Wambugu Ngunjiri takes on Judiciary with sweeping changes to law
Nyeri Town MP Ngunjiri Wambugu during a past function.
A key ally of President Uhuru Kenyatta is drafting an amendment to the law to remove Chief Justice Martha Koome from the chairmanship of the Judicial Service Commission (JSC) and expand its composition in what will escalate the tensions between the Executive and Judiciary.
In the sweeping legislative changes proposed by Nyeri Town MP Wambugu Ngunjiri, the JSC will be chaired by a non-lawyer picked from outside the Judiciary.
The changes will see judges and magistrates being held more personally accountable over their decisions, to an extent that litigants will be seeking damages in the event of a successful appeal for bad rulings.
"There should be a process of holding a person making bad decisions to account. Currently, they (judges and magistrates) are not questioned or held accountable," said Mr Ngunjiri.
He also wants the membership of the JSC to be overhauled to reduce the number of lawyers and increase representatives from other sectors in the Kenyan population. Currently as constitutionally recommended, out of the 11 members of JSC, only two are not from the legal profession.
19 members
In the legislative proposal, Mr Wambugu seeks to have the membership of the commission expanded from 11 to 19 members.
The extra members will include the representatives from youth and women organisations, recognised elders, persons with disability, religious institutions, workers unions, the ruling political party or coalition and the official opposition party or coalition.
He observed that the other two arms of government - the Executive and Legislature - are a representation of society and are composed of people from different sectors of the population.
However, he says the Judiciary is co-ordinated by people drawn from the legal profession only.
The proposed law also seeks to introduce a jury system of justice, where ordinary Kenyans who are non-lawyers will be participating in deciding disputes in court.
The proposed system, he says, is meant to cure judicial bias and discourage corruption in the dispensation of justice, especially in criminal cases.
The lawmaker says the jury system is intended to bring transparency and accountability. It will ensure the determination of court cases is based on the context of real life not just legal context, because the jurists will be picked from ordinary Kenyans.
Jury system
He says the jury system, if adopted, will cure such scenarios because common people will be participating in litigations and have an oversight role on the Judiciary. The jury system, as proposed in the legislative amendment, will comprise 12 members picked from different sectors of the society depending on the dispute at hand and who will not be employees of the Judiciary.
Their payment will be just a stipend for the particular dispute they have assisted in resolving, he says.
"The jurists will be deciding whether the accused is guilty or innocent while the work of the judge will be to pass a final judgment according to the law. Judges do not think about the ramifications of their decisions. They decide from a legal and idealistic perspective which is not where we live," he argues.
"We have a situation where one arm of the government serving 49 million of us is being co-ordinated by one profession. It is not a question of how good they are but their view on the society is directed by where they come from and legal studies. They talk to themselves and protect themselves as well as their peers," says Mr Ngunjiri.
He is also against the appointment of advocates to tribunals, saying the Judiciary has made all disputes to be about the law. Many other independent constitutional commissions are also headed by lawyers.
According to him, as currently constituted, the JSC and the entire Judiciary comprise people who are not willing to hold each other to account for their mistakes.
"An ordinary Kenyan who is not a lawyer chairing the JSC will help in making Judiciary a transparent arm of government. Today, we are all willing to analyse, audit, criticise and condemn the Executive and Parliament for their decisions. But we are not allowed to do that to the Judiciary. Whoever attempts to do so is told that he or she is interfering with independence of the Judiciary," says Mr Ngunjiri.
He describes the country's justice system and the JSC as a peers club.
"Judiciary is a marketplace for lawyers doing business with common people, who have no say over the process of how the business is done. You find your lawyer, the prosecutor and the judge are former schoolmates and peers. You are the only stranger and you are not allowed to question. They say they are professionals," explains Mr Ngunjiri.
The Commission was established under Article Article 171(1) of the Constitution and members include the Chief Justice (doubles as chairperson), a Supreme Court judge, a Court of Appeal judge, a High Court judge and a magistrate, the Attorney General and two advocates - a woman and a man elected by the Law Society of Kenya (LSK).
Others are one person nominated by the Public Service Commission and one woman and one man, who are not lawyers, to represent the public.
But it will not be a walk in the park for Mr Ngunjiri if he goes ahead with the plan. Constitution lawyer Charles Kanjama says for Mr Ngunjiri to push through such changes, it may require a referendum.
