All judges must be shown the door for a new dawn

The greatest national security threat facing Kenya today is not posed by the outlawed Mungiki sect or other organised criminals. Neither is it is from al-Shabaab of Somalia.

It is not even the cheap politics of ethnicity practised as an article of faith by our politicians. None of our neighbouring countries pose an immediate military threat to our nationhood. The greatest, most serious and imminent threat to our national security and very existence is posed by the Judiciary. Is this alarming? May be to ordinary Kenyans. Is it factual? Spot on!

Few Kenyans have probably reflected on the best kept secret in the country that the biggest single actor in the post-election violence of last year was the Judiciary. When the aggrieved parties could not find a decent judge to arbitrate their complaints, they resorted to pre-law remedies of butchering one another.

A judiciary that arbitrates only in disputes over money, to determine who amongst the three parties to the dispute (note that the judge is a party) gets what portion leads a country to ruinous destinations. This is where the Kenyan Judiciary has delivered the country. This is a country without a functional Judiciary. This is a country where law and order and the rule of law are almost non-existent.

As we debate the draft constitution, it is important to highlight that its prescription for the Judiciary falls short of the need to make a clean break with the past. The Kenyan Judiciary right from the magistracy to the Court of Appeal is in a sorry state. It is an institution that is so rotten, that its stench has assumed a sense of normalcy.

It is an institution in which auctioning the rights of the poor, weak and the unprivileged in society has become a ritual practice. Magistrates and judges act with such breath-taking impunity and total disregard for the law that it is surprising why it is taking Kenyans this long to storm this Bastille.

The draft constitution states that all judges serving in the Judiciary will be vetted by an interim Judicial Service Commission. The commission will, for instance, consider mundane issues like whether a given judge is suitable for reappointment or is competent and diligent.

And who will appoint the interim Judicial Service Commission? The president and the prime minister! Aren’t these two clueless individuals who merely represent two powerful opposing ethnic blocs and with no idea what judicial reforms entail? The draft constitution is setting up Kenyans for a monumental whitewash of the Judiciary.

The draft seems to be inaugurating a cleansing ceremony for a most corrupt and irredeemable institution. The draft constitution, like the famous radical surgery, is premised on the fallacy that the Kenyan Judiciary can be recast.

Both are based on an apologist theory that by sacrificing some judges, the rest will repent and reform. First, the biggest problem facing the Judiciary is corruption. The Judiciary sells justice using litigants’ balance sheets as the scale.

It is an institution where magistrates and judges take judicial notice that in present-day Kenya money is mightier than the law. Second, there are too many former magistrates in the High Court and the Court of Appeal.

Kenya is probably the only country in the world where a former district magistrate can, through patronage, rise to the highest court in the land! What law can an ex-magistrate develop? Can such a magistrate be conscience of his historic duty to check executive powers or guide jealously the pre-eminence of the court?

Ask any lawyer, law student or a law professor of a single profound judgment that shaped the course of Kenya’s destiny written by current members of the Judiciary, and the answer is none! The Kenyan Judiciary is historically being entrapped in earthly personal pursuit.

One gets bewildered when members of the Judiciary and their apologists mumble about some alleged rights to employment they have. The claim that as judges they have security of tenure and that they should not be victimised in the draft constitution is an absolute legal fallacy.

They make the senseless assertion that the sovereign will of the citizenry doesn’t extend to abolishment or termination of their privileged positions. How arrogant have these justices become? Don’t they know that we the people are at liberty to establish a new order without them in the new constitution?