Chief Justice Mutunga, the Magic Wand and other things ...

Great Expectations

The Nation states in a headline "Supreme Court's plate already full."  Statements like this  are a sign of lazy reporting.  They demonstrate a lack of understanding of the court and create unreasonable and unfounded expectations and demands on the court and the judiciary as a whole.   What is more shocking is that politicians play along.  The Constitution is very clear that the Supreme Court has limited original jurisdiction. The only original jurisdiction the court has is to hear a Presidential Election Petition.   In cases concerning the interpretation of the Constitution or enforcement of the Bill of Rights, the High Court has original jurisdiction.  The case must then work its way to the Supreme Court through the Court of Appeal.

The newspapers are also replete with exhortations to the Chief Justice to do this or that or intervene in this or that case.   Fortunately the Chief Justice recognises the high expectations Kenyan have for change in the judiciary.  Unlike the past where the Chief Justice's position imperial in nature, the Constitution now diffuses his powers.  Firstly, he is the head of a Judicial Service Commission that has a number of independently elected and appointed members.  Secondly, the heads of the Court of Appeal and the High Court are elected by the judges themselves.  Thirdly, the nature of the judicial office is such that each judge is independent in decision making and has wide latitude in how he or she runs the court.  For the Chief Justice to be successful, he must inspire those who work under him to work towards the ideals he espouses.   This vision must receive full support of the judges and judicial officers working under him.

Another word on taxes

The Justice Minister, Mutula Kilonzo argues that it open to argue that Article 210 allows Parliament discretion to waive tax in any other legislation.  This argument cannot stand in the face of limitation of the power of Parliament to legislate tax exemptions.

Article 210 provides as follows;

Imposition of tax

210. (1) No tax or licensing fee may be imposed, waived or varied   except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to  the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

It is correct to state that Article 210 allows for Parliament to legislate the waiver of taxes or license fees but such legislation subject to the limitations provided.   Parliament is entitled to pass a law excluding a state officer from paying taxed but that law must not be on the basis of office held or nature of work done by the officer.  I just cannot see how a law can be passed circumventing these limitation.  It appears that some have now realised the folly of a political fight.

Money, Money, Money 

According to Keriako Tobiko, the DPP, his department was given Kshs. 115 million as against Kshs, 1.6 billion for the graft watchdog, KACC.    It is not in doubt, as he states, that this cannot be defended on any rational grounds.   According to the Report of the Taskforce on Judicial Reforms (the Ouko Report), the Judiciary has been allocated between Kshs. 800 million and Kshs. 1.2 billion  over the years, which is a sum less than the KACC.   Worse still its development funds are channeled through the Ministry of Public Works. The new building alone cost almost the full annual budget of the Judiciary!

On the part of the Judiciary, the Constitution and the Judicial Service Act now provide for a Judiciary Fund that will enhance the Judiciary's independence and one hope's the chronic shortage of funds to enable it work independently of the Executive will be a thing of the past.

Vetting of the Judges and Magistrates Board

The Selection Committee of the  Judges and Magistrates Board has shortlisted candidates for the Vetting Boards established under the Vetting of Judges and Magistrates Board Act.  There are 11 candidates for the position of Chairperson and 23 for members.  The candidates will be interviewed between 12th July 2011 and 28th July 2011.