Damned if you do, damned if you don’t is the Judiciary's lot

Saturday July 15 2017

Chief Justice David Maraga in Mombasa in on July 4, 2017. PHOTO | KEVIN ODIT | NATION MEDIA GROUP

Chief Justice David Maraga in Mombasa in on July 4, 2017. PHOTO | KEVIN ODIT | NATION MEDIA GROUP 

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Recently when the High Court ruled that the tallying of votes at the constituency level will be final, supporters of the National Super Alliance celebrated while their counterparts in the ruling Jubilee Party mourned.

Nasa then threatened to call for street demonstrations if the Independent Electoral and Boundaries Commission appealed against the judgment.

The electoral commission went to the Court of Appeal, but Nasa once again implied it would not accept a decision, that the judges should uphold the decision of the High Court. Meanwhile, Jubilee piously stood by the rule of law and stated that the IEBC had a constitutional right of appeal and the court should be left to pronounce itself without undue interference and threats.


The Court of Appeal eventually upheld the decision by the High Court. Jubilee members promptly dismissed the judgment as wrong, erratic and unworkable. Not surprisingly, Nasa hailed the judgment as progressive and democratic.

The hostilities moved to the ballot printing tender case. The court’s decision on the printing of Presidential ballots was favourable to Nasa, which had opposed the award of the tender to Al Ghurair Printing and Publishing of Dubai. Jubilee supporters went ballistic. An enraged President Uhuru Kenyatta dismissed the judgment and threatened unspecified action if the “trend” (of favouring the opposition) continued.


The Deputy President was equally harsh. He accused judges with relatives in the opposition leadership of non-disclosure and refusing to recuse themselves in cases where they have an alleged conflict of interest. He did not, of course, provide any evidence. He challenged the Chief Justice to explain why he had “directed” the IEBC to stop printing ballots. Of course there was no such directive and the poor man has no powers to issue such directives. Chief Justice David Maraga attempted to explain but the politicians were not listening. I think the Chief Justice should stop answering politicians as he can never win the war of words.

By this time, a line had already been crossed because subjecting a judge to public lynching is bad enough. However, the red one was crossed by Raphael Tuju who made disparaging remarks and went personal by identifying Justice George Odunga by name and claiming that he is a relative of Siaya Senator James Orengo. Mr Orengo promptly replied that he is actually related to President Kenyatta.


The campaign season is with us. Politicians and their supporters get carried away and make wild statements. However, even as we politic the Constitution and the rule of law must be observed. The independence of the Judiciary must be preserved, observed and protected at all times. This is the house which shelters the weak, the poor, the oppressed and the marginalised. It also shelters the powerful, the wealthy and the mighty. It has to make decisions which please some and offend others. That is the essence of litigation – there must be a victor and a loser.

To vilify, demean, trivialise and threaten the Judiciary because it has made a decision which we do not agree with is to endanger the very foundations of the rule of law and democracy. This is not to say that judges do not make mistakes and that they should not be criticised.

Indeed, lawyers and law scholars always place judgments under microscopic scrutiny. The criticism must, however, be principled and respectful. It should not be a “Kamukunji” outburst.


It is extremely disturbing when the President or the leader of the Opposition subjects the Judiciary to ridicule and contempt. The public may be encouraged into lawlessness and disobedience of court orders. That is what triggers chaos and anarchy. We must remember that all historical political upheavals were not started by a single action. They were started by seemingly minor, unrelated actions and utterances culminating in serious instability.

The role of the Judiciary will be particularly critical before, during and after the elections. If leaders start lambasting the Judiciary for delivering decisions, they will undermine public confidence in the institution. The Judiciary will always be in the position of “damned if you do and damned if you don’t” – let it be allowed to perform its duties with respect, dignity, confidence and decorum.

In terms of attitudes to court decisions, there is generally no difference between Jubilee and Nasa – reactions depend on whether or not a decision is favourable.

But generalities aside, one leader crossed the red line by going personal, and this has consequences. It is an offence of contempt of court to deliberately insult, ridicule, demean, vilify or subject a judge to scandal and public odium.

Senior Counsel Nzamba Kitonga chaired the Committee of Experts that drafted the current constitution.