It was supposed to be a dark day; after all, popular myth has it that Friday 13 is ill-luck personified. But by the end of January 13, 2012, Kenyans had found at least three reasons to be optimistic about their future: All due to events related to the judiciary. The first lesson: Do not 'slap Wanjiku' - Those reported or deemed to be engaged in conduct that 'slaps Wanjiku' are inviting upon themselves large slices of trouble.
The decision by the Judicial Service Commission to recommend the suspension of Deputy Chief Justice Nancy Baraza and send a petition to the President to establish a tribunal to investigate her conduct over a reported gun incident at the Village Market shopping mall sent a clear literal and metaphorical message: Public institutions and processes are properly equipped to protect the rights and dignity of even the most ordinary of us. One should be quick to note that Deputy Chief Justice Baraza is still, at this point, innocent until proved guilty.
The point, however, is that the implementation and enforcement of the new constitution signals a massive tectonic shift with regard to the willingness and ability of public institutions to ensure the protection of the dignity and rights of the mwananchi. Kenya is currently – and historically has been – populated by two classes: the wenyenchi or real owners of the power and wealth (who do not number more than the digits on one’s hands and toes) and the wananchi who happen to be rest of us (sometimes referred to by the wenyenchi as watu). Since its inception, Kenya has not had a history of protecting the wananchi from the privations and excesses of the wenyenchi.
When a statement has to be made against land grabbing, why is it that we target those in the slums and not, say, the riparian areas around Spring Valley? When a statement needs to be made about law enforcement, why is it that it is only the hoi polloi who get shot dead while those who have frittered billions of shillings through corruption and financial mismanagement are still sitting pretty and enjoying their ill-gotten wealth? Why is it that when it came to evicting the “forest grabbers” in the Mau Forest, only the ordinary peasants were evicted while those sitting on the really large, prime properties carved out of that forest are quietly continuing in their possession?
Now, however, the Judicial Service Commission is boldly saying that there is a fresh “wind of change”. A new battlefront has been opened to bring to book those who engage directly in the murder, raping, dispossession and depredation of the socially downtrodden. Whether it will last is another question, for now we must welcome the fresh breath of air that has accompanied this new position.
That is at the literal level. At the metaphorical level, it means that those who occupy high office and conduct themselves in a manner that “slaps Wanjiku” may be in for turbulent times. For the new position is that public institutions may just not anymore be prepared to look the other way when the wenyenchi steal, plunder and loot public resources with impunity. Again, we can debate how long this position will hold but isn’t it simply refreshing?
Related to this is the second lesson: the judiciary has finally newly discovered its spine. It was obvious that the decision of the Judicial Service Commission to take action against the Deputy Chief Justice would require some real mettle – and they showed they had it. One can see with the amount of ethnic mobilisation currently taking place in defense of Baraza (and indeed unhelpfully so) that there would be real political consequences following such a decision.
But the decision on the same day of Justices Isaac Lenaola, Mumbi Ngugi and David Majanja on the date of the next elections was also, in my view, groundbreaking. They did not hide behind technicalities, they did not engage in “legalese” to avoid making a call based on the substance of the issues raised in the case. Instead, they boldly waded into the mud of the contesting positions, thoughtfully grappled with them and came up with their own considered position – and, however incorrect some may think it was they must be applauded for it.
Lest we forget – there was a time not too long ago when the judiciary endeared itself to escaping from making such rulings by finding a technicality to hide behind. So if, for instance, there was a presidential petition that seemed to contain substantial grounds to challenge the election of the sitting head of state, it was dismissed because that head of state had not been “personally served” – despite the fact that it was not humanly possible to get through the elaborate security arrangements protecting the head of state.
If there was a human rights application before the court that would unmask and hold accountable those state institutions that propped up authoritarian rule, it was easier for the judiciary to simply hold that the Bill of Rights under the constitution was inoperable. Or when the late Wangari Muta Maathai went to court to challenge the planned excision of Uhuru Park for the construction of a 60-storey shopping and office complex owned by the former ruling party Kanu, she was told she had no locus standi. And so on, ad nauseum.
Lesson three: An 'outsider' can run a state institution. Dr Willy Mutunga’s exemplary legal pedigree did not include any experience of being a judge leave alone running an abject and battered judiciary. Yet, look objectively at what has happened since he ascended to the office of the Chief Justice. There are arguments that the Inspector General of the Police must be appointed from within the force because he or she must be knowledgeable in the “science” of policing.
This seems an imminently reasonable argument save for two points. First, has any Kenyan Commissioner of Police been appointed because of his expertise in the “science” of policing? I hear an argument that one does not right a wrong by engaging in another wrong. So here is the second point: is the CEO of the Nation Media Group a journalist? Is the CEO of East African Breweries a brewer? Is the CEO of Mater Hospital a doctor?
The point is this: using criteria that can measure integrity, good judgment, leadership abilities, some knowledge of what the problem with policing in Kenya is and commitment to reforms, an outsider can ably lead the police force out of its current malignant drudgery. If you don’t believe me here is a case in point: Teddy Roosevelt who later became the President of the United States of America was one of the most successful police leaders in New York City. He originated from the business world.
Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA