Our judges and magistrates: Who will judge whom?

Sunday February 14 2016

Chief Justice Willy Mutunga at The Supreme Court of Kenya on November 19, 2015 during the launch of Judiciary Strategic Plan. PHOTO | EVANS HABIL | NATION MEDIA GROUP

Chief Justice Willy Mutunga at The Supreme Court of Kenya on November 19, 2015 during the launch of Judiciary Strategic Plan. PHOTO | EVANS HABIL | NATION MEDIA GROUP  

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With the headline “Justice in the dock” last week, one Nairobi newspaper hit the nail squarely on the head.

It reminded all Kenyans that they live in a situation of practical lawlessness. The system’s dyed-in-the-wool defender is likely to reaffirm that all our laws remain intact in the books. But “in the books” is not where we need those laws.

We want them, whenever called upon, to leap out of those pages to serve Kenyans adequately. What is alarming about certain recent newspaper headlines is that a Kenyan can no longer resort to our courts with the assurance that his-her case will be heard objectively.

Ever since the 19th century, when Europe planted that deadly virus in us in colonial conditions, money – the “invisible worm” which the poet once espied in England – has systematically invaded our very organs of thought and feeling and gobbled up all the vital parts that could serve society as ethical restraints.

In terms of governance, whenever a cool sum can pass – “without let or hindrance” – from the hand of an accused into the pockets of a judicial official, the society in which it habitually takes place is as good as gone to the dogs. And, in Kenya, corruption has passed from “ordinary life” to become the done thing in the very organ of justice.

If it is true – as is generally feared – that what the daily newspaper headlines say are but the tip of the iceberg, then you can imagine how gargantuan and minatory the whole iceberg itself really is beneath the human ocean that we call Kenya.

A truly independent and thoroughgoing inquiry would lay bare a veritable Augean stable of judicial filth. When a country perennially suffers from what Margaret Kobia, who chairs the Public Service Commission, might condemn as “pecuniary embarrassment”, the question becomes ineluctable: How can we go on like this? A hundred times even more worrisome about our court judges and magistrates is the question: Who will judge whom?


Will all those officials at all echelons of service who do not suffer from this social HIV please stand up to be counted. Yet I do not mean that Kenya no longer produces any moral and intellectual paragons. I know quite a number. But I am not in charge of the slotting of relevant personnel where it is needed.

Indeed, “needed” is the operative word. How many Kenyans with vital skills and experience are languishing on the peripheries of service just because they do not belong to the “correct” tribe or gender or religion, or because they are suspected to live in active sympathy with a certain political party?

From what the Swahili call kasumba, many of those in charge of hiring would rather engage a white-skinned European or North American and pay him a hefty salary and astronomical perquisites, even though the myth has long ago been exploded – that if you come from Europe and wear a certain skin colour, then you are automatically an “expert”.

“Expert” is the key word. That is why – as long as we do not have a citizen with appropriately useful qualifications, we should not be shy about hiring an expatriate as long as we – those in charge – have a recognised training programme so that all expatriates can be “Africanised” or “Kenyanised” as soon as possible.

Yet Kenya’s Bench appears to have been fully Kenyanised. That is why it would be a sad and extremely embarrassing commentary should it be shown conclusively that localisation or “Africanisation” of the Bench is the cause of the increasingly questionable judgments that issue from our corridors of justice.

The situation immediately calls on Chief Justice Willy Mutunga to devise a system by which to ensure the Judiciary is always manned by individuals who, by their actions, show that they merit the appellation “Justices of the Peace”.

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