Attacks on Judiciary undermine democracy

Senior officers in the Jubilee government have, of late, launched virulent attacks on the Judiciary.

These unfortunate attacks reveal silent frustrations with court orders given to stop certain acts of the Executive. When government officers attack the judges for how they have decided cases, they are sending a message to the Judiciary about how they want future cases to be decided.

The judges do not work, and should not be seen to work, for the Executive. And because of their special role in society, they aren’t expected to participate openly in the political process.

CANADA

These kind of attacks are not uncommon. In 2012, in a speech to the University of Western Ontario’s law faculty, then-Canadian Immigration Minister Jason Kenney attacked Federal Court judges for rendering decisions he didn’t agree with. He suggested that they were preventing him from properly administering the immigration programme.

The minister was completely wrong in this matter. He cited Parminder Singh Saini as an example of a person allowed to remain in Canada for years as a result of judicial interference.

What Kenney failed to disclose was that Saini was found by a citizenship and immigration officer in 2003 to be at risk of torture. A ministerial review of his case then took more than six years. Meanwhile, Saini, a convicted hijacker, had respected Canada’s laws and received two university degrees.

When Kenney, who became the immigration minister in 2008, decided in 2009 that Saini should be deported, a request for a stay was summarily dismissed. The Federal Court quickly stepped in to protect Saini’s rights.

AUSTRALIA

Last June, the Victorian Court of Appeal of Australia summoned three coalition government ministers for contempt. The three were cited over their comments attacking the state’s judiciary as being weak on sentences for terrorism offences.

The court served the Attorney-General George Brandeis with summons requiring the attendance of the trio. The court viewed those comments as intended to bring it into disrepute, to assert that the judges have and will apply an ideologically based predisposition in the cases and rely on politics and not apply the law in their judgments.

Profusely apologised

WARNING

The Australian Commonwealth Solicitor-General Stephen Donaghue Personally appeared before the court on the instructions of the Prime Minister and profusely apologised for those vile remarks on behalf of the three ministers and the Government of Australia.

Although they escaped contempt of court penalties, the court gave the ministers a strong warning that such statements were never to be repeated and the Solicitor-General gave an undertaking that the mistake wouldn’t recur.

That is how a civilised democracy operates.

CASTIGATION

The latest attacks by the State officers erode public confidence in the Judiciary. The judges must be allowed to do their work without interference. When government officers attack judges brazenly, they also attack and undermine our democracy.

Kenyan citizens must protect the Judiciary because the judicial independence is derived from the people. It is because courts are obliged to protect the rights of unpopular individuals and minorities that they are exposed, in elected democracies, to political castigation.

If judges are to perform their functions when the going gets rough, they need tenure to underwrite their independence. Personal courage may not always be enough.

Mr Mwamu, a former president of East Africa Law Society, is an advocate of the High Court of Kenya. [email protected]