Crisis in Judiciary as Karua hits out at CJ

Relations between the Judiciary and its parent ministry sunk to an all-time low after Ms Martha Karua on Monday said that most judges got their jobs due to “favouritism, cronyism and incompetence”.

In a blunt press statement, the Justice and Constitutional Affairs Minister accused Chief Justice Evan Gicheru of dishonesty and standing in the way of reforms to introduce transparency and merit in judicial appointments.

A few good judges who have landed the jobs did so “incidentally rather than systematically,” Ms Karua said as she responded to the Chief Justice who last week accused her of interfering with the Judiciary.

Crucial reforms

Ms Karua’s pointed criticism is yet another blow to the Judiciary, weighed down by complaints over delay of cases.

Although she fell short of calling for the CJ’s removal, Ms Karua told him to stop hiding behind the independence of the Judiciary to shield himself from criticism and block crucial reforms.

“The rule of law is in jeopardy and the Government and the people of Kenya will not continue to stand and watch as things run as usual... the Judiciary must get down to work and make changes now. If it does not the people shall,” Ms Karua said.

The minister did not state how such changes would be effected. Judges can only be removed on grounds of incompetence or corruption, but only if found guilty by a tribunal appointed by the President.

The Law Society of Kenya has already petitioned President Kibaki to form a tribunal to investigate Mr Justice Gicheru and pave the way for his removal from office.

The lawyers accuse the CJ of incompetence and stalling the judicial reforms.

There has been no word whether State House will accede to the request.

Ms Karua’s intervention, however, dramatically ups the ante in what has hitherto been a campaign against the Chief Justice driven by the LSK and other legal advocacy groups.

Competitive process

Calling for a transparent and competitive process of picking judges, Ms Karua claimed that a Cabinet colleague has for the last one week been “working for a person from his village to be appointed judge.”

As minister for Justice, National Cohesion and Constitutional Affairs, Ms Karua occupies a powerful seat in the entire system of the administration of justice. Even though it enjoys operational independence, the Judiciary falls under her docket, and she has become increasingly critical of its performance.

Last week, LSK and three other law organisations accused the Judicial Service Commission of planning to recruit more judges irregularly and vowed to lead street protests to block the move.

The commission chaired by the Chief Justice nominates persons for formal appointment as judges by the President.

LSK now wants to be involved in the process, which currently involves the AG, two members from the Public Service Commission and two other judges.

Cartels involved

One needs to have been an advocate for at least seven years and be of high integrity to be appointed judge.

The LSK, however, says most judges were appointed on political grounds as it accused the CJ of “playing along” with the cartels involved in appointment of judges.

AG Amos Wako, the CJ and Ms Karua have recently exchanged words over the rot in the legal system, delay of court cases and failure to prosecute top personalities involved in graft, among other things.

On Friday, the CJ accused the Executive through Ms Karua of seeking to influence, control and interfere with the Judiciary.

He accused her of sabotaging the swearing-in of new judges in December 2006 and for failing to push through the Judicial Service Bill.

But on Monday, Ms Karua said she plays no role in judges’ hiring and that the cancellation of the swearing in had nothing to do “with whether I was consulted or not.”

Saying the CJ’s statement lacked in candour, Ms Karua said the ceremony was put off because the integrity and competence of some of the nominees was questioned and that the President “is not a rubber stamp in the process.”

“The cancellation of the swearing in ceremony attests to the fact the JSC has failed the people by refusing to put in place mechanisms to ensure that persons nominated for appointment as judges meet the basic criteria of competence and integrity,” she said.

Among those who had been appointed and were headed to State House for swearing-in until the ceremony was abruptly cancelled were chief magistrates Aggrey Muchelule and Florence Muchemi and Ms Abida Aroni Ali, a former Constitutional of Kenya Review chair. Another lawyer, Ms Nancy Oginde, declined her appointment.

Ms Karua accused the CJ and JSC of ignoring a proposal developed after consultation with the LSK on how judges should be hired. As a result, she said: “A glance at appointments in the Judiciary reveals favouritism, cronyism and incompetence.”

Ms Karua said the “radical surgery” in Judiciary over which Mr Justice Gicheru presided in 2003 failed as it was not accompanied by concrete and systematic reforms.

The clean-up process of that year in which nearly half the judges and magistrates were sent home was presided over by Ms Karua’s predecessor, Mr Kiraitu Murungi, now minister for Energy.

She said it was of no use suspending judges over claims of irregularities and employing others in a non-transparent manner.

The country has a shortage of 26 judges in the High Court and five in the Court of Appeal. The Constitution sets the number of judges at 70 but even with a backlog of cases, little has been achieved in filling the vacant posts.

Ms Karua said it was within her mandate as minister for Justice, National Cohesion and Constitutional Affairs to question the efficacy of the Judiciary in administration of justice and to advocate for policy changes.

She said the Judicial Service Bill was unconstitutional as it sought to make changes to processes that are provided for in the current Constitution through an Act of Parliament.