Tuesday, September 20, 2016

Chief Justice Karua?

Save, perhaps, for Makau Mutua, law scholar, law professor, presidential refusenik, sometimes Twitter troll and public intellectual, if you really believe that the other candidates who were interviewed by the Judicial Service Commission merit to be appointed as Kenya's next Chief Justice, you haven't been paying attention.  Makau Mutua will forever be seen through the prism of the ICC cases against Uhuru Kenyatta and William Ruto and his steadfast refusal to see Uhuru Kenyatta as the legitimately elected fourth president of Kenya. If only Martha Karua had applied for the job, I wouldn't be bemoaning Kenya's record of missed opportunities.

Martha Karua has the qualifications and qualities needed to be Kenya's next Chief Justice. You have to go beyond the events of December 2007 and its aftermath and look at Ms Karua's entire record to see that I am right. With her qualifications and qualities, Ms Karua is wasted on national politics, moreso the presidency. The presidency, today, is a glorified procuring entity and the Cabinet is a glorified ministerial tender committee. Kenya's last truly presidential president was Mwai Kibaki. For sure he got entangled in tender scams, but if that is all you saw of his consequential presidency, again, you weren't paying attention. Back to Martha Karua; if she chooses to run for the presidency once more, Kenya will be denied the chance to finally reform the Judiciary, to finish what Willy Mutunga started.

As for the constitutional and statutory qualifications for the job, Ms Karua is more than qualified. As for the qualities needed to do the job, she stands head and shoulders above all the candidates interviewed so far. First, no one can claim with a straight face that Ms Karua is a Kanuist or has Kanuist tendencies. Since that day she took a stand against the political bullying by Baba Moi and his party, she has done her best to roll back the iniquities of the Kanu era. She has not always won; Moi's orphans proved to be numerous and resilient and some of her allies proved to be feckless wimps. Ms Karua has always been fearless and a Chief Justice needs her kind of fearlessness if she is going to face the forces of corruption, status quo and Kanuism still pervading the Judiciary.

Second, she is loyal to her ideals and to the ideal of a better Kenya. Many keep pointing out that if it wasn't for Ms Karua and many other supporters of Mwai Kibaki, the 2007/2008 post-election violence would not have taken place. I was one of these people and I was wrong. She supported Mwai Kibaki because it was the right thing to do. She had no information that the election had been stolen. She had no proof that the Electoral Commission had been compromised. Based on the information available to her at that time, I don't think she could have supported the unsupported claims by Raila Odinga to the presidency. She believes in the rule of law and the law prescribed precisely how an election was to be conducted and how a candidate could be declared the winner. She was not wrong.

Before you start singing "Anglo-Leasing! What about Anglo-Leasing?!" please remember that she has never been questioned or challenged in regards to the money that was returned to government and knowing what I know about the Official Secrets Act and the doctrine of collective responsibility of the Cabinet, I doubt that anyone, other than an Act f Parliament or an order of the courts, could have compelled her to divulge what were State secrets.

Third, Ms Karua is highly effective what she puts her mind to. She will see to the end her plans and programmes. When she has the support of her constituents, she has often proven unstoppable. It is why Gichugu's voters reposed their faith in her between 1992 and 2013. It is why when Mwai Kibaki looked to reform the water sector, he made Ms Karua the Minister for Water Resources Management and Development. It is why Mwai Kibaki chose her to negotiate with the opposition in the wake of the 2007/2008 crisis. It is why, when it dawned on him that Kiraitu Murungi was a liability, Mwai Kibaki appointed her as Minister for Justice, National Cohesion and Constitutional Affairs and trusted her to oversee the process that led to the harmonised draft constitution. If you don't believe that Ms Karua played a commanding role in the making of the constitution we have today, you have not been paying attention.

Fourth, Martha Karua is hard-nosed and aggressive, but she is not foolhardy. When she loses her temper, it is for strategic reasons. She has done the impossible in Kenyan public life; she has kept a tight rein on her ego and it has stood her in good stead. When she has lost, she has learnt from her mistakes and come back better prepared. When she has gone on the offensive, she has scared the living daylights out of the unprepared. If you remember when she debated William Ruto before the 2010 referendum, where Mr Ruto led the "No" team, she wiped the studio floor with him. By the end of the debate, she was the clear winner and Mr Ruto looked like he wished he were anywhere else but there. I almost felt sorry for the guy. Almost.

Finally, Ms Karua has successfully managed a political party in one of the most patriarchal political environments in Africa and she has done it with both charm and steel. I believe that Kenya needs to break the last bastion of male chauvinism by having its Judiciary headed by a tough-minded and honourable woman of Ms Karua's character. If we want to positively affect the lives of the largest number of people, we need to remember that many of our problems are problems of justice and injustice and we need a Chief Justice with the compassion of Willy Mutunga, the deft political touch we know Ms Karua possesses and the backbone to see things through. We don't want insiders whose rise to the top displays none of her fine qualities. Ms Karua should have applied for the job and the JSC would not have had to flee to The Hague to make their choice.

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