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Courts must not be allowed to derail referendum

Saturday May 29 2010

 

By MAKAU MUTUA

Unlike Gitobu Imanyara, the plain-spoken Imenti Central MP, I will not declare the ruling on kadhi courts “diabolical”. However, I cannot but read sinister motives in the judgment. The ruling is inexplicable and beyond the mischievous.

The attempt to confine kadhi courts to the 10-mile coastal strip is a witch’s brew. It tempts fate and plays fast and loose with Kenya’s stability and religious peace.

It is a blatant act of judicial skullduggery. Like the illegal edit of the proposed constitution, the ruling is yet another quixotic attempt to derail the referendum.

I hope cooler heads will prevail. But we must call a spade by its name. Why did the judges do it?

In a democracy, judges are the custodians of legality. They are the pillars of stability and guardians of the rule of law. Every law student is taught that the law does not exist in a vacuum. Context is everything.

How could the judges have been totally oblivious to the charged political climate because of the inclusion of kadhi courts in the proposed constitution?

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I would be happy to accept their plea of ignorance if they lived in Mars. But they don’t. Which begs the question – why add fuel to a raging fire?

Judges do not make the law. They interpret it. That’s why they must leave law-making to the Legislature.

But in this case, the judges injected themselves in the making of the new constitution. They did so in the most unseemly manner.

They have no jurisdiction to declare the Constitution “unconstitutional”. Nor is it their place to take political sides, and stick their nose where it does not belong. Judges must be fastidiously impartial and above the political fray.

Brazen political activism is the death knell of judicial independence. The Judiciary loses public confidence – its most cherished asset – when it enters the arena of politics.

The ruling was bizarre as a piece of jurisprudence. How can kadhi courts be “illegal” if the Constitution, the supreme law of the land, provides for them? Nothing – and no one – can declare anything in the Constitution “illegal” or “unconstitutional”.

It is just as plain wrong – and boneheaded – to declare public funding of kadhi courts “discriminatory” and “sectarian”. The courts are mandated by the Constitution as an integral part of the official judiciary.

That’s why state coffers must fund them. The judges comically – but tragically – opined that such funding amounted to “segregation”. Say again?

The spectre or metaphor of “segregation” is a scarecrow. That word conjures up Apartheid South Africa and slavery in the United States. Did the judges expect us to believe such hyperbole? All lawyers are taught the economy of language.

Exuberant overstatement is odious to judicial temperament. So why did the judges reach for the most emotive words in the English language?

One can be forgiven for thinking that the judges used the law as a sling shot in a misguided partisan attempt to kill the referendum. That’s why Muslims are seeing red, and no one can blame them.

It is legal nonsense to claim that kadhi courts are religious. Nothing could be further from the truth. Kadhi courts are no more religious than civil courts.

To flip the argument, kadhi courts are as “religious” as civil courts. That’s because Kenya’s civil judiciary is ipso facto Judeo-Christian and English in origin.

Either both courts are “religious” or they are not. That’s why the pot cannot call the kettle black. The judges are wrong to see a log in the other person’s eye, and overlook the one in theirs.

This is all the more serious because the three judges are named Roselyne, Mathew, and Joseph. It is not lost on anyone that their names are not Abdul, Omar, and Aisha.

Does this not subvert the cardinal rule that justice must not only be done but must be seen to be done? The ruling will solidify the view that the Judiciary is the embodiment of impunity.

Davinder Lamba, the civil society activist, has popularised the saying “why hire a lawyer when you can buy a judge”. That’s one reason judges will be sent packing if the proposed constitution passes.

I cannot but think that judges have a conflict of interest when they opine on matters touching on the review process.

I cannot say for sure whether the three judges are in the No camp, but it’s undeniable their ruling supports those who oppose the new constitution. Perhaps most judges are in the No camp.

The No camp may have many other arrows in its quiver. The good news is that the ruling on the kadhi courts is a legal dud.

It has zero effect on the referendum or the proposed constitution. That’s because the process is immunised by the Constitution.

No guerrilla tactics – like illegal edits – can steal the sovereign right of Kenyans to make a new constitution.

It is a futile legal contortion to attempt to block the process in a court of law. Let’s ignore the faulty and “illegal” judicial ruling – it must not be allowed to threaten Kenya.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.

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