Of the three arms of government, the one that has received the most attention regarding the imperative of reform has been the Judiciary. Since the clamour for a new Constitution began, the Judiciary has been at the centre of the attention of reform advocates, with judicial reform almost becoming synonymous with constitutional reform.
Indeed, when the new Constitution was unveiled, the Judiciary had suffered the most drastic reform proposals that included the automatic firing of the Chief Justice in six months and the possibility of firing all the judicial officers. The new Constitution was essentially a vote-of-no confidence in the Judiciary.
One year later, we are still far from where we should be. The delays in implementation have slowed down the pace of judicial reform to the extent that the only evident achievement today is the recruitment of a Chief Justice and his Deputy.
There are many reasons why these delays have occurred, and those responsible will say either that they were unavoidable or someone else is to blame. And that may be so. I just find it surprising that people who sacrificed so much for these reforms are not working 25 hours a day to implement them.
There is particular disquiet with the pace of work of the new Chief Justice. After many years of criticising the Judiciary and helping Kenyans craft and legislate the necessary changes, the new Chief Justice seems to have run out of either fuel or hydraulic pressure.
Two months since he was sworn in, the Chief Justice has made no fundamental administrative changes in the institution, leaving many wondering whether, in the first place, he ever believed that there were urgent problems to be addressed at the institution. All of a sudden, judicial reform is no longer urgent and it now appears that we have a lot of time to get things right.
While there are some who unreasonably expected him to walk into the Judiciary with a scimitar, we all did not expect him to go and sit at his chambers and seem to lose his sense of outrage at the state of the institution. The only thing that came close to outraging him, and on which he acted peremptorily, is the dress code.
I am finding this situation very disturbing. The new Chief Justice has barely five years in his tenure, of which he has already lost two months, with little indication of any improvement in his pace. What is beginning to appear as a cavalier attitude on his part towards the urgency of reform in the Judiciary is being taken by reform advocates as an insulting belittlement of the passions, energies and sacrifices of the many who fought to see him where he is today.
Nevertheless, the Judiciary still stands a head above other institutions in implementing the required changes. It is likely that in another six months, the Judiciary will have fully implemented the basic changes required to, hopefully, see it to a full recovery.
By February next year, all empty slots of judicial offices from the Supreme Court to the High Court should have been filled up. In fact, next month, it is expected that the new High Court judges will be gazetted and sworn into office. Interviews of the empty slots at the Court of Appeal are expected immediately thereafter. And in another month or so, the decision on the Supreme Court appointments will be delivered by the constitutional court.
By the end of this month, it is expected that the vetting boards to review the suitability of sitting judicial officers will be fully constituted and the actual vetting process could be under way by end of September. This is possibly the most important endeavour in the judicial reform process as it is hoped it will address all historical mistakes of appointment, discipline and integrity.
If the vetting is thorough and well done, we should all be looking forward to having one of the world’s cleanest judiciaries, as no other country, to my knowledge, has ever employed such stringent measures of vetting and recruitment as the Constitution of Kenya has done.
Whether we will retain it as a clean judiciary will depend a lot on the leadership of the institution, to wit, the Judicial Service Commission. It is from them that Kenyans expect strict supervision of judicial officers and leadership in integrity and transparency at the institution.
So long as the Commission commits itself to the principles we want to see observed by judges, and strictly enforces compliance with these principles, we shall never again go back to the abyss from which we have climbed out.
Paul Mwangi is an advocate of the High Court