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Judiciary expects big changes

Friday December 31 2010

File | NATION Long serving Attorney General Amos Wako (left) and Chief Justice Evan Gicheru are set to make their departure

File | NATION Long serving Attorney General Amos Wako (left) and Chief Justice Evan Gicheru are set to make their departure  

By JACOB NG’ETICH [email protected]

The year 2011 will herald unprecedented changes in the Kenyan Judiciary, with the first big change being the departure of the Chief Justice and the long-serving Attorney-General.

According to the new Constitution, Chief Justice Evan Gicheru’s term comes to an end in February, paving the way for a new CJ to be appointed using a new criteria for the first time in Kenya’s history.

Mr Justice Gicheru will have served as Chief Justice for exactly eight years, having been appointed on February 21, 2003. He joined the bench as a judge of the High Court in 1982.

According to Ms Njoki Ndung’u, a former Committee of Experts member, whereas the Constitution gives a maximum of one year for the attorney-general to also vacate office, it would be good for him leave office at the same time as the Chief Justice to pave the way for a proper revamping of the Judiciary.

“It is important that the entire judicial system is overhauled, and not piecemeal. The Chief Justice and Attorney-General should leave office at the same time so as to allow a smooth revamping of the system,” said the former nominated MP.

The new Constitution says a new attorney-general will take office in August this year, ending the two-decade career of Mr Amos Wako.


The chairman of the Constitution Implementation Oversight committee, Mr Abdikadir Mohamed, agrees on the need for a new AG and attorney-general to be appointed at the same time.

Mr Mohamed said both the AG and CJ would be sitting in the Judicial Service Commission and it was important for the two to be new and prepared for the reforms in the judicial system.

“The AG will also be very instrumental in the formulation of Bills for the implementation of the Constitution and it is only good that we have a fresh face and a reformer for the task ahead,” he said.

In the expected changes, Parliament will form a tribunal to vet judges and magistrates within the year.

“Due to a lot of issues Parliament has been pursuing, they have delayed in coming up with the tribunal to vet the judges and magistrates and ensure that we have a competent and clean judicial system” said Ms Ndung’u.

The efforts to completely overhaul the Judiciary will lead to a new court system, which will for the first time include the Supreme Court.

The  Supreme Court, which shall serve for the first time in the Kenyan history, will consist of the Chief Justice, who shall be the president of the court, the Deputy Chief Justice, who shall deputise for the Chief Justice; and shall be the vice-president of the court; and five other judges.

The court will have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.

It will also have appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed.

The former chairman of the Committee of Experts, Mr Nzamba Kitonga, said the court  would be there for Kenyans to thwart any recurrence of 2007-2008 election debacle because for once there would be a court to specifically hear election petition cases and to make a ruling within a set time span.

“The court will change Kenya forever, Kenyans now have a court to run to when they feel the presidential election results are not right,” said Mr Kitonga.

The court, he stated, would also offer any person who felt that he was not satisfied with a ruling of the Court of Appeal a place to appeal.

“If someone feels that his or her pleas have not been heard by the Court of Appeal, they can now move to the Supreme Court where their case will be heard with finality,” said the former COE chairman.

Away from the Judiciary, other changes will be on the Bill of Rights, where a new Kenya National Human Rights and Equality Commission will be legislated by Parliament to replace the Kenya National Human Rights Commission, which was last year dodged by controversy.

According to Mr Ababu Namwamba, the chairman of the Legal and Constitutional Affairs in Parliament, the commissioners on the new commission will not be replaced but will instead serve the remainder of their term.

“The commissioners will serve their full term, and the new ones will be appointed under the new law,” said Mr Namwamba.

Also within this year, Parliament will enact legislation on the new Independent Election and Boundaries Commission boss and its new commissioners to replace the current Interim Independent Electoral Commission.

Justice minister Mutula Kilonzo said the establishment of the IEBC should be done at the earliest opportunity so that electoral reforms were consolidated before the next general election.

“The government must educate the public about the new electoral system and the new permanent body on boundaries and elections that is supposed to be established,” said Mr Kilonzo.

However, commissioners of the new Ethics and Anti-Corruption Commission to be legislated will not have privileges like their counterparts in KNHR and IEBC, because they will have to be appointed afresh, according to Ms Ndung’u.

“Parliament could well decide to adopt the names of the current commissioners of the new Ethics and Anti corruption Commission, thereby saving them from losing their jobs by August when the new commission shall start operating,” she said.

Also expected in the year is the legislation on citizenship, specifying procedures by which a person may become a citizen, governing entry into and residence in Kenya and providing for the status of a permanent resident.