Judiciary: ODM and PNU differ on way forward

by Martin Mutua

ODM and PNU turf wars have resurfaced, this time so forceful and vicious they are threatening to derail judicial reforms.

Consequently, a taskforce that was to submit its report on judicial reforms to the Cabinet Thursday morning has been deferred, The Standard has established.

This was preceded by a stormy five-hour Cabinet committee meeting chaired by Prime Minister Raila Odinga at his Treasury Building office on Tuesday. At the meeting ODM-allied ministers rejected the recently released report by the taskforce on judicial reforms that had made far-reaching proposals.

The most contentious is ODM’s dismal role in the constitution of the taskforce headed by Justice William Ouko.

Sources at the meeting said Justice and Constitutional Affairs Minister Mutula Kilonzo presented the report to the sub-committee. Justice Ouko was also present.

Others who attended the meeting included Deputy Prime Minister Musalia Mudavadi, other ODM allied Cabinet ministers Dalmas Otieno, Jeffa Kingi, Mohammed Elmi and James Orengo.

PNU allied ministers at the meeting were Moses Wetang’ula and Robinson Githae. Also in attendance was Attorney General Amos Wako.

The fate of the report remains unclear as US Ambassador Michael Ranneberger accused a clique of politicians around President Kibaki and Prime Minister Raila Odinga of undermining the reform agenda.

But Mr Ranneberger also commended some MPs for showing commitment and taking a lead in pushing for speedy reforms of the police, Judiciary and constitutional review.

"I am encouraged by the way parliamentarians are taking part in fighting corruption and impunity. I want to appeal to Kenyans to agitate for a speedy process if they want change," he said in Sotik, this week.

However, the taskforce had drawn up a timetable for implementation of its recommendations that would have taken three months, starting last month and ending on November 30, for the first phase.

The final phase of reforms would have ended on February 28, 2011.

Also trashed by the Cabinet sub-committee are Judicial Service Commission regulations on the qualifications and procedures for the appointments of judges, as well as discipline and removal of judges, which do not require Cabinet or parliamentary approval, but the approval of the Chief Justice.

Amendment to law

Also contained in the report are proposals for the Judicial Service Commission to investigate complaints against judicial officers and staff.

Among the reforms that had been proposed by the Ouko-led taskforce were constitutional amendments to include the manner the Chief Justice, Court of Appeal and High Court judges are appointed.

Other proposals included an amendment to the law to have judges who are incompetent removed from the Bench, a provision that does not exist.

The taskforce report also recommended that the Judicial Service Commission be expanded to include two lawyers, one of either gender who has practiced for least 15 years or nominated by the Law Society of Kenya.

The reforms had also recommended proposals in the terms and condition of appointment of Commissioners of Assize by the President. The Head of State, however, does not require the approval of Parliament or Cabinet to make the appointments.

The report was supposed to have been presented to the Cabinet Thursday morning under the chairmanship of President Kibaki for adoption and implementation, but with the rejection by the sub-committee the move has now stalled.

Sources who attended the meeting told The Standard that ODM allied ministers were opposed to the report as Chief Justice Evan Gicheru was being retained as the Chair of the Judicial Service Commission, which is supposed to oversee the implementation of the reforms.

Hailed report

"They were also opposed to the report because the process of selecting the task force members was not done in consultation with the Prime Minister and ODM," added another source.

ODM allied ministers are further said to have opposed the report because it had not addressed transition as contained in the Bomas Draft.

But another source said the PM hailed the report as "good but that it did not go far enough".

The sources said ODM allied ministers demanded that reforms in the Judiciary should be consistent with recommendations of the Bomas Draft Constitution.

"ODM allied ministers were categorical that the reforms in the Judiciary should be a cut and paste of the Bomas Draft or else the country waits for comprehensive constitutional review," added the sources.

The sources said Wako, who was a member of the task force, said the country should await comprehensive constitution review.

Shoot it down

Sources further said Mr Orengo and Mr Otieno were categorical that the report must be reviewed.

"The two were breathing fire, demanding the removal of Chief Justice Gicheru, saying judicial reforms could not be talked about when the CJ was still at the helm," added the sources.

It is reported that Ouko told the meeting that it was regrettable each time there are attempts to reform the Judiciary, the Executive has always come out to shoot it down.

The sources said Ouko, who seemed to have been taken aback by the turn of events, told the meeting removal of the CJ was not part of their terms of reference and neither did he have any role in the membership of the task force.