William Ruto has made every effort to politicize the criminal case against him. But it looks like all his efforts will miserably fail as that story is only accepted among his Kalenjin followers. He is therefore an extremely angry man. He suspects there is someone, probably Raila Odinga, who wants to do him in. The rivalry between the two has now turned into a bitter enmity with no-holds-barred tactics being used by both sides.
As the undisputed leader of the ODM, Raila would obviously like to show he has powers to discipline his ostensible number two man in the party. But rebellious Ruto is still out to prove that he can be an extremely damaging thorn in Raila’s skin, with powers not only to deny him the massive Kalenjin support, but also to completely destroy him from within his own party.
As the battle between the two becomes more public with each passing day, Ruto has been seriously wounded and is showing signs of running away. Though he assures his supporters to have the wherewithal to fight another day, he is at the moment the underdog with criminal charges of fraud over his head. He is accused of defrauding the Kenya Pipeline Company (KPC) of 96 million shillings by purporting to sell KPC land belonging to the Ministry of Environment and Natural Resources nine years ago.
When the crime was allegedly committed Ruto was a sacred cow. No law enforcing agent would have dared touch him with a barge pole. Doing so would not only have been politically incorrect; but would also have amounted to committing political suicide that could only lead to being shown the door. Ruto, and many like him, continued becoming mysteriously richer all the time as public land, including forests, were being openly grabbed and sold at exorbitant amounts to government institutions and companies like the KPC.
But as soon as Kibaki came into power things began to change. Ruto was first charged for the alleged offence in 2005. But the old Constitution was still in force. He therefore wasted no time in trying to use it to get the case swept under the carpet. He in fact almost succeeded because for such a long time the case was almost forgotten. The matter must have been revived by the new Constitution which made Martha Karua challenge the Prime Minister in Parliament to tell the country what William Ruto was doing in the Cabinet when there was a criminal case pending in court against him.
The Prime Minister had to pretend to defend Ruto when he said the Minister for Higher Education had challenged the criminal case in the high court. Until the ruling of the High Court which would determine whether or not Ruto had a case to answer, the Minister for Higher Education was sort of protected. It so happened that soon after the Prime Ministers’ statement the High Court made a ruling declaring that Ruto had a criminal case to answer. Weather the abruptly expeditious ruling of the High Court was caused by the Prime Minister’s intervention or the new Constitution is neither here nor there.
In 2005 when Ruto was first charged with the offence he claimed the charges against him violated his Constitutional rights. Paradoxically it is the new Constitution which is making him now face the music as it has come with very strict demands and requirements for people who want to be leaders of this country.
Rather than defend himself in the magistrate’s court where he was first charged, Ruto took the matter to the High Court, which he expected to stop the case for the flimsy reasons of fictitious violation of his “constitutional rights”. But sitting at the High Court this time were three Judges who are about to be vetted, as recommended by the new Constitution , on whether or not they have the ability to deliver justice in a jurisprudentially upright manner . The three judges – Jeanne Gacheche, Roselyn Wendoh and Leonard Njagi had no option but to strictly follow the law in throwing out Ruto’s request.
While doing so they clearly said: “There is no proof that the applicant’s rights have been violated or breached in any way. For that reason we are unable to grant any prayers sought and send back the case to the trial court for hearing and determination.” The claims made by Ruto that the case was politically motivated were also rejected by the High Court, though the suspended Minister came out of court singing the same song.
Soon after Ruto lost his plea to have the case thrown out of court there was a public outcry urging both the President and the Prime Minister to suspend the Minister for Higher education until his case was heard and he was proved not guilty. The loudest noise against Ruto came from Martha Karua and Mutula Kilonzo who are both very highly respected lawyers.
Whatever the case may be Ruto is for the time being an extremely powerful politician in Kenya. Not only is he controlling the five million plus Kalenjin votes, but he is also an important member of the KKK alliance which hopes to form the next Government of Kikuyus, Kalenjins and Kambas. For these two reasons alone Raila has every excuse to push Ruto over the cliff so as to pave his almost undisputed success in his expected 2012 race for the presidency.
Kibaki, on the other hand, may not care much about the KKK and its success after his administration. But what he cares most about is the success of the new Constitution which has very strict demands on both the rule of law and the fight against corruption. Kibaki would therefore not risk the possibility of weakening the importance of the new Constitution for the sake of pleasing Ruto, however powerful he may be among the Kalenjins. Besides that, Kibaki has no more political ambition and does not really care who takes over from him when he retires as the man who gave Kenya a new and most democratic Constitution. That reputation alone is bound to guarantee him perpetual respect long after he departs from both the political scene and indeed from this world.
So in obeying the Anti-Corruption and Economic Crimes Act which demands public officers who are charged with corruption or economic crime to be suspended at half pay, with effect from the date of the charge, Kibaki and Raila had no option but to suspend Ruto, albeit for completely different reasons. Because the law also says the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted, Ruto therefore still stands a chance of getting his job back in the Cabinet, but first he has the uphill task of fighting the criminal charges against him.
Unfortunately the line of defence he has taken of politicizing the entire case will only put him in more trouble because the three judges have already ruled on that matter. Indeed it will be extremely difficult for the accused politician to continue claiming that the entire case against him is political because under the new Constitution the independence of the Judiciary is very well defined and defended.
William Ruto is about to discover that the days when the Executive manipulated the Judiciary in order to win political favours and punish those opposed to the dictatorial regimes of the past are gone and gone forever. Today the courts are playing a completely different role as defined by Article 159(1) of the Constitution which clearly says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution.
It further says that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status. It says justice shall not be delayed though alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Since Ruto’s case is obviously criminal the last options are out of the question.
Today Ruto has appealed against the ruling of the three judges who see no merit for him to continue claiming his “constitutional rights” are being violated. The old style of using that argument as tactful procedural technicalities in order to defeat justice is taken care of very well by the new Constitution which clearly says in Article 159(2) (d) justice shall be administered without undue regard to procedural technicalities.
When Ruto continues to claim that his criminal case is a political one he is in fact challenging the independence of the Judiciary which is defended in the new Constitution’s Article 160(1) which says the Judiciary shall not be subject to the control or direction of any person or authority. When Ruto, however, says he has to carry his own cross he is absolutely right and he stands a very good chance of bouncing back into political popularity outside his own Kalenjin chiefdom when he legally succeeds in defending himself against all the criminal charges against him. After all the new Constitution also defends his right to a fair trial.
Friday, October 22, 2010
Saturday, October 9, 2010
Constitution: Judicial Service Bill meticulous
Just as the MP for Kamukunji, Simon Mbugua, moves to Court to try and stop Parliament from passing the Bill on vetting judges, Mutula Kilonzo has published yet another Bill to establish the Judicial Service Commission (JSC) which will hire, fire and discipline judges as well establish the National Council of the Administration of Justice. The latest legislation is the Judicial Service Bill, 2010. Despite all the noise that is being made to stop the process of implementation of the new Constitution without first creating the CIC, Mutula seems to be moving with the speed of lightening to change the Judiciary according to the new Constitution.
There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.
Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.
According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.
The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.
The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.
On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.
It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.
The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.
It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.
The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.
According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.
If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.
According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.
One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.
The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.
In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.
There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.
Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.
According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.
The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.
The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.
On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.
It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.
The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.
It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.
The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.
According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.
If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.
According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.
One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.
The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.
In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.
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