President William Ruto poses with newly sworn judges of the Court of Appeal, from left, Joel Ngugi, Weldon Korir, Aggrey Muchelule and George Odunga at State House Nairobi on September 14, 2022.
Occupations that require sobriety, judgement and solitary moral courage are always at risk of disruption by an excess of controversy, negative focus, threats and intimidation.
A judge can render fair judgement in a politically sensitive case and the public will praise him or her for their courage.
At the end of the day, the judge will still go home, to be alone with his or her fears of retaliation.
In the newsrooms, there is a delicate psychological balance which must be maintained so that journalists don’t tip into self-censorship.
A fellow must feel that he has the confidence of those in charge of him and that the whole operation, from the proprietor to the cleaner, have his back and would move heaven and earth to fight for his right to freely exercise judgement.
I don’t know how it works in the Judiciary but if you are a judge hearing a case involving the government at this moment with the battalions of the Rift Valley in full battle regalia, at the very least you will go over all the facts and conclusions more times than you would ordinarily do.
The tendency will be to play it safe, not to stand up for principle. Which is why, in my view, our experiment with democracy as well as the gains made by the Second Liberation, collapsed the moment the President announced that he would disregard the orders of “corrupt judges”.
The very concept of separation of powers and the idea of the rule of law are totally compromised. Democracy is government by laws, not the wishes or feelings of men (or women), commoner or prince (or princess).
For the system to work, it is presumed that all of us will obey all the orders of the courts, not just the ones we like. There is nothing in the theory that anticipates a situation where one can legitimately sit in judgement of which orders are capable of being obeyed.
Obviously, you can’t just obey the ones you like. In any dispute, one of the parties will not like the outcome. Unless those who don’t like the outcome obey the orders, then the system collapses.
In a democracy, government is a fiction built, brick by brick, by laws. Government does not have objective, tangible existence. It exists only within the medium, the universe, of the law. If you take the law away, it is like sucking the brick and mortar from a building, it collapses.
A government that does not obey the law is a nullity and totally without legitimacy. It is an imposition upon the people. The Head of State is not a person, even if it takes that form. It is the depository of our values, the institution from which we take the cue on various matters. The Head of State sets the tone for us citizens, we copy what he does.
On Wednesday, Citizen Digital reported that Kapseret MP Oscar Sudi had led a group of youth to evict families from a piece of land in Kamagut who had court orders granting them ownership. The MPs is quoted as saying “kuna ukora mahakamani” (there is corruption in the courts) and vowed to lead the defiance of court orders in land cases in Eldoret. Big things start small.
Two shots were fired on June 28, 1904 at a Sarajevo street corner by a student, Gravrilo Pincip, their intended victims, Archduke Franz Ferdinand, heir to the throne of the Austro-Hungarian Empire and his Sophie the Duchess of Hohenberg. Those two shots caused a world war, in which 10 million civilians and 9.7 million military personnel were killed. Some 21 million people were wounded in a conflict that cost $208 billion.
The Judiciary is under a fierce onslaught by the Executive which accuses judges of being corrupted to issue orders against government projects. The politicians and government surrogates in the legal profession have taken cue and are piling pressure on the courts. I suppose the idea is to come up with another “radical surgery” which will see the courts given a Kenya Kwanza sheen like has happened in government ministries and parastatals.
I have no doubt that there are corrupt judges and court officials in this country. I’m not even confident that I will get justice in matters where I have appeared in court. Many Kenyans believe that the Supreme was unfair in its ruling, granting Kenya Kwanza electoral victory in 2022.
My argument is that none of that matters now: The Judiciary cannot and must not be reformed by the Executive for the reason that a co-equal arm of government should not be remade in the image of another.
The Judiciary, corrupt or not, must remain independent of Parliament and the Executive. That is what we ordinary people should demand. However, we should also bring pressure on the Judiciary to clean up its act.
All those good people who have been complaining of unfair treatment in the courts should present their grievances to the Judiciary where we demand that the complaints should be handled with the utmost dispatch. Kenyans, even those drunk with partisan politics, should choose democracy.
