Public Service Commission should be paid eighty thousand shillings as sitting allowances when they meet as a Commission, he is accused of ill will. All these civil servants earn millions every year in remuneration and other allowances. When asked, they claim that their service on the Commission is for the public good. Their avarice does not resonate with their stated good intentions. But what is surprising is that the Chief Justice has done little of note to reverse the trend of senior civil servants lining their pockets while "serving the people."
This nation continues to suffer its leaders, whether they are politicians, civil servants or judges. A nation that finds it impossible to pay teachers, doctors, nurses or policemen finds newer and better reasons to line the pockets of public servants who do not need that extra eighty thousand at all. In light of their zealous fidelity to the provisions of the Official Secrets Act, they will continue to speak loftily of the dream that is Kenya and their speeches will continue to fall on deaf ears, just as seed sown on rocky ground will not grow.
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