Kenya Elections: Failure of the justice system

By Odhiambo T. Oketch

In the wake of the palace coup by the Honorable MP for Othaya, the Hon Raila Odinga has been called upon time and again by the Party of National Unity (PNU) apologists to seek redress in the courts of Law. The often sighted example has been the case of Al Gore (former vice president) and George Bush (current president) in the US. That Al Gore chose to go to court to seek for Justice, has been the pet example by PNU apologists as someone who believed in the rule of Law. Raila has thus also been called upon to do the same if he so believes in the Rule of Law.

But we have glaring examples of inconsistencies in this. First, in the case of Al Gore, George Bush did not rush to swear himself as the US President even before Al Gore could go to court.

Second, The Head of the Supreme Court could not preside over the swearing in of George Bush, as our Chief Justice Evans Gicheru did. It is important to note that Raila is being encouraged to seek Justice from the person who presided over an illegality.

Third, the Kenyan Judiciary is incurably incompetent, trivialized and tribalised, that it cannot effectively be objective.

As we seek a solution to the current impasse, it is important to look at the immediate causes of the obtaining situation, the underlying causes and then look at the remedy.

Most Kenyans are being so objective. But PNU apologists are hell bent on treating and dealing with the repercussions and consequences of their rigging, rather than the root cause.

And to this extent, they are readily pointing for us the way to solve the problem, their problem, by telling us to go to court and seek for Justice. At this point it is important to observe that the Kenyan Judiciary is at a crossroads right now; do Litigants continue to have faith with a failed system, or do Litigants take the Law into their own hands and sort out their problems?

The underlying issue here has been, if the Chief Justice does not know the Law, who should?

We have cases that seem to fall flat in the face of the Constitution of Kenya. And in all these cases, the Chief Justice is ably absent to give direction. The same thing happens with the Chief Legal Advisor for the Government, the Attorney General (currently Amos Wako).

A case in point is the legal requirement in Section 5(3)a of our Constitution, that each party participating in a General Election must present a candidate for the office of the President. Nobody bothers with this, yet this is the Law.

Again, Section 33 explains the composition of the National Assembly, that it shall be composed of elected members elected in a general election, nominated members, and the ex officio members. Nobody bothers again; to an extent that part of the National Assembly sits to illegally elect the Speaker.

This flies in the face of the Law, because the Chief Justice, who is supposed to know the Law, maybe does not after all, know the Law.

The Speaker of the National Assembly ought to be elected by the National Assembly. And our Constitution is pretty clear in this, that the National Assembly consists of all those elected members, nominated members and the ex officio members.

That is the Law. And in Kenya, the Law must not be respected, and this is why we find the Chief Justice, the Attorney General, and the supposed President, all breaking the Law. If all these people do not know the Law, how do you expect to get Justice from a bunch that does not know the Law?

As we move forward, we must start by creating a Judiciary composed of men and women who know the Law, and who can uphold the dignity of the Rule of Law. We must create a new Judiciary that will swear allegiance to the Rule of Law; people who like the Supreme Court of the US, will make Kenyans proud of seeking Justice in our courts of Law.

We must create a new Kenya where if a litigant seeks Justice from our courts, the dispensation of Justice becomes fair and efficient. Not the kind of auction place we call courts.

I hence join in with in with all Kenyans who have lamented about the death of Justice in Kenya. Or did we suspend our Constitution at some point in time?