The Kenyan Judiciary: in pursuit of an acquittal of blemish

July 25, 2008 12:00 am

, NAIROBI, July 25 – World over, the Judiciary as an institution has been relied upon as the apposite arbiter of conflicts within a country’s borders.

It is almost obvious that there lacks, other than the judiciary, an independent institution that can arbitrate issues without fear or favour.

In Kenya, this is seemingly the case. However, as an institution, the Judiciary in Kenya has been a faithful client of protracted criticism. It has often been a subject of ridicule by politicians, who have looked at it as a ‘means‘ by those in power to achieve ‘favourable ends’.

The feeling remains despite the radical surgery initiated by Justice Evan Gicheru where a number of judges from both the High Court and the Court of Appeal were hounded out of office.

Critics have argued that the Judiciary is to blame for the violence in the post December 2007 Kenya, basically for failing to arbitrate, by not winning confidence from both political antagonists.

On the other hand, it has been argued that the Judiciary should not be blamed for anything since it remains free of interference.

Probably, it is for this reason that the Judiciary has been seen employing all means possible to ‘reclaim is image’.

In this discourse, we attempt to closely follow latest attempts to reclaim its perpetually dwindling repute.

This year, for the first time in history, Chief Justice (CJ) Evan Gicheru took a bold step and appointed twelve particular Judges to hear and determine election petitions. 

There are 38 such cases filed in the High Court this year, close to ten of which have already been concluded.

Gicheru says the move is aimed at expediting election petitions, which have hitherto been dragging in the courts.
A case in point is a petition filed by George Nyanja, who was a parliamentary candidate for Limuru in the 2002 General Election. He lost the seat to Simon Kuria Kanyingi.

In late January 2003, Nyanja filed a petition alleging a multiplicity of irregularities and offences against Kanyingi, a returning officer and the Electoral Commission of Kenya (ECK).He therefore wanted the courts to nullify the elections.

Less than a month before the dissolution of the ninth Parliament in December 2007, the Court of Appeal allowed an interlocutory appeal filed by Kanyingi. He had appealed against a High Court decision which allowed Nyanja to withdraw particulars to his pleadings earlier requested.

Before delving into the facts of the case, the court stated that the decision it was about to deliver, would not at all dispose of the election petition, whose hearing and determination was still pending in the High Court, five years on. The case was subsequently overtaken by events.

Political crisis

At the onset of the debate on how to solve the political crisis in Kenya, Orange Democratic Movement (ODM) leader, Raila Odinga (now Prime Minister) publicly declared that he had no confidence in the Judiciary.
He claimed the Judiciary was not credible enough to handle election matters as, according to him, had been previously evidenced.

It took the intervention of the African Union (AU) through its then chairman, Ghanaian President John Kufuor and the Kofi Annan-led mediation efforts were initiated.

The Chief Justice was not amused with remarks made in public, aggrieved as he would rightly be; he equally lashed out at them.

He made a statement terming the utterances by politicians as ‘not only stressing and unfortunate, but also irresponsible, hypocritical and subversive’.

“Such careless utterances erode the respectability of an institution Kenyans rely on for resolution of disputes in their lives,” said Justice Gicheru.

He strongly defended the integrity of the Judiciary, saying it is an independent institution that is not affected by frequent political elections.

Call to observe law

The CJ repeatedly called on Kenyans to order their lives in accordance with the law adding that only the Judiciary was constitutionally mandated to solve disagreements among the public and between the very public and the state.

He announced plans to establish a communications department within the Judiciary, in a bid to foster easy litigation and communication between the courts and the public (increase public involvement in the judicial process).

He said the process was already underway and had begun with open days where members of the public would be encouraged to interact with Judiciary staff.

Justice Gicheru added that the Court would also conduct outreach visits to educate the public on the judicial process.

“This initiative will give members of the public an opportunity to understand and utilise the judicial process well,” Justice Gicheru said.

The appointment of the election petitions’ bench was followed by the launch of the Election Petition Digest, a book aimed at aiding judges in determining such cases.

The book is a compilation of easy-read jurisprudence literature aimed at guiding legal practitioners in handling election disputes.

At the guidebook’s launch, Attorney General (AG) Amos Wako concurred that it was a bold step in restoring public confidence in the judiciary.

Wako challenged the practitioners to brace for a hard task that looms in Kenya’s political history due to the pending constitutional reforms.

On the other hand, a section of legal practitioners recommended the setting up of an Election Petition Division and an Electoral Tribunal to help expedite poll disputes in court.

They were led by Kenyan Section of International Commission of Jurists (ICJ) Chairman Wilfred Nderitu, who said such a move would ensure restoration of public confidence in the judiciary.

“The judges charged with the responsibility of hearing regular cases are the same judges hearing the petition cases,” Nderitu lamented.

Early May, the National Council on Law Reporting (NCLR) launched yet another book that is aimed at helping judges in arbitrating matters.

Dubbed the Grey Book, it is a law reference for judges, magistrates and other legal practitioners aimed at aiding in litigation.

It comprises selected Acts of Parliament governing the substance and procedure in respect of matters arising in daily criminal and civil litigation.

The council’s Chief Executive and Editor, Gladys Boss Shollei said the publication was aimed at providing current legal information to legal practitioners.

Call to uphold responsibility

Justice Gicheru has repeatedly called on legal practitioners to uphold the responsibility of timely providing pertinent information to all people.

“It is a fundamental principle of criminal law expressly provided for in the penal code, which imposes a duty on citizens to know the law and a corresponding duty of the State to provide current information on the law,” said Justice Gicheru.

Similarly, it was announced that legal practitioners would benefit from an expanded bandwidth with the advent of the fibre optic cable since there will be more online resources.

Court of Appeal Judge and Chairman of Judiciary Library Committee (JLC) Justice Samuel Bosire assured that his committee would ensure provision of relevant judicial material.

“The mission of the Judicial Library Committee is to organise, manage effective, relevant and professional libraries geared towards provision of an effective information service to judges, magistrates, advocates and other stakeholders to assist them in the task of administering justice,” Justice Bosire said.

He underscored the need for provision of reliable and adequate legal information to both judges and the public.

These developments have come against the backdrop of intensified calls and recommendations (from the National Dialogue and Reconciliation Team) for comprehensive reforms.

Judicial reforms are at the centre of the restructuring that experts say is necessary.


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