When the Rt Hon Prime Minister Raila Odinga felt that his presidential win in the 2007 General Elections in Kenya was going up in smoke, he refused to seek redress from the Judiciary in Kenya. Why did he seek the opinion and support of the public courts rather than the Judiciary? What did he know that many of us do not know? To get to the bottom of this, we need to take a walk down memory lane and see where the rain started beating our bench.

Dr PLO Lumumba (Director, Kenya Anti- Corruption Commission) speaking to Judges in a forum in Mombasa said that one can survive a botched Executive and Legislature, but not a botched Judiciary. Responding to this, Justice Riaga Omolo advised PLO that to win cases, he has to bring water-tight cases.

Have cases have been lost in our courts because they are not water tight? My foot! Aren’t they lost because the Judges and Magistrates do not want to uphold the rule of law? They dwell on technicalities that are meant to defeat the dispensation of justice to litigants.

That Kenya has survived a botched and lethargic Judiciary needs no gainsaying. Our Judiciary has watered and nurtured the seeds and fruits of corruption. We have had several scandals of immense financial proportions in Kenya: KenRen; Goldenberg; Anglo Leasing; Grand Regency; The Kenya Pipeline; Tritton Oil; Maize; Ferry purchase- and so on  but no person has been nailed. In all these scandals, the only people who have seen and felt nothing as Kenya looses in are the men and women in our Judiciary.

Many gallant sons of Kenya died in politically instigated circumstances. We lost Pio Gama Pinto immediately after Independence. Then followed Tom Joseph Mboya,  Argwings Kodhek, Ngala Mwendwa, Ronald Ngala, JM Kariuki, Robert John Ouko, Odhiambo Mbai and a host of others. In all these deaths, the only people who sat pretty and continued with their normal lives were our men and women in robs at the Judiciary. No one has been nailed for the deaths.

Many compatriots were arrested and taken to court at times when the courts were not supposed to sit. We all know of the Mwakenya Trials during the reign of former President Daniel Arap Moi. This did not start with Moi; he simply followed the footsteps of our founding Father Mzee Jomo Kenyatta. We all remember that Jaramogi Oginga Odinga, Masinde Muliro, Joseph Martin Shikuku, Titus Adungosi, Kenneth Matiba, Jean Seroney, George Anyona, and a host of others were arraigned in courts on tramped up charges and sentenced to jail. The Judiciary never swore fidelity to law, but to the appointing authority.

The worst case scenario is when the current Chief Justice attempted to create a gatekeeper for the Executive in the Judiciary by directing that all constitutional matters be heard only in Nairobi and only by Justice Joseph Nyamu. This was a clear affront to the constitutional rights of Kenyans being tramped over by none other than the Chief Justice himself. Kenyans called his bluff and our gallant lawyers refused to kowtow to him and his un-judicial edict.

Setting criminals free on technicalities as opposed to merit has frustrated police effort and led to rampant crime in Kenya. Public service vehicles across Kenya are operating above Traffic laws simply because they rent the Judges. Landlords are impounding tenants’ properties as drug barons have a field day because our Judiciary is compromised. The Judiciary has been used as an appendage of the Executive and the criminals to subjugate Kenyans as the political class rip the economy and run rough shod on those who stand in their way.

We need men and women who will have strict fidelity to the rule of law. We need a person in the mould of Hon Kenneth Marende who upon being elected the speaker at the National Assembly, instituted changes that are truly radical. He has made the Legislature a true second Arm of Government, independent and strong.

As we usher in the Ratified Constitution, the new constitutional dispensation will call for a few recommendations to be made at the Judiciary:

First, a young person of unparalleled fidelity to the rule of law MUST be appointed to the office of the Chief Justice. Second, all Judges and Magistrates must be vetted to determine their suitability to serve. Third, there must be a clear structure for complaints against the Judiciary. The current chain is self defeating. It is like reporting police abuse to the police. Fourth, Judges and Magistrates must be put on Performance Contracts where all of them will be tasked with a given number of cases per day. This should give a time limit on how long a case should take from the time it is filed in court. Lastly, cases must be heard on merit, not technicalities. It is a known fact that Judges and Magistrates use technicalities to defeat the cause of Justice in Kenya.

A rotten Judiciary will not serve the interests of Kenyans in the new constitutional dispensation. If we do not start by fixing the Judiciary and expunging it of rent seekers, we will be engaging in a zero sum game. We shall have gone round in full circle. Judicial reforms must be the cornerstone upon which a new Kenya will be built.

By Odhiambo T Oketch
CEO, KCDN Nairobi. He is also the Chairman to the City Council of Nairobi Stakeholders Evaluation Team.