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.
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