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Sunday, July 3, 2011

Challenges facing image of the new Judiciary

Chief Justice, Dr Willy Mutunga
Chief Justice, Dr Willy Mutunga
By Challenges facing image of the new Judiciary
Posted  Saturday, July 2 2011 at 21:09

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The challenges the Judiciary will have to deal with in the coming days are exemplified by the proceedings in two recent cases that the High Court has dealt with.
The first was the decision by Justice Daniel Musinga on May 20 that led to the 11th-hour stoppage of the Kamukunji by-election.
The case had been filed by Paul Waweru Mwangi who had unsuccessfully tried to lodge his nomination as a candidate for the seat through the National Vision Party.
The Interim Independent Electoral Commission (IIEC) had rejected his nomination on the grounds that he was not a bona fide member of the party in question.
The judge, however, ruled that failure by the returning officer to give written reasons for rejecting the nomination represented the kind of opacity that the new Constitution abhors and stopped the elections from going on.
The second case is one filed by a group of youth who stopped the Kenya National Youth Congress countrywide elections that had been underway.
They filed a case seeking to stop the elections on the grounds that the registration of youths to participate in the elections disenfranchised them and that inadequate time had been provided for the registration of those who wished to take part in the elections.
Justice Jean Gacheche, who heard the case, issued interim orders stopping the elections midway and ordered a full hearing before her to determine the merits of the complaint. Last week, the case came up before her for the full hearing but could not proceed.
The parties took a date in October, the earliest available, when the full hearing will begin. In the meantime, the judge extended her orders stopping the elections until the hearing of the case.
Through court action, a national programme for youth elections has now been stopped indefinitely.
It is this state of affairs that incensed a group of opposing youths who, in frustration at the delays in holding the elections, forced their way into the courthouse, demanding to be addressed by the Chief Justice.
While their demand to meet with the Chief Justice did not materialise, they were addressed by the principal judge, Justice Mbogholi Msagha, who promised a way would be found to alleviate the delay the case was experiencing.
Several lessons
Several lessons can be drawn from these two cases.
Firstly, the courts have changed. Previously, a group of rowdy youths violently breaking into the courts would certainly have been repulsed with equal or larger amounts of force and would surely not have drawn the immediate and open response of a judge.
The new Judiciary is sending the message that strong tactics, even against unreasonable litigants, will only be used as a last resort.
Secondly, Chief Justice Willy Mutunga enjoys high levels of public confidence and is almost regarded in messianic terms by a section of the public.
This is probably what led the youth to break in to see the Chief Justice, believing they could get immediate resolution of their problem.
However, Dr Mutunga will need, early on in his tenure, to manage the huge public expectations his appointment has attracted.
In his position as Chief Justice, Dr Mutunga will only sit on the Supreme Court.
Because each judge enjoys autonomy in the handling of individual cases before him, no other judge, not even the Chief Justice, can dictate or suggest what decision may be made in relation to that case.
Any views that Dr Mutunga may have on a case will only be expressed if the case comes before him on appeal. And since he does not sit alone, those views would have to contend with the views of other judges of the Supreme Court on the same matter.
The value that Justice Mutunga brings will not be in individual cases but in the power of overall leadership which, he would hope, will make the Judiciary adopt a particular way of discharging its responsibilities.
Blown away restrictions
Thirdly, the new Constitution has blown away restrictions to legal address, making access to the courts far easier than it was before.
While the strictures under the previous dispensation acted as a natural sieve, deterring frivolous litigation, the only mechanism left for preventing abusive use of the courts is the judge assigned to hear the case.
To implement the provisions of the new Constitution, a balance will need to be struck between the need to give all deserving persons their day in court and keeping out vexatious litigation. Frivolous litigation wastes public time and adds to the case backlogs the Judiciary is already facing.
In the Kamukunji case, Justice Musinga made a decision that raises significant difficulties because he disregarded important public interest concerns.
His decision was made on a Friday and had the effect of stopping elections scheduled for the following Monday.
The constitutional rights of Mr Mwangi would need to have been balanced with the objective needs of the people of Kamukunji to be represented in Parliament, the rights of other candidates in the same elections and the need to preserve the exchequer, which had already incurred expenses in making preparations up to that point.

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