I agree with Chief Justice Evan Gicheru’s critics who say he is not a radical reformer. Indeed, when he was appointed in 2003, I wrote an opinion piece on him to say he had no fire in his stomach to enable him to shake up the Judiciary in a substantial reform drive. I also agree with them when they accuse him of being stubborn, though their actual word is “arrogant”.

Mr. Justice Gicheru has in his judicial career developed a stubborn streak, with a taint of intellectual arrogance, on matters he feels strongly about. This stubbornness has not endeared him to many people who have dealt with him, particularly because his affable manner disarms many and leads them to believe that he is malleable.

But there is credit that they unfairly deny him – he is honest and significantly independent. By denying this, they, by default – for some design accuse him of being the stumbling block in judicial reforms. If we look back at the history of the Judiciary – and I have done so ad written a book on it we will appreciate how virtue of honesty in a CJ can affect judicial integrity. The Kenyan Judiciary has a history of CJs who implemented policies that gravely compromised the individual’s rights.

Justice Cecil Miller

Of note is Mr. Justice Cecil Miller who, in 1988, declared the Bill of Rights under the Constitution unenforceable because he had yet to formulate the rules of practice and procedure for constitutional application.

There was also his interference in Mr. Stephen Mbaraka Karanja’s case, in which he took over a matter being handled by a fellow judge, Mr. Justice Schofield and reversed a ruling the judge had made ordering the police to produce Mr. Karanja’s body. Mr. Justice Miller was accused by the legal fraternity of acting as a civil servant.

Then there was Mr. Justice Alan Hancox who openly campaigned for the government and urged lawyers to be loyal to the president. He is remembered for maintaining Judge Norbury Dugdale, a government sympathiser, as the permanent duty judge, and for maintaining another government agent, Chief Magistrate Mango, to oversee all sedition trials in which suspects were brought to court after 5pm. Mr Justice Hancox was referred to by the legal fraternity as “Njonjo’s boy” for his subservience to the AG.

The less said about Mr. Justice Zachaues Chesoni the better.

Mr. Justice Gicheru has definitely not done as much as some of us more passionate reformists may have wanted, but in all honesty, he has not doe anything that would justify Prime Minister Raila Odinga’s condemnation of the entire institution as being fraught with “rot and incompetence”. If anything, we look at out history, no CJ has ever performed to a level near what Mr. Justice Gicheru has doe, all his mistakes notwithstanding.

For the country to appreciate why the CJ is being asked to quit, his critics need to clearly state the case against him that makes a constitutional justification.

Section 62 of the Constitution states that a judge can be removed from office only for inability to perform the functions of his office, whether arising from physical or mental infirmity or from any other cause, or for misbehaviour.

The public needs to be told of the specific charges which can be construed under the under the Constitution as misbehaviour to justify his firing. Otherwise, the calls for his sacking are no more than the usual political jostling and posturing.

Mr. Justice Gicheru’s Judiciary has been the most independent of the Executive in the country’s history. In fact, the independence of the current Judiciary is almost hostile, and many Cabinet ministers are unhappy with its attitude towards both the Executive and the Legislature.

The PM’s words shed a new light on this matter. He insists that the Judiciary is “organically” part of the government. I don’t think that would be necessary if the Judiciary was operating at the Executive’s whims, as it used to I the past.

Clearly, Mr. Odinga wishes to control the Judiciary, but the latter is rejecting the overtures. If you add to this equation the CJ’s stubborn streak, you get the kind of passion witnessed in this debate.

But, despite his relatively good performance, Mr. Justice Gicheru has a case to answer to the public on two accounts.

The first is the method of appointing judges is still as it was in the past. Though there is no law that requires a consultative or confirmation process, the CJ has continued to allow the same patronising process.

Public interest

As a result, some appointments have been made that may not serve the public interest and would have been avoided had proper consultation been done.  One such case was hinted to by Ms. Martha Karua before she resigned. Grapevine has it that a judge was appointed while other was a pending fraud case against him or her.

The second is over supervising and upholding judicial ethics. The CJ has since the Ringera purge neither put I place a proper complaint mechanism against judges nor found any liable for investigations for ethical misconduct. Those of us who practice law in the courts have witnessed or heard of cases that call for action. If the Law Society of Kenya was drafting a petition based on specific cases along the above two questions, many more people would support Mr. Justice Gicheru’s investigation.

The problem is that very few of the accusers want to come up with specific cases on which to place their complaints. Today, as in the past, few lawyers wish to stand up to be counted by making specific charges against judges. It is not surprising that, although all these accusations are being levelled against Mr. Justice Gicheru, no one has come up with a case against any of the other 60 or so judges.

Drastic action

Yet the LSK is calling for the drastic action of firing all the judges without any accusations being made against each and every one of them. This would be grave interference with the Judiciary’s independence. If the LSK were acting on the genuine concern of the state of the Judiciary, I would expect that, together with a petition against Mr. Justice Gicheru. They would also level charges against members of the Judiciary who have failed the integrity or competence test. The fact that they are not doing so casts doubt on the real purpose of their onslaught on the CJ.

Thus, I find the PM’s attack on the Judiciary contradicting. On the one hand, Mr. Odinga has defended the government’s corruption record, saying that the current level pales before the past. But when it comes to the Judiciary, he says it is full of “rot”. And he does not explain why he has reached this conclusion.

It is also bewildering why, all government officers and constitutional office holders who have made up a case to be fired, it is only the CJ who is at the top of the debate as the prime candidate for dismissal. Can it be honestly said that Mr. Justice Gicheru has made up the best case of a public servant who must be immediately dismissed?

Neither the critics at the LSK nor Ms. Karua or the PM are being honest about their attacks on Mr. Justice Gicheru. There is much more they could do to reform the Judiciary than getting to the point of seeking his sacking.