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Not always in kenya justice delayed is justice denied!

Discussion in 'Kenyan News and Politics' started by Rutashubanyuma, Oct 6, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

    Oct 6, 2010
    Joined: Sep 24, 2010
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    In 2004, Justice of Kenyan Court of Appeal and the president of the East African Court of Justice, Mr. Justice Moijo Mataiya Ole Keivua filed a civil miscellaneous application at the constitutional court of Kenya challenging at both the Chief Justice and the Akiwumi tribunal appointed by president Mwai Kibaki from investigating him over charges of judicial malpractice. This poignant rollercoaster commenced no sooner after the NARC-RAINBOW coalition came to power following Kanu dislodgement from the political high-table. Part of the recipe in the NARC-RAINBOW catharsis was to usher a new dawn in Kenyan governance where zero tolerance on graft reined supreme. The judiciary was ferociously targeted in this anti-graft crusade.

    President Kibaki interdicted the then Chief Justice Bernard Chunga and went on to establish a tribunal to investigate him. The then Chief Justice Chunga was regarded as the epicentre of Kenyan judicial graft partly because of his diabolical role as a DPP during the horrors of Mwakenya witch-hunting episodes where anti Moi lynchpins met brutal persecutions in a form of detention without trial, torture and ultimately forfeitures of most civil rights. With Kanu democratically sidelined, Mr. Chunga was exposed as a result of torpedoed patronage. Mr. Chunga rather than confronting his accusers he opted to retire quietly. But for Justice Moijo, he would have none of that cowardliness. Through his audacious endeavours, he tested and stretched the Bench’s ability, impartiality and far more primacy the independence of judiciary from the executive clutches.

    Seven years down the road, the constitutional court of Kenya delivered its unanimous verdict which verified to Justice Moijo that indeed, in Kenya, justice delayed is not necessarily or always justice denied. In a 94 pages tome, the three judges of constitutional court not only exonerated Justice Moijo but also upbraided his tormentors for trampling upon the rules of natural justice and the Kenyan constitution. While the judges had nursed no quarrel at the powers of the Chief Justice to appoint a tribunal under Justice Ringera which did the investigative preambles but they faulted the duo for a failure to afford justice Moijo the opportunity to contradict every adverse allegation leveled against him. The judges censured their boss, the Chief justice – for sidestepping the National Judiciary Commission which had previously recommended to president Kibaki the appointment of Justice Moijo to sit in the Court of Appeals Bench.

    The judges were of firm view that while the procedural details in the constitution of removing a judge were silent on the role of the Judiciary Commission but they felt quite strongly the Commission should have been consulted over Justice Moijo disciplinary contretemps because the Commission was involved in his appointment. Was this not a proven anecdote of judicial activism? The judges also took a swipe at president Kibaki for delegating unlimited investigative orbits, beyond those the Chief justice had recommended to him, to the Akiwumi tribunal he had appointed. The judges viewed the president had assumed and delegated powers which he did not possess under the Kenyan constitution. The Akiwumi tribunal; too, was not spared for pussyfooting at according Justice Moijo an opportunity to controvert adverse accusations facing him, and also for setting up a new case against Justice Moijo beyond the purview delineated by the Chief justice.

    The judges felt unlimited investigative powers donated by president Kibaki to the Akiwumi tribunal were unconstitutional and the tribunal erred to assume and work upon those faulty terms of reference. Under this studious deport, the constitutional court of Kenya unanimously debarred the Akiwumi tribunal from investigating Justice Moijo and extended to him a carte blanche of choosing reinstatement or voluntary retirement from the Bench. After seven years of testing the efficiency and effectiveness of Kenyan judicial system, Justice Moijo and all justice seekers across Kenya had a powerful reason not to blow a raspberry but to sigh with contentment: Justice has been served and seen to have been served. What a relief!