"When two grasses fight, the elephant eats them”

I was hurriedly walking to the Peace Palace, one of the most beautiful and breathtaking buildings I have visited in The Hague.  Certainly, The Hague for anyone in Kenya, has deep political implications.

Luckily, my mission was far removed from politics. In fact, the events I am about to narrate happened at the International Court of Justice. We lawyers simply call it ICJ, and it is not related to the ICC or to the International Commission of Jurists (also ICJ), whose Kenyan chapter is quite vibrant.

The International Court of Justice is the highest judicial organ of the United Nations. This Court is rather busy, dispensing justice among countries. One of the cases under its consideration is the recent sea boundary dispute between Kenya and Somalia.

I was animatedly walking towards the ICJ, chatting with Justice Emmanuel Ugirashebuja, the President of the East African Court of Justice, a Rwandan scholar, noble judge and good friend. He had read a recent article on Uganda’s politics by Asuman Bisiika about Ugandan presidential candidates, Amama Mbabazi and Kizza Besigye.

Emmanuel casually jested with Basiika’s title, “When two grasses fight, the elephant eats them.” We laughed heartily and I promised him that I would use Basiika’s title to bring the point home in my next article.

As our conversation grew more spirited and jovial, we were suddenly awestruck. There were some men walking in front of us…and some others by the side. They were on their own, no police, no bodyguards, no Mercedes. These walkers were not Johnny Walkers, they were not mere Tom, Dick and Kamaus. No ordinary mortals.

One of them was Justice Abdulqawi Yusuf, the Vice President of the International Court of Justice; a renowned jurist and Somalian citizen.

Another one was also ICJ’s Justice Mohamed Bennouna, from Morocco. The third one, also walking briskly, had already entered the Court’s magnificent palace. He was 83 year-old Hisashi Owada, a Japanese by birth and former president of the International Court of Justice. He even agreed to pose for a selfie.

These men are sitting on the most coveted court any world lawyer or judge would dream of. They are prestigious, renowned and held in high esteem all around the globe. Yet, their simplicity was astounding.

What has happened to our simplicity? Our humility? Our desire to serve more than being served? What has happened to the days when being in the public service meant doing a good job out of pure love of country?

Truth be told, I know many a hero in our public service, judiciary and professional bodies. Naturally, the press focuses on the noisemakers, which often prevents us from looking at things in perspective.

We get stuck in a sort of parochialism and short-sightedness that time and again kills our projects and dreams in East Africa.

We still hold on to that silly hare-brained mentality that makes us spend hours stuck at the Namanga, Malaba or Busia borders, when in other similar communities, people cross borders and countries without any hindrance and notice.

That ludicrous mentality reflects the immaturity of our positions; we hold our guns ready and fire at the smallest provocation.

We find a sad example of this in the wrangles among judges and lawyers. And when the two 'grasses' fight, the elephant, which is corruption, eats them, eats us, eats the country.

This time round, the row in the judiciary is about retirement age. Perhaps if we knew the history behind the retirement age of 74 we would not have started such a fight.

It was back in the late 70s when the government sought a way out to extend the tenure of the then Chief Justice Sir James Wicks, from 65 to 68 years.

Kenyatta asked Charles Njonjo to find a solution and Wicks tenure was extended by decree to 68, then later was extended to 70 years. When Wicks turned 70, he got two additional terms of two years, while a suitable replacement was found.

Thus, the retirement age stuck at 74 in the old regime, solely for practical and politically convenient reasons.

Certainly, if we knew the haphazard logic behind the number 74 this matter could have been resolved behind closed doors, without a public battle which exposed the highest and most sacred court on the land.

Something similar happens in LSK. The arbitration centre which has brought so much pain, anguish and has fuelled so much hatred within LSK began with the very genuine idea of using a donated plot to raise more funds for LSK and foster alternative dispute resolution.

"NO BILLS OF QUANTITY"

Sadly, it was poorly communicated and implemented. This created the standoff which I pointed out in my last piece.

The three key points were that each member should pay a large sum of money; that there were no Bills of Quantity despite the fact that the estimated cost of the project was Sh1.25 billion, and has now gone up up to Sh1.6 billion, and finally that most advocates did not see the point of a compulsory “charity” contribution which would not be to the direct benefit of LSK, for arbitration is open to all professions.

The Council at the time should have been much more open and transparent and read the mood of the floor before pushing down something that, after all, is not in the exclusive realm of legal practice.

Whatever the case may be, all parties need to sit at the table and speak in civilised terms.

I do not subscribe to any particular group; I subscribe to civilized discussion, to the art of listening. After all that is why we have been given two ears but one mouth, so that we may listen more and speak less.

I had a very candid conversation with Jackie Manani and she put across her points in a very forthright and respectful manner. Why can’t others do so, no matter what side they support?

For as long as the legal profession is brought into disrepute by unreasonable fights and unwarranted behaviour, corruption, that elephant in the room, will continue eating and growing, and its legacy, which is all it will leave behind for us, cannot be named here.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi