Another reason Kilonzo Jnr makes the case for a tribunal, is the doubt that has not only been cast on the Judiciary’s moral authority, but on that of the judicial police, the JSC, as well.
While he doesn’t dispute that the recommendation for the formation of a tribunal in the Tunoi matter would of necessity come from the JSC, he argues that it would itself be on trial given Justice Tunoi’s defence is that Kiplagat’s accusations are the product of a retirement dispute between himself and the JSC and two, because a former member of the JSC, Ahmednasir Abdullahi, who deemed Tunoi suitable to sit on the Supreme Court bench, now alleges that the judge received Sh100 million more than the reported Sh200 million.
“Let him tell us how he knows that.”
Not forgetting that Chief Justice Mutunga, who chairs the JSC, has himself called into question the integrity of its membership.
“The JSC itself is accused. To absolve itself, they should put themselves in a position where they should also be questioned. So what would be the best method for Kenya? It’s not for the JSC to sit in a closed room and come up with a finding,” Kilonzo Jnr holds.
He’s however exempted from blame the Judges and Magistrates Vetting Board which found those serving on the bench suitable to hold office. “They cannot guard against future bad behaviour. That is why continuous vetting is necessary.”
The JMVB whose term expires at the end of March, concurs. Chairman Sharad Rao says the weakness of the vetting process is that only judges and magistrates who were in office prior to the promulgation of the Constitution, were put through it.
He argues that it’s therefore imperative that an, “independent,” commission, different from the JSC, is formed and charged with the task of handling public complaints made against the Judiciary. “Because the JSC is composed of lawyers and judges who are hearing complaints against one of their own colleagues.”
Bobby Mkangi, who was on the constitutional Committee of Experts, however believes the problem lies not with the system but society itself. “The Judiciary is one of the most reformed institutions on paper. The people of Kenya through the Constitution were really earmarking a brand new institution. Perhaps what we should ask ourselves is why, irrespective of all these safeguards, all our institutions seem to get this cancer of corruption?”
He is however optimistic that all hope is not lost and believes gains have been made toward the ideal Kenyans had in mind when they voted through the Constitution.”Within five years you don’t expect to really have cleared out all the elements in an institution or in a country.”
“Definitely,” he acknowledges, “it happening in the Judiciary is more serious. It’s the port of call whenever everything goes wrong.”