Justice and politics are inseparable in Kenya!
The Supreme Court in Kenya was established by the new constitution of 2010. After a very short time of existence the main court in the land faced a defining moment in its short history. It is not the first time Kenya has had the Supreme Court. It was there in the first constitution then later scrapped by the government through some dubious political speculations. The top court then became the Court of Appeal followed by the High Court. The Executive had powers to appoint the Chief Justice and other Judges assigning them to both Courts. Such appointments and promotions were politically perpetrated. The Judiciary was at the mercy of the President who had the power to appoint and remove a judge.
Since the Executive had to deal with issues of justice there was the Ministry for Justice and Constitutional Affairs. The Minister was in-charge with the political aspect of justice system. Matters concerned with the constitution and justice would be handled also at the Cabinet level. The Parliament also has a committee concerned with constitution and justice in the Republic of Kenya.
In separation of powers, the Judiciary, the Executive and the Legislature are distinct with powers separated. This reflects the democracy and constitutionalism. The President no longer commands the Judiciary nor the Legislature and he is not a member of Parliament nor the head of any political party.
The Judiciary now is haunted by new reality. Integrity issues are at the top. Politics seems to be interfering with the judiciary. On 16th of June 2016 the current Chief Justice is expected to quit the office on early retirement. Parliament had passed amendment Bill on the Judicature Act giving more powers to the President to appoint the CJ as opposed to the constitution. This law has since been quashed by the High Court and is no longer in operation. But the interference from politics is still strong.
Justice Tunoi and Rawal are supposed to retire according to the constitution. A Supreme Court judge must retire at 70 years. Both have moved to Court to extend their time on the bench. Lawyers are at it again. Which is which?
Justice Tunoi is faced with allegation of taking bribe from the Governor of Nairobi that has made him be suspended and subjected to a Tribunal. As this is still on The Supreme Court is in turmoil in almost a year to the next General Elections. If Chief Justice Mutunga retires, the Bench will have five judges left. Justice Njoki Ndung’u had scheduled the hearing of the appeal on the Court of Appeal ruling on Justice Rawal and Tunoi on 24th of June, a decision that has since been reversed by the CJ who argues that the hearing must be done on 12th of June, that is before he retires on 16th. Time is running out while the stalemate is high.
The Chief Justice is also the President and the Chair of the Judicial Service Commission…a constitutional organ that has made decision that Justice Rawal and Tunoi must retire according to the constitution.
The CJ is under siege while the stalemate in the highest court in the land is getting only worse.
Legal experts are already reading mischief in whatever is taking place. The Supreme Court is faced with many legal confusions that may reduce the confidence in the court. It shows wrangle for power… who should take over from the CJ? Is there an invisible hand in all this? Is the court turning political other than impartial? Are the judges compromised by political big wigs? Is money exchanging hands in the house of justice? Are these the judges Kenyans expected to have. Leaders owe us more answers than questions. Something is not alright with the house of justice.
Chief Justice David Maraga was quoted saying that the elections of 8/8/2017 must go on despite the already filed dispute from the opposition.
NASA alliance took the IEBC to Court complaining of malpractices in securing the printing of the ballot paper. In what is alleged to be lack of transparency, credibility, and accountability, the IEBC issued tender to a Dubai based company through single sourcing that involves the incumbent, the president and his family members in the deal. If found true and convincing, then the forth coming general elections will not meet the requirement of fair, free and credible elections ever. Again, the position the judiciary might take shall define the rule of law, constitutionalism and political rights in Kenya.