By George Biruri.
The Judiciary in Kenya has, in most cases, danced to the tune of the Executive. Those who make popular independent decisions, not in favor of the system, are frustrated or removed, and those that take over, immediately change and pander to the whims of the Executive. They rarely defend the people’s interests, and when they do, they get an immense bashing from the Executive and its sycophants.
The anti people streak of our Judiciary may have been passed on from its colonial foundation. The Africans had their community’s way of hearing cases and determining them.
The first court was established by the Imperial British East Africa in 1890, with A.C W as it’s judge. Then, later after, the country became the East Africa Protectorate, the colonial government enacted the East Africa Order in Council (1890) and the Crown regulations. They imposed a segregated dual system of Judiciary. They established one for the Europeans and the Native courts (1907) for Africans! Our courts’ oppressive origin and DNA can be seen from the fact that the officials within the Administration (headmen, chiefs, DOs, D.C.s and P.C.s) were made part of the Judiciary! I remember being told of story how ignorant Africans were given letters tightly stuck on a stick split at the top and told to walk long distances to deliver to the D.O. The D.O. would read the sentence in the letter and immediately throw the surprised Africans to jail!
Ngugi wa Thiongo in his prison memoirs -Detained- has listed a few instances of the injustice committed by the colonial Judiciary. Colonel Grogan and four of his associates flogged three rickshaw boys outside the current Supreme Court building for alarming the white ladies on the rickshaw by raising the rickshaw shaft an inch too high! There is also another case in 1918, where two British peers flogged a Kenyan to death and later burnt his body , because they “suspected him of having intention to steal!” Most of the British colonial offenders were not charged. Those who were charged were if found guilty- given extremely lenient sentences.
These colonial courts are the ones that meted injustice in the MAU MAU and other leaders.
The segregated system of Administration of Justice was abolished in 1962 when the African Courts were transferred from the Provincial Administration to the Judiciary. The independence constitution had established a Supreme Court, but when Kenya became a republic, it was renamed the High Court.
In 1967, parliament enacted the Judicature Act, the Magistrates Court Act and rhr Kadhi Courts Act.
However, the Judiciary continued to be dominated by the British judges and a few Africans who by their act had a colonial type of mentality. These are the judges who delivered rulings such as the one of an American Sailor Frank Joseph Sundstrom who had admitted to killing a Kenyan Monicah Njeri in her Mombasa flat, after an evening of sex, and who was discharged by the Court on the condition that he sign a bond of 500 shillings and be of good behavior for the next two years!
The same Judges at the bidding of the state used to hold night sessions and deny all Patriots presented before them on state trumped-up charges bail, send them to remand for long periods, and subsequently jailed them for long terms!
Some Patriotic Lawyers complained about the domination of the Judiciary by Europeans. The bench was later Kenyanised. That did not change the miscarriage of Justice.
Many Kenyans were happy when Dr. Willy Mutunga took the helm of the Judiciary. A few activists were appointed to the Judiciary. However, they became a disappointment. Willy Mutunga showed his dalliance with the Executive when in the Presidential Election Petition 2013, he blocked the admission of evidence by the Coalition for Reforms and Democracy (CORD). That act dented his patriotic credentials. He has not recovered since.
When David Maraga took over, many people thought that given his long service in the Judiciary and his conservative religious views, he would be more prone to Executive manipulation. He courageously stood his ground even after vicious attacks by Uhuru and Ruto. He is up to date, the best C.J. we have ever had! He surprised us when he delivered the ruling in the Presidential petition in 2017 and nullified the Presidential elections.
Now, we have Martha Koome. As a young lawyer, she joined the Patriots in the trenches. She even represented some of them in Courts. Today’s Martha Koome is a pale shadow of the one of 90’s. She is more pro-establishment than Mutunga. Ahmed Abdullahi , a well known sycophant of Ruto, surprised us when he protested because the CJ Martha Koome had just like the Speaker and the M.P.s had lined up outside Parliament to receive
President Ruto. That was the best symbol indicating that the Ruto regime has captured the Judiciary! The level of trust on the Judiciary has plummeted since she was picked as C.J. She is the worst of all the C.J.s we have got since the promulgation of Constitution, 2010.
If the Judiciary is the arena where our constitutional rights are trampled, where are we supposed to turn to?