Wednesday, October 19, 2016

Welcome, Chief Justice.

David Maraga has been sworn in as the Chief Justice and Supreme Court has a new president. At the ceremony, the President urged the new Chief Justice to forge better relationships between the judiciary and the other arms of government while the fourteenth head of Kenya's judiciary promises to deal with election petitions swiftly, surely and fairly. Plus ça change, plus c'est la même chose.

One of the things that the thirteenth Chief Justice admitted to have failed to conquer was corruption, including in his Supreme Court. When he described Kenya as a bandit economy, he didn't do so in the context of a judiciary that was white as the driven snow. He made the declaration before the Philip Tunoi affidavit became public knowledge, as the Judicial Service Commission worked to confirm the veracity of the affidavit and the charges it laid at the feet of the new-retired Supreme Court judge. Dr Mutunga knew that corruption had hobbled the judiciary and had helped perpetuate the banditry that defined all arms of government.

Chief Justice Maraga's swearing in took place one day after a "governance and accountability" service that took place at State House at which the President scoffed at the efforts of the Auditor-General regarding the 2014 Eurobond. The President reminded the attendees of the summit that he has not failed at stopping corruption in his government; it is the people he had invited to the summit who had failed, when they protected and supported the corrupt. Chief Justice Maraga inherits Dr Mutunga's corrupted judiciary, perhaps a corrupted Supreme Court, and he is urged to forge better relationships by the Head of Government who admits no defeat in the war on corruption. (It almost goes without saying that Parliament and county assemblies cannot be trusted to be corruption-free zones.)

Yet, I care not for the corruption of the judiciary or any other arm of government. Kenya has been at this dance for too long. Life is short, so I shall focus on the judicial things that matter to me. Chief Justice Maraga is not a child, thank God, and he is unlikely to act as one. During his interviews, on hindsight, he conducted himself with a certain calm dignity that I found impressive. He was unflappable and didn't seem to take to heart the needling by some members of the Commission, unlike at least one other interviewee who ended up in a spitting match with a colleague of his on the Supreme Court. Chief Justice Maraga, on the face of it, is the calm the judiciary needs in increasingly roiled waters.

What some commentators have projected on him is interesting too. Dr Mutunga brought with him a non-traditional approach to public relations. He attempted to lead in the demystification of the judiciary which he signalled with the green robes and a casual approach to robing for advocates appearing before the Supreme Court. (Something I supported; horsehair wigs and advocates robes are not the measure of professionalism in a fast-paced, digital world.) Chief Justice Maraga may reverse the changes initiated by Dr Mutunga but I hope he does not. Instead he should deepen the relationship between the judiciary and court users, especially civilian members of the public. It is the only way that he can expect the support of the public for some unpopular decisions which he will inevitably have to make.

I hope he does forge better relations with the other arms of government, especially the national Executive. But he must be careful that this relationship is not an unhealthy one in which the whims and caprices of the national Executive compromise whatever vestiges of justice and fairness that still prevail in the judiciary. Finally, the new Chief Justice must be careful not to focus on colonial traditions at the expense of justice for the people. Wigs and robes are all well and good but they are not the sum or substance of the administration of justice. That remains, as it always has, a factor of the proper interpretation of the law and its fair application no matter the standing of the litigants before the courts. Sir, don't miss the forest for the trees.

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