JUDGING THE JUDGE

Kenyan judges don’t care whether people accept their justice or not

When old women such as my mother seek justice, they are not crying for for mercy or favour

In Summary

• We want to believe that every time our judges make a pronouncement or judgment, they are right and correct, but Kenyan judges are not always so.

• Justice cannot be said to be done if after the judge has read the judgment, you feel as if he or she has shouted to losers, “Mtado?”

Supreme Court judges on September 1, 2017
Supreme Court judges on September 1, 2017
Image: FILE

Most people who are passionate about justice many times will aver that “justice must not only be done but seen to be done.”

This judicial motto means, for people to accept justice, the right must not only be done, but contestants must also be convinced that it has indeed been done. It also means for justice to be acceptable, winners and losers in a case must accept that fairness has been done to all.

But justice cannot be said to be done if after the judge has read the judgment, you feel as if he or she has shouted to losers, “Mtado?” and your whole body, mind and soul have cried  “justice has not been done.”

 
 
 

Even winners must not feel that they have won the case courtesy of their mobilisation of bribes, ethnic, class, clan, gender, political and other forms of prejudice. 

We want to believe that every time our judges make a pronouncement or judgment, they are right and correct, but Kenyan judges are not always so. How can the same circumstances, same evidence, and same law have different outcomes for different persons?

Either people have no capacity to comprehend justice — though it can also be felt — or judges are like witch doctors whose language is deliberately incomprehensible to the intended beneficiaries of witchcraft.

Once we turn the Judiciary into witchcraft — whose outcome is pata potea (lottery) — its language will also be urogozi or incomprehensible. Justice must be comprehensible, predictable and applicable equally to all.

And cannot be seen to be done if people do not accept and embrace it. When my mother’s petition was recently dismissed by the Court of Appeal on technical grounds of filing it late, yet earlier than other cases that were judged favourably, my whole body shook with disagreement and disappointment.

I cannot help feeling that somebody somewhere wanted to use the dismissal of the case to break the old lady and hasten her demise. Guilty judges will, of course, argue justice is as blind to age as the Kenyan one is to fairness.

The case of the old lady was dismissed, not because it was discordant with the law and evidence, but because the Judiciary wanted to send a signal to the Executive that cases of torture inflicted during the one-party rule would no longer be tolerated, especially when judges are critical of the cruelties of the dictatorship to whom many owe their current places in the Judiciary.

 

Trying to save the presidency from embarrassment by successful cases of torture, a Chief Justice is said to have called a meeting of like-minded justices, some members of civil society and so-called opposition leaders to try and stop more cases of torture, by throwing out all cases of torture, however, just and merited.

But people with a sense of justice cannot have forgotten how mothers of political prisoners, including me, were beaten and brutalised by police in broad daylight. 

Who can believe judges when they claim mothers were never tortured at Freedom Corner or convince anybody that some mothers don’t deserve justice because it is now too late to claim it? Doesn’t the new Constitution say it can never be too late to claim remedies for torture and human rights violations?

Kenyans must learn to seek justice beyond the boundaries of time as they should also learn how to seek justice beyond the boundaries of their country.

For lack of confidence in our Judiciary, it is shameful that Mau Mau freedom fighters and victims of the Mathenge tree in counties such as Baringo had to take their cases to Britain and International Court of Justice, receiving the justice they could not get in our courts. 

 

A judgment that denies justice to an old lady of 90 years also inflicts cruel fate to a person who cannot afford to carry a cross with the express intention of first killing her and second, indicating to the rest of Judiciary that all cases of torture must be dismissed to entrench creeping dictatorship.

But the fight against Mum by a cruel judgment is not just a crusade against an old lady – to the shame of the Judiciary – but also declaring war against democracy that cannot grow without justice. While one side of the Judiciary is at war with justice, the other side must stand to be counted  whatever the cost.

When old women such as my mother seek justice, they are not crying for for mercy or favour, but a right they desrve. It is criminal for any court to deny anybody justice, which is a right not a priviledge.


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