Laban Walloga | Nation Chief Justice Evan Gicheru has called it quits.
By Paul Mwangi paulmwangi@muragemwangi.co.kePosted Saturday, February 26 2011 at 21:00
In Summary
- Whoever takes over Judiciary’s helm must appreciate the country is serious about reform; half-baked attempts at ridding the institution of bad apples just won’t cut it
The fate that has befallen Chief Justice Evan Gicheru shows how rapidly the country is changing and the dangers that will be faced by those who do not fully understand the new country that is rising from the ruins of the Moi regime.
From the time he was appointed Chief Justice on February 21, 2003, Justice Gicheru was swimming against the tide of public expectations and he failed to address the issues that the public viewed as the most critical to judicial reform.
I once summarised his tenure as follows: “Never has so much been expected by so many from one person and he delivered so little.”
No institution in Kenya has come under such public pressure for reform as the Judiciary. And this has not been because it was the most rotten.
Monitoring indices like those released annually by Transparency International show that there are other institutions that perform more dismally in the eyes of the public that the Judiciary.
The Transparency International Kenya Bribery Index released in 2004 showed in 2003, when Mr Gicheru was appointed Chief Justice, Kenyans placed the Judiciary at number 12 in the list of the most corrupt institutions in Kenya with a ranking of 24.0. The Kenya Police was ranked first with an index of 57.3.
Yet, the attention the Judiciary has received in respect of demands for reform is much more than the one placed on the police.
Is elitist
Possibly it is because the Judiciary as an institution is elitist and does not engage in the politics necessary to defend its position. Whenever the police are accused of an illegality, the police spokesperson is on television defending the force and promising action to ensure the conduct complained of will not be repeated.
It is of course always repeated but these public relations initiatives give the public hope that the institution is addressing their concerns.
The Judiciary cannot engage the public in such scrutiny of its work. The Chief Justice cannot come on television to defend a decision reached by one of the judges that offends public sentiments.
This would hurt the Judiciary more as it would expose itself and its judges to demands that could make public sentiment rather than legal justice the determinant of judicial decisions.
This does not mean however that public confidence in the Judiciary should not be cultivated. The public must believe that even the decisions that outrage it have been arrived at honestly and that the appellate system in the judicial process will cure the injustice.
This is the confidence that Justice Gicheru failed to cultivate.
By contrast, Police Commissioner Ali was appointed to head what was in 2003 perceived as the most corrupt institution. When he left in 2009, it was still perceived by the public as the most corrupt, but the police did not receive the kind of attention the Judiciary did in the constitutional review process, which culminated in the provision that the Chief Justice must leave within 6 months of the promulgation of the new Constitution.
I think the public lost hope in the ability of Justice Gicheru to address what they saw as the critical issues facing the Judiciary. The radical surgery at the Judiciary was never followed up by any meaningful effort to keep judicial officers in check. Instead, Justice Gicheru came out as protecting his fellow judges from the complaints made by the Law Society of Kenya.
Never petitioned
In his nine years at the head of the Judiciary, he never petitioned the President to investigate a single judge. His way of dealing with errant judges was to transfer them from one station to the other.
While infrastructure was desperately needed and Justice Gicheru will be remembered as second to none in its development, the competence and integrity of judicial officers remained the central concern and he failed miserably in addressing this.
Nothing has changed in the expectations of the public and the next Chief Justice will find himself or herself in an even worse position than Justice Gicheru.
There won’t be any allowance of time. The public and the stakeholders in the legal sector are frustrated by the futile past efforts to reform the Judiciary and will cut the next CJ little slack on this issue.
Unlike Justice Gicheru, the next chief will have to contend with an independent Judicial Service Commission that will continuously twist his or her hand and try to make their will prevail. But when things go wrong, it will be the CJ taking the flak.
With the vetting of judges and magistrates about to start, the next CJ will be viewed as having taken over a clean and competent judiciary. Even if the vetting does not succeed in dealing with the competence and integrity issues at the institution, the new chief will have to take the blame for the future conduct of any surviving errant officers.
The next chief must ensure the Judicial Service Commission puts in place an accessible and effective complaints mechanism that will catch up with errant officers who survive the vetting and also prevent the new ones from going rogue. They must never forget what the public regards as its main concerns over the Judiciary, even if they think these views are exaggerated.
One thing the new CJ can count on which Justice Gicheru never enjoyed is broad public support as a result of the recruitment process that has been agreed on. The new chief will, therefore, enjoy a reputation for independence and competence which only he or she can destroy.
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