•In 2017, after the nullification of the presidential elections and subsequent re run, the then presidential elect H.E Uhuru Kenyatta publicly declared this enmity.
•Simply because the executive had followed the law that unfortunately did not incline to his interests.
Image: FILE
Fingers are now crossed, expectations fidgeting. and the political climate is in a topsy-turvy. Everyone is anxious and the tension is palpable. Every minute to 20th August feels like a decade. We have been here before though. History makes it a bit easier to bear. It is not as tough as the wait for announcement of the 2007 presidential election results. But never again the after math of the later.
After four days of rigorous submissions on appeal of the consolidated petitions on the BBI amendment of the constitution the judges have retreated to the chambers. We are now at the poetic “all eyes on them” phase. The stage is set for what looks like a legal Armageddon- between the president and the judiciary.
But it is not just the legal issues that are causing the jitters. There is more. There exists bad blood between the judiciary and the executive. A very spiced vendetta. A war that started with the birth of an independent judiciary in 2010 delivered by the new transformative constitution. Unlike before, the executive could not use, abuse and reuse the judiciary as it seemed fit. An era of constitutionalism brought about a limit of the executive power. They hence would wobble not decisions of the court to take care of their oscillating political interests. This has always made the executive of the day berserk with fury.
In 2017, after the nullification of the presidential elections and subsequent re run, the then presidential elect H.E Uhuru Kenyatta publicly declared this enmity. Simply because the executive had followed the law that unfortunately did not incline to his interests. Uhuru thought that the judiciary were against his political ambitions. He vowed to revisit the issue once in office. True to his word, he did. He could not even exercise some decorum to make it not look so obvious. Or so they say, an angry man is not always a wise man.
The judiciary had to deal with budget cuts, unfair treatment and public humiliation. Yet, when it came to issues fight against corruption, the president wanted/wants them to burn the midnight oil, expeditiously conclude cases. He expressed a desire to have those that had dipped their hands into the jar of public funds. Particularly, of his concern were those had expressed divergent political views to his jailed. Whenever politicians in the opposition were faced with graft cases, the president was quick to tag the judiciary as the weakest link in the fight against corruption. When his buddies were in the same position, he would ask that the judiciary be let to do their work.
Its unequivocally true, that the president chattered this coalition path himself. He always expected the judiciary to be at his call, clearly against the principles of independence. He was frustrated that he could not short change the judiciary the same way he has managed with the legislature. Often than not we have had the president off to retreats with the members of parliament and county assembly and days later a previous controversial bill would pass with almost no resistance. The judiciary this time around stood up to stay true to its values. Those of being an independent arbitrator, an impartial referee and a principled adjudicator. To being for truth no matter who tells it and justice no matter who for or against. This frustrated the political class. The learned friends of the bench walked the titled of knowledge with character.
The judiciary has not been a white angel either. The allegations of corruption, incompetence and bias along the corridors of justice have been too grave to ignore. Reports of judges been items of auction by the political class have been floated around. There are also allegations of legal engineering by the judges to defeat justice in cases involving politicians. This has tainted the image of the judiciary. It has undermined the authority of their decisions as it has been argued dirty hands cannot write clean judgements. Otherwise how can an imperfect judiciary make perfect decisions? This has watered down the legitimacy of the decisions of the judiciary. It has enabled the executive disregard judgments with ease and go to the extents of subjecting them to ridicule. For example, the president has been seen to ridicule that decision by the judiciary terming the Nairobi Metropolitan Services (NMS) as an illegal entity when commissioning some of the development projects been handled by the outfit. This has enabled an environment where politicians break the law to follow the law and feel proud of it. How do people, clueless in legal principles, doctrines and Latin phrases have faith in an infect judiciary? The conduct of the judiciary has had a pernicious effect on the peoples’ perception of them.
