Kenyan Judiciary in the Dock

Kenyan Judiciary in the Dock By Odhiambo T Oketch

The Judiciary has made it easy for people who litter Nairobi to go scot free

The recent ruling by Judge Joseph Nyamu of the Court of Appeal, Judge Mathew Anyara Emukule and Judge Roselyne Wendoh both of the High Court on the illegality of the Kadhi’s Courts has nailed the Kenyan Judiciary on the cross. Its timing was definitely wrong and it has brought to the fore the need for a total overhaul of the Judiciary.
Kenyans have yearned for justice for a long time. And a walk down the corridors of Justice is laden with cases of delayed Justice, compromised Justice, corrupted Justice, sold Justice and lack of Justice. Litigants are left wondering which law the Judges normally apply to the myriad of cases that are often filed.
If you will all remember, when we voted in the last General Elections in December 2007, the Chief Justice himself was at hand to swear President Mwai Kibaki at dusk, against all known swearing provisions. One is supposed to be sworn to office between 8.00am and 6.00pm, but here was the Chief Justice himself swearing in one at almost 7.00pm. Again, the speed with which they all assembled for the swearing ceremony was suspect.
The elections results had just been announced at around 6.30pm and 5 minutes down the line, all and sundry had assembled at State House to witness Mwai Kibaki being sworn in as our President. That was suspect and it was presided by none other than the Chief Justice- the head of the Judiciary in Kenya; an arm of Government that is supposed to be independent.
Then, because of the fraud presided over by the Chief Justice, the person who supposedly won that election, the current Prime Minister the Right Hon Raila Odinga, refused to go to court to seek remedy. Many urged him to go to court to challenge the election of Mwai Kibaki as President, but he refused, basically on the grounds of compromised Judiciary.
That was one of the cases where the Judiciary, despite the claim of independence, was being used to settle political scores, and Kenyans took note.
Now as we are gearing up to vote in a landslide Referendum to usher in a new constitutional order, Judge Nyamu has come down to the High Court to help scuttle the process. It comes at a time when many Kenyans firmly believe that the Judiciary needs to be rid of people like the Chief Justice Evan Gicheru, Judge Nyamu, Judge Wendow, Judge Emukule and many more who do not deserve the honour of being called Judges. These are people who have never believed in the rule of law.
They believe in fixing cases to suit ulterior motives. How can the Chief Justice preside over a swearing ceremony at dusk? How can the Chief Justice be invited in advance to State House even before the results of an election are announced to prepare to swear in one who is losing in that election and he accepts?
Kenyans chose to forgive, forget and move on despite the contradictory role of the Chief Justice himself. But as we are gearing to firm Kenya on the right path, the Judiciary is back again with more spanners to the works! This we cannot forgive, forget and move on with.
We must fix this thing now once and for all.
You all remember when Kenyans voted in December 2002 for Mwai Kibaki to become our President. We were all united in one thing; giving Kenya a new beginning. We were even touted as the most optimistic people in the world then. Then President Kibaki killed our hopes and dreams.
He chose to play safe and soon, he had made friendship with the corruption cartels that have ruined Kenya. Instead of tackling the corruption cartels, he chose to weed up the Judiciary of Judges who could stop in their ways as they planned more mischief against Kenyans. They set up Justice Aaron Ringera to go after Judges who could stand on their way.
The result was the so called Radical Surgery in the Judiciary that was neither radical nor a surgery. Out went Chief Justice Bernard Chunga and in came Justice Evan Gicheru. Out went many more Judges and Magistrates on trumped up charges of corruption and in came Judges and Magistrates who could massage corruption.
Soon Anglo Leasing was planned and executed as the Judiciary watched. Soon Grand Regency Hotel was sold as the Judiciary watched. Soon our maize was sold from the national reserves as the Judiciary watched. Soon our oil was siphoned out as the Judiciary watched. We have lost vast acreage of land as the Judiciary watches. Then, the last nail on the coffin of the Judiciary from Judges Nyamu, Wendoh and Emukule themselves.
If I have to quote Azdak in the Caucasian Chalk Circle, he says that Justice when pronounced must be pronounced with absolute gravity. It must not be delayed. It must not have feelings. It must be fair and just. But in the case of Justice in Kenya, it has been the reverse. Justice is sold to the highest bidder. The more corrupt you are the more likely you will win all your cases.
And that is the sad reality that many litigants face in the Judiciary in Kenya. Justice has never been about the rights of the people; it has been about the rights of the Executives and the corrupt. Justice has never been given in time in Kenya, unless you are the mighty and the corrupt. The poor will be taken round and round and ultimately they wear out.
It is like the Judiciary in Kenya has been designed to fight the poor and deny them Justice.
As we all marshal Kenyans to vote for the Proposed Constitution, Judiciary must be put in the hands of the many able lawyers who will listen to litigants and give them hope. There MUST be a radical surgery in the Judiciary that will truly be radical and be a surgery that will remove the Gicherus, the Nyamus, the Wendohs and the Emukules of the current Judiciary.
The Judiciary must be made to be truly independent and they must bring relief to the poor, succor to the oppressed and Justice to all.