President's move sounds a death knell for the Judiciary

The President’s move to form a tribunal to investigate six Judicial Service Commission members cannot have come at a worse time when there were all signs that the Judiciary was being arm-twisted by the National Assembly.

It is not possible to say that JSC is not the Judiciary when the management of the Judiciary is undertaken by JSC.

The President’s action was totally unexpected at a time when it was thought that he would take a middle ground and find a workable, peaceful solution to the stand-off between Parliament and the Judiciary.

By choosing to side with Parliament rather than arbitrate, he has left the Judiciary at a crossroads, and it remains a neglected, frightened arm of government.

The Deputy President’s initial statement that the government would seek a truce in the matter has been betrayed by his recent utterances to the contrary.

Not even the opposition Cord can pretend to be any better because its MPs in the Justice and Legal Affairs Committee were the most vocal in support of the action taken against the JSC.

True, the President may have been exercising his constitutional mandate by enforcing Parliament’s recommendation, but then there was already a court order blocking all that Parliament undertook. Did he also not have a constitutional obligation to obey the court order?

When the highest office in the land disregards a court order, what does it portend for constitutionalism and the rule of law?

Above all, the composition of the tribunal clearly brings out the political aspect in the matter to the extent that the outcome of its findings may well be predictable.

The truth of the matter is that a section of the government is bitter, and is out to avenge the sacking of Gladys Shollei in whatever way possible, even if it means crippling the Judiciary.

As expected, we will be in for very interesting times and the formation of the tribunal may have just opened a Pandora’s box, igniting the stand-off between the Executive and Parliament as against the JSC, and by extension, the Judiciary.

Lack of quorum

The new battle front is predictably going to be within the court corridors and the tribunal may have roadblocks placed in its way due to the prior court order.

In the meantime, operations of the Judiciary will slow down because the JSC will not be able to transact any business due to lack of quorum at a time when a set of about 40 judges was about to be recruited.

When it is said, therefore, that the President’s action will not interfere with the operations and independence of the Judiciary, then it can only be construed that those who say so are dishonest.

We have become a very ethnicised, partisan society in which it is almost predictable to get to know, beforehand, the views to be expressed by even very respectable professionals on trivial issues depending on the region one comes from.

There seems to be contests all over, from media independence to the governance of NGOs, and now to the very sensitive arm of government which should be the last port of call for redress.

The government needs to seriously carry out an audit of itself to reflect whether, as a country, we are drifting backwards in terms of gains that were already made in institutional reforms during Kibaki’s government.

We are in for a big constitutional crisis never seen before, and the Executive arm of government rather than forestalling it, has chosen to fuel the fire on the pretext of exercising its constitutional mandate.

With the media fraternity, the civil society and the Judiciary already in the spotlight, the clamour for reforms may just start anew since the Constitution seem to have been desecrated unapologetically.

Mr Sumba is an advocate of the High Court of Kenya. He also holds a diploma in journalism ([email protected]).