Will the Koome Court ever achieve greatness?

I saw an astonishing series of social media videos yesterday: the Judges of the Supreme Court gravely and seriously declaiming about the jurisprudence of the Court. Then the members of the Court, led by its president and deputy president, presided over a televised spectacle at which Chief Justices emerita and the leading lights of the executive, the President and Deputy President, were in attendance, and the subject du jour was the twelve years of jurisprudence by the Court. The PR game has finally alit at the Supreme Court of Kenya.

The judiciary of Kenya has a long and complex relationship with the peoples of Kenya, the complexity revolving around the way the judiciary was used to dispossess Kenyans of their property, violate their rights and fundamental freedoms, entrench human rights abuses within the fabric of the justice system, and perpetuate and sustain two dictatorships in rapid succession (three, if you count the tyrannical dictatorship of the colonial government).

The promulgation of the new new constitution in 2010 was supposed to be the birth of a new judicial dawn. Just as the defeat of Baba Moi's project was supposed to be in December 2002. Instead, the Kibaki era gave us the Radical Surgery that was neither radical nor surgical. And the Uhuru Kenyatta era gave us Judicial Vetting that did very little actual vetting. The outcome, in both epochs, is the sad realisation that "independence" as understood in Kenya is the independence to spend public money on projects of doubtful value without oversight or control.

From the moment the Ministry of Finance handed over the Income Tax House to the Judiciary, and it was repurposed as the Milimani Law Courts, the Judiciary has been spending our money like drunken sailors on shore leave. Willy Mutunga, CJ emeritus, supercharged the profligate squandering of public funds with his expansive real estate projects in the name of construction of law courts to bring justice closer to the people. For sure, the courts came to the people, but justice remains just as elusive.

David Maraga, CJ emeritus, was more successful in his efforts to bring justice closer to the people. Despite the reckless sabotage by the Law Society of Kenya, he set in motion the rollout of the Small Claims Courts that will have far greater impact on the lives of litigants that the seventy or so new law courts that Dr. Mutunga built.

The incumbent Chief Justice does not have a real estate empire to build or a brand-spanking-new judicial paradigm to shift. The judiciary she heads is a grab bag of judges who have found lawyerly arguments to get around their obligations to make judgments in the best interests of the child (that means you Mr. Chitembwe) or have not had the best luck staying out of political contestations (as ex-DP Riggy G can attest). All that she is left with is a strong desire to be seen to do something, anything, even if it means publicity that is inexplicable and confusing.

Even the most dull-witted and uniformed Kenyan knows the case of Roe v Wade. A few of the more ambitious among us can give a solid explanation of the holding in Giella v Cassman Brown. Heck, I was in Nanyuki in May and one of the nicer servers at the hotel I was staying in had very strong opinions on the Muruatetu Case. Despite Willy Mutunga's real estate shenanigans, his Supreme Court set precedents that we shall cite for decades. The current Supreme Court, alas, will be reduced to PR as it waits for a real case to come before it. And that is its tragedy: it is seeking the chance to be a consequential court and in its desires, it is making mistakes that will cost the Court its legitimacy in the long run.

William Shakespeare remains the source of many, many quotable quotes. This one from Twelfth Night is apposite: Some are born great, some achieve greatness, and others have greatness thrust upon them. The Koome Court was not born great. It can only hope to achieve greatness if it steels itself against the temptation to seek greatness in the political wilderness. But it is mistaken if it thinks that Kenyans, and the politicians Kenyans have elected, will thrust greatness upon it. The PR stunts of the past week are not the way to achieve greatness.

Kenya is not the Occupied Palestinian Territories

When the British arrested the men they accused of being the leadership of Mau Mau in 1952, imposed a state of emergency over Kenya Colony, and waged a brutal campaign against Kenyans, there is no doubt in my mind that what Kenyans did to resist the British crimes was not just justified by also morally right. The Kenyan collaborators who were murdered deserved to be killed; after all, because of their actions, Kenyans had been killed in sometimes very heinous ways. The resistance by the Palestinian people against the crime of the Israeli Occupation Forces, including the targeting and killing of Israeli civilians, is justified and morally right.

Any person who tries to compare the corrupt edifices of the Kenyan state to the British colonial government or the Israeli occupation of the Palestinian Territories is not a serious person. I understand how decades of frustration have led to many Kenyans, in their despair, to seek the short cut of murder, violence, mayhem and chaos. In my opinion, they are wrong.

Kenya has had two false starts in the past twenty five years: in December 2002, when Mwai Kibaki was elected as president, and in August 2010 when Kenya promulgated a new constitution. The Kibaki regime made many positive strides towards rebuilding the institutions of government but just as equally, swiftly reversed those gains and supercharged the corruption of the state to unforeseen levels. It was no longer grand corruption; it had morphed into grand looting.

The date of the promulgation of the Constitution - the 27th August, 2010 - was the last time that the new constitutional order was respected, defended, upheld and protected by anyone of consequence in the government. The past fourteen years have seen dedicated efforts, sometimes at the highest levels, to ensure that the values and principles of the constitution have been undermined, subverted and desecrated. Because of these anti-constitutional efforts, fewer and fewer Kenyans have faith in the institutions of government to deal with the entrenched culture of corruption and impunity, whether it is in Parliament, the Judiciary or the executive at both national and county levels. Today, more and more Kenyans have concluded that only the capital execution of the corrupt is the solution. They are no longer interested in the hard work of building, sustaining and nurturing state institutions.

To justify their position, the kill-the-corrupt forces point to the the knock-on effects of corruption from lack of life-saving medications in hospitals to the poorly-designed public infrastructure that lead to the deaths of Kenyans. Some have even go so far as to suggest that the regular Chinese government's habit of executing hordes of corrupt public officials after short show trials may just be the way for Kenya to go. What these people ignore is that so long as they keep the structures of the government unchanged, killing civil servants and politicians will not stop, or slow down, corruption in the government.

Kenyans' suffering because of the corruption of Kenya's public officials is not remotely the same as the destruction of the Palestinian people at the hands of the Israeli Occupation Forces. One is the natural outcome of a disaffected population that is disinterested in national building. The other is the natural outcome of colonialism and racial apartheid. The solution to the former is the reintegration of the people in national building. The solution to the latter is armed resistance. It would pay if Kenyans understood the difference.