Appeal Court president William Ouko on Wednesday said tribalism is a dangerous disease that even afflicts the Judicial Service Commission, but there's no clear cure.
The JSC later nominated him to be a Supreme Court justice and forwarded his name to President Uhuru Kenyatta. He is considered a progressive.
“Diversity, ethnicity, it's our turn to eat is a very dangerous disease...I really don’t have a prescription. All I know is that we are very deeply tribal, even in this commission," he said.
Ouko made the remarks while answering questions during interviews for the position of Supreme Court Judge. He was answering questions from commissioner Felix Koskei who asked what can be done to remedy tribalism and people wanting one of "their own" to be hired.
He said he doesn't have a remedy he can recommend to the JSC.
He appealed for support for the Judiciary from other arms of government to enable it to function at optimum level.
The Judiciary, he said, is held back because of the way it is treated and for all the three arms of government to be able to work together and achieve there has to be equity.
He cited parity in budget allocations, noting when Parliament gets Sh37 billion, the Judiciary gets Sh17 billion, which means they are unequal in status.
Judge Ouko said the support needed for the Judiciary is not only financial, saying that currently due to lack of judges, the Court of Appeal cannot function to it optimum.
He also suggested that Supreme Court needs to review its performance and discuss the perception of corruption allegations against it.
Judge Ouko said judges need to sit down an talk to see where are the gaps that have led members of the pubic to believe they are on the take.
In his view, if there were cases of real corruption other than perception, the Ethics and Anti-Corruption Commission would have already stepped in. He said most of the perception is due to claims made when people lose cases.
“The work judges do cannot be equated to football matches because there is no draw as there will always be a loser and a winner. Losers will always look for excuses. There has never been a specific case because we would have people before the EACC and courts,” he said.
The judge said there has been criticism of the jurisprudence in the Supreme Court, some describing it as untidy, though, he said most decisions are well-reasoned.
He emphasised the need for introspection 10 years since its inception, saying it is important given that its decisions are binding on lower courts.
“It must be seen to give very clear instructions to lower courts," Ouko said.
He said he is disturbed by the immoderate language sometimes used in dissenting opinions of the Supreme Court, which he said should change.
Ouko cited the example of a dissenting opinion in which a judge, whom he did not name, referred to the majority decision as "ridiculous".
“You can’t use words such as 'ridiculous' to describe majority decisions in your dissent. That's an area I will hope to change, we need to tone down the language,” he said.
He assured the JSC that he doesn’t have a problem supporting the CJ nominee because they have had a good working relationship at the Appeal Court.
If given the chance to become a Supreme Court judge, Ouko said he will strive to reduce the backlog of cases so that the court operates more closely to real time.
(Edited by V. Graham)
