Site menu:

March 2019
S M T W T F S
« Nov    
 12
3456789
10111213141516
17181920212223
24252627282930
31  

Recent Posts

Recent Comments

Site search

Categories

Archive













Justice Ringera & KACC Appointments – The Real Issues

By Matunda Nyanchama

Toronto, Ontario

September 27, 2009

The real issues on Justice Aaron Ringera’s re-appointment (and that of two others) to lead KACC are (a) the powers of the Executive as laid down in existing law, (b) Judicial  independence, (c) Legislative independence, and (d) Constitutionalism. The matter, now in court, offers a chance for the Judiciary to redeem its eroded image.

——

A lot has happened since President Mwai Kibaki “re-appointed” Justice Aaron Ringera and two other directors to a second term at the helm of the Kenya Anti-Corruption Commission. The President’s act raised a hullabaloo in parliament, across the country and within the Kenyan Diaspora. Fifteen citizens (misnamed “activists by the Kenyan press) who include yours truly, went to court challenging the President’s right to make the appointment. Hon Khalwale also sued, although he has since withdrawn the matter. In that midst, Dr Smokin Wanjala, one of the reappointed directors, resigned saying that the debate had become diversionary even as the country faces more urgent issues.

Some people have blamed the passionate debate on the hefty salaries paid to KACC directors. Others have suggested it is an ethnic attack the president’s man. As now appears to be usual, it has become all politics! And we Kenyans love our politics! Don’t we?

Sure! Justice Ringera’s pay is an issue! Kenyans have a right to understand what benefits they have got from the hefty expense that the commission is to the tax payer? They should further ask whether these returns have been worthwhile, and if not, they have a right to ask for the commission to be disbanded. (Note: I am on record as having questioned the need for KACC at its creation. I contended, then as I do now, that the Attorney General has enough powers to investigate, arrest, cut deals and/or prosecute known cases of corruption. KACC was an unnecessary course for us to take.)

However, there is something more central to the debate that seems to escape most debaters on this matter. It is that of the law and what it allows the president to do and not to do in this respect. My fear is that we may not get to the answer given how political leaders and the Judiciary seem to be dancing around the issue.

There is an established process for appointment of KACC management. This process involves the KACC Advisory Board, Parliament and a recommendation to the President. The first-term appointment seems to have followed the laid down process, according to the law. The question is why the President skirted it this time around.

My personal view is that the President was not well advised and those around him should own up to in rather than dig their heels further. If they think it was within the President’s powers to make the appointment, as Vice President Kalonzo and Minister Mutula Kilonzo say, then they should have nothing to fear! They should let the courts rule on the matter.

Kenyans who clamour for constitutional governance should seek this route for obvious reasons. Among these will be the court’s interpretation of the law and precedence it would set thereof. In the long run, we will be for the good of all of us Kenyans. The court ruling will provide clarity in similar appointments, and thus save us unnecessary debate, time and effort in the future.

The Judiciary also has a chance to demonstrate its independence and (perhaps) restore public confidence, which has been eroding over time. A clear demonstration of this is politicians’ refusal to challenge the 2007 presidential elections results citing lack of confidence in the Judiciary! Indeed, Hon. Martha Karua, said as much when she resigned as Minister for Constitutional Affairs.

With the Justice Ringera matter, the Judiciary has been handed a Golden opportunity to assert its rightful role in the governance of the nation. It should take the “bull by the horn” and set the record clear!

That said most Kenyans still have doubts about the Judiciary’s independence. The suit will shine a light on that fact. And then, perhaps, Kenyans can work harder towards a truly independent Judiciary!

There is more.

Kenyans have been clamouring for constitutional reforms for close to thirty years now. Much of the agitation has focused on the Executive and its excessive powers. What guarantees are there that the Executive, or any other organs of governance for that matter, would follow/adhere to a new constitution if they don’t even respect what exists today?

Today, we have an assertive parliament in search of its rightful role in the governance of the nation. It is a far cry from the dark days of Kenyatta and Moi errors (whoops!) eras, where the Legislature was the Executive’s rubber stamp! It is a mark of good progress.

However, despite this progress, there is a long way to go towards attaining real legislative independence. Corruption (as is rampant in Kenya) cajoling, ethnicity, etc all distort legislative outcomes!

The fact is that as Parliament asserts itself and we make the journey towards an independent Judiciary, the Executive will cede some of its parasitic powers. That is a reality and it is important that the Executive learns to live with the reality of its constitutional mandate! The President and his advisors should accept that times have changed from the days of dictatorship as was the case under Moi and Kenyatta.

It is important that the Judiciary that plays its rightful role and ensure to keep the Executive and Legislature in check. Let it truly interpret the law to ensure the Executive acts within its powers.  Let it interpret the Law to ensure that Parliament doesn’t overstep its call and that it acts within constitutional powers. And let it offer proper interpretation of the law, even striking out what may be unconstitutional.

The KACC matter is a chance for the Judiciary to act in the interest of Kenyans rather than sectarian and ethnic interests. And if the courts rule against the appointment, the President and his men should take heart that such an act would serve Kenyans well rather than humiliation. You get some and lose some. It is the way of life.

Dr Matunda Nyanchama is an Information Security professional working in Canada. He can be reached at matunda@matunda.org; see more of his commentary at www.matunda.org.

© 2009 Matunda Nyanchama

Write a comment