Musinga, J may be unpopular, but he is right

The thrust of today's Public Watchdog article (When does public interest override an individual's, The Standard, Tuesday 24, May, 2011) is that under certain special circumstances, the rights of the individual must surely give way to the overwhelming needs of the majority, and that the Courts must make this distinction when such public interest issues as elections come before them. In Public watchdog's opinion, Musinga, J was wrong to grant the petitioner against the IIEC an injunction stopping the Kamukunji by-election. Instead, the court should have commiserated with the petitioner while still trampling over his right to be heard in a court of law.

In the 1920s, as Adolf Hitler was coming up in German politics, he had already formulated the germ of an idea: blame a community for the ails of the Wiemar Republic. As a result, the rights of minorities were slowly whittled away when the National Socialist Party came to power in the 1930s, starting with homosexuals and mentally retarded persons and ending in the gas-chambers of Sobibor and Riga. 

In Kenya, the courts do not have a stellar reputation; the persistent perception is that the Government and other powerful men and women have used the courts to trample over the rights of the individual or communities in the name of the majority. Just last year, the African Court of Human and Peoples' Rights ruled that the manner in which the Endorois were moved off their land to make way for a foreign-exchange generating tourist hotel was wrong and that the Endorois deserved compensation or in the alternative, the land should revert to them.

Whether it is one man's rights or it is a small community's, the principle still applies: it is wrong for the rights of a few to be trampled on in the name of the rights of the majority. Of course, it is regrettable that the IIEC spent many millions preparing for the bye-election. But it is equally wrong, as the Court determined, that the receipt of nominations was conducted in such a manner as the rights of the petitioner were violated. 

In Mario Puzo's The Godfather, the Don intones, "Better a thousand guilty men go free than an innocent man go to jail". In Kenya, it should be that it is better that the majority suffer an inconvenience if it means that the rights of the least of us will be protected. Once we start differentiating between the different individual rights that are inviolable and those that are, we will be treading upon a slippery slope whose end will only be calamity. To insist on the Courts being partners in this sort of discourse will be both calamitous and disastrous.