Battle For The Soul Of The Judicial Service Commission

By Shadrack Muyesu

The composition of the Judicial Service Commission in the run up to the 2022 general elections is a high stakes drama that is going to leave many bruised. President Uhuru Kenyatta promised to revisit, and he seems to be right on course. In the unending war for submission and dominance is the Deep State on one hand, a cabal of State House old dogs bent on taking advantage of a muzzled opposition to seize control once and for all and avoid the embarrassment of yesteryear, and the self-styled progressive brigade on the other – the last standing bastion of judicial independence in a nation drunk comatose with impunity.

This month, the waters will mellow… or will they? With the Law Society of Kenya headed to the ballot to decide the society’s male representative to the Commission, the fear among most is that the process will be rigged in favour of the State. 

“If they bag – or rig – the elections, they would have compromised Supreme Court. They want numbers in the JSC to ensure that they can manipulate decisions. And now they already have four members in their favour,” a well-placed source familiar with the matter told the Nairobi Law Monthly. 

It’s a shameless case of double speak – unless of course the President is acting involuntarily. While Uhuru maintains his intention to step aside once his term expires, he has set about manufacturing crises at the pinnacles of justice with a view of creating vacancies and influencing succession. Having brought in Kihara Kariuki in place of Prof. Githu Muigai as AG, as well as Prof Olive Mugenda, Patrick Gichohi and former Cabinet Secretary Felix Koskei, his functionaries are now going after the slots occupied by CJ David Maraga, Philomena Mbete Mwilu DCJ and Prof Tom Odhiambo Ojienda, SC. They tried and failed with Justice Mohammed Warsame. 

“It’s no coincidence… Do you want to tell me that corruption belongs to the JSC and the Supreme Court?” poses our source. “Every time the President has had an opportunity to make appointments to the Commission, he has brought in people from his own backyard. Don’t forget that this is happening in an environment where, at the very least, he ought to show some solidarity with his Deputy. Those targeted are the truants, and although Justices Njoki Ndung’u and Jackton Boma Ojwang’ are facing their own troubles, anyone alive to Dark State function will tell you that there is zero chance the fire will consume them.”

Political hand

In the protracted war against JSC, the more urgent matter now is how to stop Prof. Ojienda’s return to the JSC. The State started off by frustrating him through the Kenya Revenue Authority. KRA declined to issue him with a Tax Compliance Certificate for 2018/2019 citing irregularities in his tax record and an outstanding tax debt of Kshs443, 631, 900 accumulated between 2009 and 2016. Curiously, during this period, the same KRA had consistently issued him with compliance certificates, effectively declaring him tax compliant. 

Needless to say, this wasn’t the first time KRA was pursuing Prof Ojienda. Ever since it became clear that he wouldn’t prostitute himself to the dark masters, the Authority has stalked him like a hungry hyena. How they remained consistent in issuing him with a clean bill of health, in spite of the “irregularities” is a matter for the gods. Some would say that perhaps the good Professor would have paid on time had they dealt with him with the same gusto and panache earlier.

Even more curious is how KRA, in a blatant disregard for court orders, sought to rely on records which had been expunged by the High Court in an earlier decision. While KRA had the right to appeal this decision, it ought to have been familiar with the trite practice that, until set aside, the orders of the trial court pending appeal stay alive. To cap up it all, KRA “mistakenly” issued Prof. Ojienda’s law firm Odhiambo & Odhiambo Advocates, with tax compliance certificate for the year 2018/2019. Equally baffled by this error, the High Court granted him conservatory orders compelling the KRA to serve him with the certificates, which allowed him to contest. Obviously KRA and its puppeteers were not amused. They sprinted to appeal and not without ensuring that they ignored the Court’s orders to duly award him the certificate.

The next frontier was the Court of Appeal – traditionally the State’s friend. Applying itself to KRA’s application seeking a stay of execution of the aforementioned orders, Justices Martha Koome, Agnes Murgor and Sankale Ole Kantai reasoned that it would be imprudent for KRA and LSK to be compelled to issue Prof. Ojienda with a Tax Compliance Certificate without first establishing whether by doing so the two institutions would be acting contrary to the law. Amazingly, in arriving at this decision, the learned judges simply ignored Ojienda’s submission that by dint of the KRA Act, issuing him with a certificate wouldn’t have stopped the Authority from revoking it if it later discovered that he had acquired it illegally.

Then there was the matter of his arrest. The Directorate of Criminal Investigations’ version is that Ojienda was arrested in connection to an ongoing probe into the troubled Mumias Sugar Company. He was also accused of forging a court ruling – a marvellous feat if you really consider it – and the dubious allegation that he misused a Government of Kenya Vehicle issued to him. It is difficult not to infer mala fides on the part of DCI especially when you consider that the arrest came hot on the heels of Ojienda’s problems with KRA. He was also arrested on a Friday, which fact meant that he had to spend three days in the cells. 

When that did not work either, his own kinsmen, the LSK Council declined to shortlist him. Their case was very simple: that Prof. Ojienda did not have a Tax Compliance Certificate. While the Society claimed to be non-partisan in the ongoing feud between him and KRA and in the general matter of the elections, its actions screamed otherwise. Inter alia, it both refused to accept his nomination in compliance with the decision of the High Court in petition 418 of 2018, as well as acted in cahoots with KRA in praying that the Court of Appeal grant a stay of the decision “so as to allow LSK a freehand to vet all nominees using the same criteria”. 

Allen Gichuhi’s shame

Leading this onslaught is the LSK Chair Allen Gichuhi – a man whose peers dismiss as egoistic and suffering a serious inferiority complex. He cannot control the Council. On two occasions his fellow council members voted against him when he brought the motion to have Prof Ojienda barred. Not to be fazed, he continues to revel in his role as Mr Macharia Njeru’s chief campaigner, spending hours on end multiplying social media groups and distributing pamphlets of messages cleansing Njeru. It’s no coincidence that Council’s performance under his stewardship is undistinguished. The Society has suffered as a result, losing visibility and credibility as a fearless defender of the rule of law.

Gichuhi, like Isaac Okero before him, is a state apologist. He was helped to his position specifically for this sort of job – to cripple the Society and avert the embarrassment that awaits his benefactors after elections. It’s one of the reasons the Society must exercise prudence in choosing its next representative to the JSC.

In the Deep State’s corner is Njeru, a man who has never practised law, whose whole life he has passed by as a state employee and who boasts a stone-cold stint at the helm of the important Independent Police Oversight Authority. On the other side is Prof Ojienda, a distinguished scholar who has made immeasurable contribution to the development of the law both in practice and academia. Where one would be hard-pressed to find a single instance of Njeru fighting against impunity, Ojienda’s stand is indubitable. His performance at the JSC is celebrated and he has paid a high price for it.

The irony is that it’s Njeru who continues to cry wolf. In a terse letter seen by the Nairobi Law Monthly, Njeru vows to fight against cartels that have “dangerously taken control of the JSC and ensure its independence from state actors. He also vows to address advocates’ practice issues and prevent people with questionable characters from sitting in the JSC.” The question the reasonable man would ask Njeru is, how do you streamline a trade you barely understand? When the contributions of the two men are juxtaposed, as a rationalist, choosing a representative shouldn’t be a difficult task.  (