THE arrest and intended prosecution of Kenya’s deputy chief justice, Philomena Mwilu, reflects some of the painful and difficult strands in that country’s legal and political story. On the one hand there is the problem of restoring the reputation of the judiciary after a long period in which corruption on the bench was an acknowledged fact. On the other, the government in Kenya is not known for showing respect to the now-reformed judiciary and its decisions. That lack of respect has been increasingly blatant with many contempt of court actions brought in attempts – sometimes ultimately unsuccessful – to ensure government obeyed judicial orders. Add to this the direct threats made against the judiciary after the highest court ruled that the 2017 elections were invalid, and one obvious follow-up to these threats when government made significant cuts to the judicial budget.
The impact of these purges is still being felt: in the same month as the DCJ was arrested, the courts heard at least two cases (see below) dealing with fall-out from that time, with people who feel they were wrongly targeted challenging their dismissal in the courts.
While the judicial purges since 2002 have been welcomed in some quarters, there is also concern that some people, innocent of corruption, were implicated and dismissed in the purge process. Reports by the Open Society Foundation of East Africa outline the positive and the negative results of these purges. (Kenya: Justice Sector and the Rule of Law and Kenya: Justice Sector and the Rule of Law-Discussion Paper ) The mixed results of these purges have even drawn comments from the judiciary in decisions from the bench, with three judges remarking, earlier this year: : “(D)epending on who you ask, (this) was either a noble initiative designed to exorcise the judiciary of the cancer of corruption, or a Machiavellian scheme, deviously contrived to rid the judiciary of unpopular or unwanted judges.”
And that is exactly the problem with the current crisis. Does the arrest of the DCJ indicate that the investigating and prosecuting authorities have indeed detected grounds for trial? Or does it show that the tradition of judicial “purges” is being continued by government as a means of keeping the bench in check?
Whatever lies behind the arrest and charges, this is a dangerous time for the Rule of Law and the independence of the judiciary in Kenya. Chief Justice David Maraga and his colleagues need wise and cool heads.