Kenya: Mark Bichachi - Judiciary Too Must Follow SRC Guidelines

14 January 2022

The Constitution 2010 imagined a country where independent arms of government not only executed their mandates but also brought much-needed checks and balances to the Executive. It is with this in mind that the power to determine wages was taken away from the executive and handed to the Salaries and Remuneration Commission. This commission has brought sanity to the civil service and has even managed to slightly tame the excesses of our parliament which had a habit of increasing salaries willy nilly.

In the past, salaries were arbitrary and many got salaries personal to self. Meaning they earned whatever someone high enough decided they were worth. It was not uncommon for a junior to earn more than his boss or for a new recruit to be given the perks of a CEO. The entrance of the SRC was, therefore, a much-needed dose of sanity into the civil service.

One would, therefore, assume that the three arms of government would all follow SRC guidelines in the name of fairness and just payments for all. But unfortunately, one of the arms of government that seems to be a judge, jury, and executioner for itself is the judiciary. In 2019 the judiciary sued the SRC to itself and found the SRC in breach of the constitution when it came to handling the remuneration of Judges and magistrates. The irony and cacophony in it are obvious for if you asked any civil servant whether they are paid enough they would all say no, but the difference here is they have no power to act against the SRC. The judiciary however does, can and they did rule in their own favor that they needed more perks than the SRC was allowing them.

The very obvious elephant in the room is the obvious conflict of interest and the lack of oversight. Today the judiciary seems to be a cat and we its mice, who then shall bell it?

This is an obvious abuse of judicial power and emphasizes the reality that soon this nation will have a rogue judiciary. It is now a matter of public knowledge that we have a number of judges and magistrates who have been accused of corruption. They have however used the same judiciary to avoid prosecution and even investigation. Now how will we keep the judiciary accountable if they are untouchable?

The salt to the injury is that the untouchable judiciary can now increase its salaries and allowances at will and the SRC can do nothing about it. Previously the SRC disagreed with parliament and they went court and the courts upheld that parliament was to be paid under SRC guidelines. But when they disagree with the judiciary where do they go?

The right answer should be to court, but do you know what happened when they went to court? I will tell you: The courts refused to give them stay orders to keep the judiciary from arbitrarily increasing its own salaries and allowances and as if that was not enough the leadership of the SRC was to be committed to civil jail should they fail to comply and increase judicial wages.

I do wish this was a satirical piece or even a joke but the facts as they stand today is that the SRC was arm-twisted into giving illegal allowances to the judiciary and nothing can be done to the judiciary. This then raises fundamental questions: are judges and magistrates above the law and are they the new dictators of Kenya? Combine that with the reality that even after clear video evidence of a judge being connected to bribery there has still been no action against the judge. My friends we can rest assured that the judiciary is becoming the monster it was meant to tame.

The expectation of the constitution 2010 was that a stable judiciary should first and foremost subject itself to the laws of the land. It should also be the first to support the roles of independent commissions such as the SRC. A judiciary that becomes the law unto itself, as this one clearly has, is a danger to our nation and its current spat with the SRC is proof positive that we are in dangerous waters that our collective boat may sink: justice may fail to be our shield and defender and instead become the death of the hopes and dreams of our nation.

[Mark Bichachi is a political analyst and views expressed here are his].

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