Monday, August 22, 2016

Fair or just?

Before you wig out, let's understand one thing: the judiciary exists to administer justice. Not right or wrong (except in the context of statutory ad constitutional construction) and definitely not about fair or unfair. The administration of justice revolves around provable facts and the proper interpretation of the Constitution, Acts of Parliament and the precedents of the judiciary itself. The administration of justice is not engineered to always arrive at fair outcomes but just ones. 
 
In this I agree with the Attorney-General: the judiciary has to be consistent in its interpretation of the Constitution, statute or precedent so that similar facts will more often than not lead to a similar interpretation of the law and similar judicial outcomes. Of course, every now and then, the judiciary must reconsider a prior decision and the tradition it has established in light of any new facts, a change in the law (or a Constitution, as happened in 2010) or even a new understanding of the meaning of key legal principles or concepts. The judiciary should not hold onto a particular interpretation of facts or the law simply because that is how it has always done things. But if the judiciary is, in effect, to change its mind about something, it must do so openly and clearly, setting out its rationalisation and reasoning.

It is why it is important to distinguish between what we wish to be and what is; we may wish for both a just and fair judicial process, but we only have one designed to dispense a justice that is often unfair. What we must campaign for is a fair society that shouldn't rely on the judiciary to promote fair outcomes. In the here and now, the judiciary is least-equipped to push this nation towards fair outcomes, only just ones. One of the hardest things to admit to ourselves is that it is those with the wherewithal to employ well-trained and experienced lawyers who are most likely to find both justice and fairness in the halls of justice. More often than not, it is undeserved.

If you doubt this, think carefully about the two killings by Tom Cholmondeley. In the first instance, the Attorney-General couldn't successfully prosecute the racist killer. In the second one, even though the Attorney-General secured a conviction after almost three years of trial, the killer was set free after serving only eight months. Yes, he was convicted of manslaughter and not murder, and yes he had been incarcerated for the entire period, but only his friends, family and lawyer believe that the sentence was both just and fair.

Especially in a time of political and social transition, such as what Kenya is undergoing, it behooves the judiciary to be twice as careful to appeals for progressivism in the manner that it interprets or applies the law. We are no doubt in need of changed circumstances but that change must not be driven by a committed, hardcore minority, but must come from a broad mandate from the widest number of Kenyans. Online bloggers or social media warriors may represent a vocal minority, but unless they can prove it, I doubt very much that they speak or write for the majority of Kenyans.

If we are to drive this nation towards providing or guaranteeing fair outcomes, this process must involve everyone and every institution, not just the political ones such as the government or the judiciary. Religious institutions must rebuild the trust they once enjoyed as should educational institutions. We must restore such tools as shame in our arsenal of social change because it is not right that men and women responsible for the fates of hundreds of thousands of young people will shirk their responsibilities when things go wrong but bask in the glory obtained through blood, sweat and tears when victory is won. Anyone with an ounce of shame would resign when things went wrong on his watch.

I don't think the Attorney-General was wrong to propose that consistency is sometimes better than being right because he too must realise that "right" is never a binary condition, but a fluid one, shaped by evolving circumstances, facts and, yes, laws.

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