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Surprise Rulings Cast Doubt Over Kenyan Judiciary Nominations

  • Michael Onyiego

The future of Kenya’s Judiciary remains uncertain after surprise decisions from Kenya’s parliament and high court.

Tension has been building in Nairobi since Sunday, when the coalition government was thrown into another crisis over controversial nominations for Kenya’s Chief Justice and Attorney General. Appeals Court Judge Alnashir Vikram was nominated for Chief Justice while lawyer Githu Muigai was pegged as Kenya’s next Attorney General. Prime Minister Raila Odinga dismissed the appointments made by President Mwai Kibaki as illegal, arguing he was not consulted as required by Kenya’s constitution.

The row took another turn when Parliamentary Speaker Kenneth Marende announced he would issue an opinion on the matter after it was raised during Tuesday’s session of parliament.

Late Thursday, Marende capped off a near hour-long speech with a surprise decision to withhold his judgement. The speaker told lawmakers the matter was to be referred to two parliamentary committees for further assessment. A report is to be issued by the groups before February 10.

In issuing his decision, the speaker took center stage in the judicial battle, admonishing both camps for their failure to work together.

“It is nothing short of heartbreaking to the people of this country that this process, that should herald a new beginning and inspire new confidence and legitimacy in this crucial organ of state, should get off to such a rough start," said Merende.

The speaker reminded both President and Prime Minister of the importance of judicial reform. He also highlighted the 2007-2008 post-election violence, when a lack of faith in the judiciary turned an electoral dispute between Mr. Kibaki and Mr. Odinga into a countrywide ethnic war which left over 1,000 dead and 300,000 displaced.

The decision rendered by Marende failed to head-off the judicial crisis but in an unexpected twist of events, a nearly simultaneous ruling by Kenya’s High Court struck down Mr. Kibaki’s nominations as unconstitutional.

In a challenge brought mainly by women’s groups, Justice Daniel Musinga found the nominations had failed to meet the constitutional requirement of equal opportunity for women. The chairman of the Law Society of Kenya, Apollo Mboya, praised the ruling Friday.
“What it shows is that within our judicial system there are some good men and women who can uphold the rule of law and who are brave enough to remind the executive that the rule of law must be followed," said Mboya.

Mboya also praised Marende’s ruling, saying parliamentary investigations would allow officials to vet each candidate as required by law.

Reforms to the Kenyan Judiciary are seen as a key component of the country’s new constitution. Kenya’s courts are regarded as notoriously corrupt and inefficient. The courts carry a backlog of cases which some estimate to be in the hundreds of thousands.

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