We have three arms of government in Kenya:
1) The Executive
2) The Legislature
3) The Judiciary
These three arms of government are supposed to be independent, complementing each other in the functions of state.
The Executive is normally an elevation of members of the Legislature to new roles. You are voted in as a member of the house, get appointed to the cabinet, then join the president in the executive wing of government.
Those in the Executive are meant to execute the wishes of the Legislature. In Kenya, the Executive in most cases overrides the Legislature and oftentimes operates as if it is above the law.
In Kenya, the Executive governs by giving instant justice. The president directs that such and such is to be done, and like the days of Jesus, it is done. In most cases the Executive does not give a damn about the law. We have many cases where the Executive has gone against the law with impunity, such as when giving out title deeds against a court order. This has in most cases led to conflict, with the Judiciary left at a fix.
Those in the Executive have also brought unto themselves the role of appointing those who are to serve in the Judiciary. With this, the Judiciary cannot pretend to be independent. They end up playing subservient roles to the Executive. Just watch the chief justice appearing next to the president and you will know who calls the shots.
The end result is that justice ends up purely at the beck and call of the Executive. We have ended with many cases not judged in accordance to the gravity of the law. Judgment is given with the Executive strongly in mind.
Can we with confidence condemn the Executive as the single most institution that has led Kenya off the path that we chose to tread at independence? Yes.
The Executive has in the process sought to manipulate the Legislature to pass laws that tend to give its members unbridled access to the national cake. Laws have been passed to give the presidency powers that not even Jesus Christ enjoyed before he was crucified. Such powers have tended to impose the Executive as the prefect of the Legislature and the appointing authority at the Judiciary. Yet the three ought to be independent of each other.
The time has come when Kenyans must look at all the laws being brought to parliament for legislation with a fine brush. Laws that tend to be self-serving must not be allowed to see the light of day.
The Legislature must reclaim its moral high-ground by rising to the occasion. It must not allow the Executive to manipulate some of its members to move motions that are self-serving. Motions must have the interest of the country as sovereign. Our members of parliament have that onus of saving Kenya from the yoke of tyranny from the Executive.
The time has come when institutions such as the police must not kow-tow to the Executive. The legislature must ensure that the police obey the law, not the Executive. In Kenya, you will find the police obeying orders from the Executive even if those orders are in conflict with our laws. The Legislature must hold such officers to account. If not, they must be forced off their offices and charged accordingly.
The lie that such officers serve at the pleasure of the president has been used more often to entrench impunity. They should serve at the pleasure of the president but in keeping with the law. If the wishes of the president are at variance with the law, the officers should obey the law. That is how it must be.
This is so because the president can lose elections. When that happens, it is the officers that will maintain the nation. But if they are partisan and personal, they will die with the president, just as happened in January 2007. The police and the Judiciary failed to respect and obey the law. They chose to serve a person rather than an institution.
The Legislature must follow on this kind of impunity and make it clear that constitutional officeholders, even though appointed by the Executive, owe their allegiance to the law, not the person of the appointing authority.
The Judiciary in Kenya has made it possible for each and every thief to smile their way to their dens and their banks. This is so because in Kenya, despite all the mega scandals that we have had since independence, no one has been jailed for graft. Is it because the Judiciary is compromised, or simply because our laws are defective to the extent that they cannot convict thieves who have stolen from government.
On a daily basis, small men are being jailed for all the petty crimes. How come no such convictions have been seen in relation to the big boys in government? Is it because the members of the Judiciary are political appointees serving the interests of the appointing authority?
With all the mega cases being taken in circles at our courts, one would with certainty see the connection. This kind of roulette that we see around us is what the Executive is hell bent on by creating a tribunal that should try those implicated in the civil strife of 2007–08.
They must not be given this chance. Impunity must be uprooted once and for all.
Again the Judiciary have nothing to show for their existence. Our courts have backlogs of cases, some so simple. If we had an output mechanism by which we could measure what the judges do, things could be well. But as it stands, we do not know how many judgments are passed by the members of the Judiciary on a daily basis.
All in all, the three arms of government must be seen to be operating at optimal levels without one arm overriding the other. The Executive must obey the law as it implements it. The Legislature must rise above partisan interests to legislate laws that are of benefit to the country, while the Judiciary must adjudicate honestly without looking at how the Executive sits.
In all, justice must be our shield and defender.
* Odhiambo T. Oketch is the chief executive officer at Komarocks Community Development Network, Nairobi.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.