The Supreme Court building in Nairobi.
This month continues to disgorge itself of unrelenting dramatic intensity in our public affairs. As the year started, the Law Society of Kenya, capriciously constituted itself as a subordinate department of the Judiciary.
Consequently, its leadership, both actual and aspiring, designated itself as judicial shop stewards tasked with the urgent remit of assaulting the Executive, discrediting all protests against judicial impunity, and shielding the Judiciary from any demands for accountability, from the public or elected representatives of the people.
So committed was the LSK to this auxiliary vocation, that it mobilised advocates to hold demonstrations throughout the country, and complete with the old purple ribbon, to wag a stern and unforgiving finger at the Executive for threatening ‘judicial independence'.
Towards the end of last week, as the LSK campaigns trooped to Mombasa to march in the sweltering streets in solidarity with that constituency, the Supreme Court judges took on the flabbergasting, outrageous and incorrigibly inimical decision or purporting to ‘recuse themselves' from all causes where the parties are represented by Senior Counsel, former dean of the University of Nairobi’s School of Law and former president of the Law Society of Kenya, Ahmednasir Abdullahi.
As the country reeled from the reverberations of this scandal, it was disclosed that the Chief Justice had formally sought audience with the president to resolve any misunderstandings over a cup of tea. The president confirmed his availability for the parley.
In one fell swoop, the Law Society was stripped of its righteous mantle as the defender of the Judiciary, as its much adored client fled headlong into the arms of the Executive, leaving it humiliated for taking all the embarrassing trouble.
As if that was not enough, it had to contend with the Supreme Court's brazen decision to pronounce its undisguised disaffection with one of its most decorated members, the Grand Mullah himself, together with any party reckless enough to associate with him, and announce to all the world that the right to access justice is firmly contingent upon judicial whim and fancy.
In so doing, the Supreme Court disabused lawyers about the nature and purpose of their profession, by implying that the right to appear before the courts is not a professional right invested by the Advocate's Act, but a circumscribed privilege of admittance extended by judicial officers based on their momentary disposition.
Consequently, the LSK took leave of its judicial subalternship, in order to protest the what it deemed an unholy fraternising between the Chief Justice and the president, and to defend advocates' general right of audience before courts.
Instantaneously, it dramatically switched from defending the Judiciary against the Executive, to protesting the Judiciary's corruption, tyranny and agreeing - to a large extent - with the Executive, that there is a fundamental corruption problem in the Judiciary that deserves serious attention.
It is to be hoped that as my learned colleagues participate in the LSK election campaigns, which are utterly awash with whisky and replete with nyama choma, there shall be sufficient residual bandwidth to attend to the obvious imperative to deliberate on the Society's urgently needful role as the nation's most admired professional society, intellectual vanguard, champion of democracy, and the engine of our progressive movement.
As matters stand, the extent of our intellectual capitulation, organisational malaise, ideological ambiguity and professional mediocrity is such that the most basic of impostors, essentially sundry louts with airs in suits, can infiltrate the festivities with tremendous ease and partake of the obscene surfeit without any danger of detection.
There is need to rescue the LSK, before it is altogether too late, from the delusion that advocacy is a subsidiary function relegated to inferior offices in the Judiciary, in order to liberate it from the mortifying oscillation, from pillar to post, as it attempts to align with the intemperate effusions of an addled judicial leadership.
As for the Supreme Court, one can only empathise with its desperation in the face of an intransigent, captious and even disdainful Grand Mullah, whose views of the intellectual, professional and ethical credentials of some judges has been blistering. He is utterly disagreeable, enthusiastically contentious and totally implacable.
I understand that many may have excellent reason not to like him, and a good number have good cause to hate him heartily. However, that in no way affects his right to appear before the nation's courts of law and represent whomever he wishes to the best of his professional capability.
Justice is not dispensed on the basis of love, friendship, admiration or other motivation. Justice is dispensed to all, without fear or favour. However much we wish, the Judiciary does not exist to serve nice, virtuous, humble or pleasant people: it exists to serve all.
The effect of the Supreme Court's decision is a chilling warning to all citizens and their advocates to pledge fealty to judges on the pain of arbitrary excommunication and denial of justice. For this reason, the Grand Mullah is a supremely daunting test that the Supreme Court failed spectacularly.
- Mr Ngéno is an Advocate of the High Court