If the testy executive cannot follow decisions of the referee, how does it then expect the opposite party to follow decisions against them? Power is okay, and stupidity is usually harmless. Power and stupidity together are dangerous. And such are the Kenyan politicians in power. Such a selective obligation to law when perpetuated by the government of the day is dangerous. It is a recipe for chaos. Calls have already been made inciting the Court of Appeal not to fall prey to the president’s appearance of humility in the yet to be concluded Court of Appeal case on issues referendum.
Appellant Uhuru’s humility has been regarded as a carelessness of opinion and a silent boast. It has been said that the president has an inherent behavior of disrespect for judicial decisions, and thus be conferred upon him the status of persona no grata. That is, a person not welcome to be heard in a court of law. It has opined that the president’s hands are unclean in the eyes of law and thus ipso facto a judgment in his hands will be defiled of its purity and authority. These are calls for the judiciary to take up its arms, not only to be a defender but also stir up the executive’s nest. Over caution is cowardice, the judiciary has been incited.
The judiciary has been hurt, with the moral of judges in the field of truth and knowledge shipwrecked by the ridicule and insolence of the political class. No matter the good intentions of the political class now, how they made and make the judiciary feel remains inscribed deep down its core. What then would stop the judges from retaliating. Engineering the law in the name of precedents and interpretations to hurt back the executive. Even when the judgements are in good faith and correctly made, how will such have the legitimate authority and respect. Will the judges now be seen as impartial adjudicator? It is worth the note, at this juncture, that people generally hear what they listen and see what they look for. How will the judges dress the judgment to make it not look like revenge? It all lies with the judiciary and burdens are for shoulders strong enough to carry them.
The judiciary must rise to the occasion (pun not intended). It has no otherwise. The quality of decisions and especially in matters with a political element should be meticulous. Must not be only be desirous with justice but dexterous with their pens, gallant with their expressions. It must not appear as if trying to deliver justice, it must deliver justice. Judges should not renege their vow to defenders of the constitution, of truth and justice.
They must not be frugal with principles. In the face of such extremes, it should remain nonchalant, wear a thick skin and be imperious to the political noises. It should be seen to publicly fight back when the politicians publicly rash out at them. Judges and magistrates should avoid a public tag of power. If anything it paints them in bad light, no matter how justified. A politician isn’t afraid of jumping into filth; that’s what they do for a living. The judiciary should refuse to be dragged into such tussles. Any general commentaries on the state of affairs of Chapter Ten (10) should be mature, coherent and cogent. From them, it should be a genuine audit of its workings and should not appear as if they are pointing fingers to anyone, whatsoever.
The judiciary must not seem to be between the devil and the deep blue state and especially with the BBI Appeal. The people’s perception of the judiciary must not be allowed to oscillate between a magnanimous and a pugnacious judiciary, or rather a wobbly judiciary. Fear or favor should not be felt in its operations. All men and women should be able to view the courts been a leveler, a place where all men are created equal. Where the Wanjigis are equal to Wanjikus and Miguna Miguna is equal to Waititu. That should not be an ideal, it should be a working reality. Integrity is their prana, going to court should not be seen as a chancy gamble for truth and justice.
Members of the bench should not allow the executive get assiduous with disregard to the rule of law. Familiarity breeds contempt. Such would be the start of a lawless society and a potential anarchy. No executive should be above the law and its particularly incumbent on the judiciary to clearly bring this out. Every person wishing for a position in the executive should be already aware of that fact even before they conceive the idea. It should not be seen as if obedience of court orders is up to the good will of politicians.
The judiciary must win the peoples’ confidence. With the BBI, rubber hits the road. Their judgement should read as if its an instrument of political war by one political side against the other. A transformative constitution requires a transformative judiciary since the latter is a guardian of the former. This is the perfect opportunity for a jumpstart. For the judiciary to win the trust of the people. For the judiciary cement their position as an independent yet accountable arm of government. The transformation should start here. It should then proceed to cleaning and dumbing its unclean elements.
It is principle, universally acknowledged, that servant should not outshine the master. However, though we have an imperial president elected through a popular vote, his reach of power has limits. gable gable The judiciary must remind him of that. That the people come in first. It is their inevitable evil.