In the past, when judges were denied security of tenure by the dictatorship, fighters for freedom and justice said no at great cost to themselves. When Judges were subjected to the whims and dictation of the one-man dictatorship, again, freedom fighters said no.
When judges were transformed into ugly tools of terrorising the people, lovers of justice said no.
And recently, when an angry President Uhuru Kenyatta threatened the Supreme Court judges, those who believe we cannot live without an independent Judiciary said no. Equally, when Parliament slashed judicial budget from Sh31 billion sought to Sh14 billion greatly to stymie development of the court system, democrats said no.
Judiciary has not been an orphan without support in Kenya, nor has it been without reason to advocate democracy and the rule of law. Indeed, Judiciary is integral to democratic rule of the three arms of government. When it is threatened either by the Executive or Parliament, the people have stood for democracy to defend the Judiciary. And when Parliament has been threatened by dictatorship of one-party dictatorship, again, the people have done the same.
Cardinal rules of democracy are that the people are governed by law not man, they are equal before law and no person, however high and mighty, is above the law. And neither are judges above the law nor exempt from prosecution when they commit crime.
If the president and Cabinet secretaries should be prosecuted when they commit crime, shouldn’t the judges be charged when they transgress the law? When governors are subject to the rule of law when they have sought impunity from prosecution, judges, too, should not be above the law and must be prosecuted when they commit crimes. It beats logic that judges are dispensers of justice but evade law when they are in the wrong.
Just as ordinary people are prosecuted, regardless of their profession and community, the judges must also be prosecuted when they commit crimes, despite their profession, community, gender or age. And nobody should subvert this principle, which is a condition for justice.
Because the principle of equality before law is supreme and must be protected by the rule of law, when judicial officers commit crimes, not even Judicial Service Commission or their high rank should protect them against prosecution in pursuance of justice.
These principles of law and democracy should be well known to everybody but more so to those of legal profession – judges and lawyers who seem to think justice can be sacrificed at the altar of judicial profession, high rank and money.
When Deputy Chief Justice Philomena Mwilu — against whom I have no personal grudge — was arrested over corruption, a crime that whole nation has agreed to fight, it was shocking to hear arguments that judges cannot be prosecuted for crime while still in office. That they can only be taken before Judicial Service Commission – where she is a member that will be protected by her peers – and not to an ordinary court, where she is deemed to suffer “humiliation and embarrassment unbefitting her rank and profession”.
Failure to prosecute in that case is a clear violation of the rule of law that judges and lawyers should protect rather than violate. Who then shall protect rule of law when they violate it?
When lawyers flock to court to protect one of their own, not because of his or her just cause – as in the struggle for the Second Liberation but to defend graft – it is likely the defense sought is for self, not judge. Indeed, corrupt judges and lawyers have a reason to fear when their friends are arrested. They could be telling them: “If they come for me in morning, they will come for you in the night” – Angela Davis.