DBM Mosotah, writing in May's edition of the Nairobi Law Monthly,
draws conclusions from the decision of the Judges and Magistrates
Vetting Board to dismiss four sitting Court f Appeal of Judges from the
Appellate Court, ruling that they are unfit to hold office (Purge of Judges heralds new era in the judiciary).
Of course, we all agree that a new era was heralded by the dismissals
of RSC Omollo, Emanuel O'Kubasu, Samuel Bosire and Joseph Nyamu; whether
this era is as Mr Mosotah espies it is something that I intend to argue
somewhat against.
First, let me join Mr Mosotah and point out that the Judiciary has historically been the institution that denied ordinary Kenyans their rights since colonial times. It is not enough to point out the perfidy of the Judiciary since Independence, but since its establishment. If it were not for the courts, hundreds of thousands of Kenyans would not have been deprived of their land, their political autonomy or their God-given rights. In the century that Kenya has had a Judiciary, instead of playing a ''civilising role', the courts have ensured that political, economic and social Darwinism prevailed: only the tough survive and the grubby, greasy, filthy, blood-soaked fingerprints of the Judiciary are all over the place. Second, I also agree that Justice Aaron Ringera's 2003 radical surgery was a fiasco, not simply because there was no sound constitutional or legal framework for the hatchet job, but because it was used by interested elements to advance their interests, not those of the public. If one doubts this, the reinstatement of Justice Philip Waki and his vindication by the Sharad Rao-led Vetting Board should be proof enough. Thirdly, because of the incestuous relationship between the Executive and the Judiciary, the rights of the people received short shrift. Testimonies by grown men in tears about the tortures they suffered at the hands of state agents and the indifference of the Judiciary are an indictment of an institution whose primary role is to uphold the rule of law and protect the powerless against the interests of the high and mighty. Until Dr Willy Mutunga was appointed Kenya's latest Chief Justice, it was doubtful that Kenya's judiciary would ever change direction. The unapologetic nature of the four disgraced Judges' testimonies before the Vetting Board is proof that individual members of the Judiciary continue to live in a past that has been condemned to the ash-heap of history by the Constitution and the collective will of all Kenyans.
I propose to re-write Mr Mosotah's lessons thus: First, the judiciary's duty is to promote and protect the rule of law against all enemies, whether Executive, Legislative or Judicial. This is what the Judiciary must do to secure the public trust. If it is incapable of applying the law impartially, without fear or favour, then regardless of how many judges or magistrates are sent packing, it will remain an institution that is reviled and feared in equal measure.
Secondly, at a minimum, all judicial officers must satisfy the terms of Chapter Six of the Constitution. It is not enough that in their personal and professional lives that they be blameless, they must ensure that in their civic lives too (tax-paying, law-abiding, etc) they lead exemplary lives to be emulated by right thinking members of the society. Therefore, instances of Judges swindling little old widows of their land, or being accused of attempted murder, or engaging with fisticuffs with members of the public should bring swiftly upon them the pitiless wrath of the Judicial Service Commission and their equally swift punishment and dismissal.
Thirdly, all judicial officers must avoid the temptation to one-up each other and go about their business professionally and, need I say, soberly. Apparently, the relationship between two of the disgraced judges was poisonous such that in the drafting of a ruling overturning the judgment of one by the other, such intemperate language was employed that it was specially mentioned by the Vetting Board. The only considerations that should come to mind as judicial officers conduct the business of the courts are the rules of the game and the proper application of the law. Otherwise, they can take part of their fat wallets and join tennis clubs.
Finally, they must avoid discrimination of all kinds. This is the Big One. Despite their personal circumstances or histories, judicial officers must only be influenced by the law. Joseph Nyamu disgraced himself in the Kadhis' Courts Case as did RSC Omollo in the Matiba Petition. Personal biases, such as they are, should be left on the judicial floor when the robe is worn and the people are demanding justice from the courts. Where judicial officers discriminate, whether slightly or egregiously, we must show them the same pitilessness they have shown us by setting aside the law and allowing their personal foibles to determine right from wrong, just from unjust.
Kenyans should not look at this process as part of the implementation of the Constitution; to do so means we shall miss the forest for the trees. We should look at it as one part of the process of building new and credible institutions. Seen in this context, the implementation of the Constitution ceases to be a series of event to mark the enactment of legislation, but a series of milestones overhauled as institutions are created, strengthened, empowered and made accountable to the people, from whom they derive their power. The institution must survive the individuals who exercise power within it, or who play roles of responsibility in it. Kenyans should get the chance to serve their fellow Kenyans out of a sense of duty and responsibility and patriotism, rather than as a sure-fire way of ensuring a fat bank account at the end of their working lives. If one thinks that unfit people are being discouraged from joining the Judiciary, then the spectre of law-school graduates', state counsels' and other young lawyers' desire to join the Judiciary because of the remuneration package should sound the alarms; it is this kind of thinking that leads to the corruption and fouling of an institution.
First, let me join Mr Mosotah and point out that the Judiciary has historically been the institution that denied ordinary Kenyans their rights since colonial times. It is not enough to point out the perfidy of the Judiciary since Independence, but since its establishment. If it were not for the courts, hundreds of thousands of Kenyans would not have been deprived of their land, their political autonomy or their God-given rights. In the century that Kenya has had a Judiciary, instead of playing a ''civilising role', the courts have ensured that political, economic and social Darwinism prevailed: only the tough survive and the grubby, greasy, filthy, blood-soaked fingerprints of the Judiciary are all over the place. Second, I also agree that Justice Aaron Ringera's 2003 radical surgery was a fiasco, not simply because there was no sound constitutional or legal framework for the hatchet job, but because it was used by interested elements to advance their interests, not those of the public. If one doubts this, the reinstatement of Justice Philip Waki and his vindication by the Sharad Rao-led Vetting Board should be proof enough. Thirdly, because of the incestuous relationship between the Executive and the Judiciary, the rights of the people received short shrift. Testimonies by grown men in tears about the tortures they suffered at the hands of state agents and the indifference of the Judiciary are an indictment of an institution whose primary role is to uphold the rule of law and protect the powerless against the interests of the high and mighty. Until Dr Willy Mutunga was appointed Kenya's latest Chief Justice, it was doubtful that Kenya's judiciary would ever change direction. The unapologetic nature of the four disgraced Judges' testimonies before the Vetting Board is proof that individual members of the Judiciary continue to live in a past that has been condemned to the ash-heap of history by the Constitution and the collective will of all Kenyans.
I propose to re-write Mr Mosotah's lessons thus: First, the judiciary's duty is to promote and protect the rule of law against all enemies, whether Executive, Legislative or Judicial. This is what the Judiciary must do to secure the public trust. If it is incapable of applying the law impartially, without fear or favour, then regardless of how many judges or magistrates are sent packing, it will remain an institution that is reviled and feared in equal measure.
Secondly, at a minimum, all judicial officers must satisfy the terms of Chapter Six of the Constitution. It is not enough that in their personal and professional lives that they be blameless, they must ensure that in their civic lives too (tax-paying, law-abiding, etc) they lead exemplary lives to be emulated by right thinking members of the society. Therefore, instances of Judges swindling little old widows of their land, or being accused of attempted murder, or engaging with fisticuffs with members of the public should bring swiftly upon them the pitiless wrath of the Judicial Service Commission and their equally swift punishment and dismissal.
Thirdly, all judicial officers must avoid the temptation to one-up each other and go about their business professionally and, need I say, soberly. Apparently, the relationship between two of the disgraced judges was poisonous such that in the drafting of a ruling overturning the judgment of one by the other, such intemperate language was employed that it was specially mentioned by the Vetting Board. The only considerations that should come to mind as judicial officers conduct the business of the courts are the rules of the game and the proper application of the law. Otherwise, they can take part of their fat wallets and join tennis clubs.
Finally, they must avoid discrimination of all kinds. This is the Big One. Despite their personal circumstances or histories, judicial officers must only be influenced by the law. Joseph Nyamu disgraced himself in the Kadhis' Courts Case as did RSC Omollo in the Matiba Petition. Personal biases, such as they are, should be left on the judicial floor when the robe is worn and the people are demanding justice from the courts. Where judicial officers discriminate, whether slightly or egregiously, we must show them the same pitilessness they have shown us by setting aside the law and allowing their personal foibles to determine right from wrong, just from unjust.
Kenyans should not look at this process as part of the implementation of the Constitution; to do so means we shall miss the forest for the trees. We should look at it as one part of the process of building new and credible institutions. Seen in this context, the implementation of the Constitution ceases to be a series of event to mark the enactment of legislation, but a series of milestones overhauled as institutions are created, strengthened, empowered and made accountable to the people, from whom they derive their power. The institution must survive the individuals who exercise power within it, or who play roles of responsibility in it. Kenyans should get the chance to serve their fellow Kenyans out of a sense of duty and responsibility and patriotism, rather than as a sure-fire way of ensuring a fat bank account at the end of their working lives. If one thinks that unfit people are being discouraged from joining the Judiciary, then the spectre of law-school graduates', state counsels' and other young lawyers' desire to join the Judiciary because of the remuneration package should sound the alarms; it is this kind of thinking that leads to the corruption and fouling of an institution.
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