Friday, August 23, 2013

Judiciary biggest loser in Shollei circus

Chief Registrar Gladys Shollei addresses the Press outside the Supreme Court after she was sent on leave on August 19, 2013. In the Shollei situation, the political leadership has not only wedged into the issue but has also dignified its involvement through the formality of a parliamentary committee. Photo/FILE

Chief Registrar Gladys Shollei addresses the Press outside the Supreme Court after she was sent on leave on August 19, 2013. In the Shollei situation, the political leadership has not only wedged into the issue but has also dignified its involvement through the formality of a parliamentary committee. Photo/FILE  NATION MEDIA GROUP

By George Kegoro
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What began as an internal disciplinary hearing against the Judiciary’s Chief Registrar, Mrs Gladys Shollei, has transformed into an all-engulfing dispute involving all the branches of the government. If not handled carefully, the Judiciary will be the biggest loser.

Already, Mrs Shollei has obtained court orders preventing her employer, the Judicial Service Commission (JSC), from going on with the investigations that it had started against her until her suit is heard.

This means that without resolving the issues that had led to the original problem, it is back to work for her and the JSC.

The episode began when media reports indicated that a meeting of the JSC in Mombasa had resolved to take disciplinary action against Mrs Shollei over matters that have not been clarified, and that this decision was going to be endorsed a during a further JSC meeting in Nairobi at the beginning of the week.

Mrs Shollei was not at the meeting that made the first decision against her, as she was reportedly out of the country. Neither was Chief Justice Willy Mutunga.

At the Nairobi meeting, positions within the JSC had shifted, so that some of its members who had supported her suspension in Mombasa now changed their minds, leading to a split decision to suspend Mrs Shollei from office for two weeks to pave the way for investigations against her. This was met with disapproval from some politicians who termed it a witch-hunt.

Secretary to the Cabinet Francis Kimemia criticised the JSC for suspending Mrs Shollei, saying civil servants should not be hounded out of office in the manner it was done for Mrs Shollei. Mrs Shollei responded by addressing the media to express her dismay at the decision of the JSC terming it “unfortunate, irregular, unprocedural and irresponsible.”

As it had promised to do, the Legal Affairs Committee of the National Assembly summoned Mrs Shollei and the JSC for a hearing . Mrs Shollei used this platform to re-emphasise her innocence and to explain that she considered three members of the commission, lawyer Ahmednasir Abdulahi, Justice Mohammed Warsame and Chief Magistrate Emily Ominde, with whom she said she did not get along well, to be responsible for her tribulations.

Before the High Court put an end to this matter, it remained unclear if the JSC would appear before the parliamentary committee. The Judiciary has been here before, when it had to deal with the problems created by the encounter between former Deputy Chief Justice Nancy Baraza and a security guard, Ms Rebecca Kerubo.

At the time Chief Justice Mutunga acted correctly at every turn, leading the JSC in arriving at difficult decisions without exhibiting internal differences.

This time, however, the JSC has publicly shown divisions in its ranks and allowed the outside world to wedge into what should have been its internal affairs.

Just like they have done in the Shollei case, politicians had also made claims that Ms Baraza was the subject of a witch-hunt. At that time, however, they had found nowhere to lodge as the JSC maintained a united front.

In the Shollei situation, the political leadership has not only wedged into the issue but has also dignified its involvement through the formality of a parliamentary committee.

Several observations are necessary at this point. First, the JSC has the power, and right, to exercise disciplinary control over Mrs Shollei as its employee and, ultimately, nobody can stand in the way of that. This is a right that the JSC must jealously guard.

However, the JSC has a duty to be fair to Mrs Shollei, and to everybody else, while exerting this power. The manner in which the JSC set about this process, reportedly isolating Mrs Shollei from a process that clearly touched on her rights, has exposed the commission to accusations of bad faith, irrespective of the merits of any complaints there might exist against her.

Not surprisingly, Mrs Shollei’s grievances against the JSC are constructed entirely on claims of procedural unfairness.

While the fact that at the subsequent meeting on Monday involved Mrs Shollei and may have gone towards addressing the original lapses, the JSC as the pinnacle of judicial power has an especially heavy burden to demonstrate the kind of fairness that judiciaries require of others.

Second, whether or not the JSC’s methods were affected by procedural slippages, it is in the public interest, and also in the interests of Mrs Shollei herself, that the truth about the allegations that have been made against her be established.

If she is innocent, as she has asserted, she will be vindicated and she will get back her dignity. Third, Parliament or any of its committees has no business in this matter. The Judiciary is an independent organ of the State and does not answer to Parliament in the manner proposed by the Legal Affairs Committee.

Further, the seriousness of the parliamentary process has to be questionable because what started as a knee-jerk declaration that Mrs Shollei was innocent was then turned into a committee hearing to hear all the sides.

The difficulties of proceeding in this manner were not overcome merely because this process was now labelled a committee hearing.

The last thing to be said on the parliamentary process is this: even if the Legal Affairs Committee had jurisdiction over this matter, which it does not, such jurisdiction is not due until the JSC process has concluded. What has unfolded before Parliament, therefore, is an exercise in meddling dressed up as committee work.

Fourth, Mr Kimemia’s remarks, in a matter that was not his business, indicate that the political establishment is keenly interested in the outcome. Mr Kimemia must be aware that this month alone, a number heads of State corporations have been removed from office in the manner that he said should not happen to Mrs Shollei. On those other occasions, he chose not to speak out.

Mr Kimemia’s remarks, together with the eager approach by the legislators, have removed the Shollei issue from the pale of an employer-employee dispute and turned it into a political contest over who has the right to control the Judiciary. This is a fight that was presumed settled after the long struggle that culminated in the new Constitution.

It should not have come to this, as it almost certainly now means that Mrs Shollei’s personal interests will be subordinated to this bigger contest.

If those who have so enthusiastically come to her defence thought they were helping Mrs Shollei, they have achieved the opposite effect. There is now a distinct “right-versus-might” ring to this contest, to which her personal issues will be secondary.

Through this contest, Mrs Shollei has been presented as the face of the establishment in the Judiciary. As a result, she has been left with the burden of having to demonstrate that any absolution she might receive from the accusation she faces is not the result of the pressure from people in high places.

On its part, the protection of its tuff, originally not on the cards, has become as important an issue for the JSC as was the issue of resolving the complaint against Mrs Shollei, with the risk that achieving both might be in conflict.

Finally, the manner in which Mrs Shollei has chosen to defend herself deserves a comment. Mrs Shollei started with a public repudiation of the suspension and followed this up with accusations of her own against individual JSC members.

There will be questions about her judgment in publicly attacking the decision of the JSC even if she disagreed with it, in starting her own fight with JSC members and in uncritically going along with the politicisation of the matter into the Legislature.

These actions just make it more difficult for normal relations in the Judiciary to resume if she is absolved.

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