- One was the open and personal defiance of a court order by the Deputy President following an eviction notice in Nakuru.
- The second is the Supreme Court decision on the right of the LGBTIQA+ to associate.
Image: FILE
I write this article in my capacity as a holder of the Office of the Former CJ which is a public office created by an Act of Parliament.
Two events in the last month have brought into sharp focus the role of the Judiciary in the adjudication of controversial disputes in Kenya’s fledging social and political environment; and the question of appropriateness, tone, and tenor in responding to judicial decisions.
One was the open and personal defiance of a court order by the Deputy President following an eviction notice in Nakuru.
The second is the Supreme Court decision on the right of the LGBTIQA+ to associate.
In both cases, the courts made decisions based on matters that were brought before them.
And in both cases, there were sharp disagreements with the outcomes.
For Nakuru, the second most powerful man in the country demurred in a remarkably performative but unfortunate manner, which signals the regime’s emerging disdain for the rule of law, in spite of its loud proclamations to the contrary.
In the LGBTIQA+ case, large sections of the population - led by the president, select parliamentarians, and the Faith-based organizations- led the condemnation of the courts, sometimes in language so salty that beggared belief.
In the broader public sphere, the Judiciary must be robustly criticized when it errs – and comprehensively critiqued once it delivers its decisions.
But I think this should be done with an intention that illuminates the subject rather than in a manner that diminishes the institution and also conducted in a way that permits a civil discourse on issues we passionately disagree about.
Within the narrow judicial sphere, decisions that we find discomfort with should be subjected to review, appeal, or revisions - as the case may be.
The loud sirens of insults and personalized attacks against judges cumulatively corrode and erode the standing and legitimacy of institutions, with the resultant effect that makes all of us the losers in the long run.
This is because the independence, respect, and integrity of the Judiciary are vital to the effective functioning of the Judiciary in a democratic polity.
This bundle of values constitutes a triad of judicial qualities necessary for the realization of the rule of law.
There is no doubt that they must flow from both within the Judiciary, and from without.
On the one hand, for Judicial officers, it is the rigour of their legal analysis and determinations, and the depth of their integrity, that imbue the institution with these attributes.
On the other hand, for State Officers, Faith leaders, and the general members of the public it is the tone of the tenor of their critiques and commentary on the Judiciary and its judgments that either clothe or strip the institution of these qualities.
Our Judiciary must remain a temple of justice; a place where we all take refuge when our rights are under attack. It is our place we take our disputes to and seek justice.
Our Constitution has a vision of a judiciary that is independent, has integrity, and that is also financially independent.
Our Constitution addresses an institution that during colonial and post-colonial times was captured and enslaved by various economic, social, religious, and political forces both within and without the country.
The Judiciary itself then was not minded to challenge these forces.
During the colonial period, the Judiciary was annexed to the Office of the Attorney General.
This historical background is important because it informs the vision of our Constitution.
We, the People of Kenya
The Judiciary derives its sovereign power from the people of Kenya.
That delegation of power makes it clear that the people are actually the sovereign judges, judicial officers, and staff.
Fundamentally, this means the people have to protect, defend, and uphold the independence of the Judiciary so that their temple of justice is not desecrated by forces that seek to enslave it.
The Constitution also makes it clear that court decisions must be obeyed and that disobeying them is the subversion and the overthrow of the Constitution.
The Judiciary, therefore, protects the people from forces that would violate their rights.
The Judiciary is a site, a base, where citizens can seek refuge when under attack. It is also a vision of the Constitution that formal and informal judicial systems are integrated so that there is access to justice for all.
What we call African Justice Systems are upheld, defended, and protected by the Constitution.
Since 95% of Kenyans go to these various fora for the administration of justice our Constitution expects seamless integration of both systems so that the country has temples of justice everywhere.
The people of Kenya are the mainstay of justice under our Constitution.
Forces Raining Blows on the Judiciary
This vision of the Constitution could not be more important than now when certain forces in society, political and religious seem to take great pleasure in raining blows on the Judiciary whenever it renders decisions that they do not like.
These actions are dangerous because they also diminish the respect and confidence Kenyans have in the Judiciary.
Both religious and political formations have a huge following and they are great threats to the independence of the Judiciary if their political and religious power is unleashed upon the Judiciary and other institutions.
It is precisely religious and political powers that need to respect, uphold, and defend the independence of the Judiciary.
Particularly politicians need an independent Judiciary more because politics of revenge abound and the only refuge open for those on the run is the Judiciary.
The legal profession must stand up and uphold, protect, and defend the independence of the Judiciary.
It is not without reason that we are called officers of the court.
We are not appendages of our client’s interests.
Under no circumstances should we join other forces that use the Judiciary as a boxing bag.
It always pains me when I see and hears members of the bar join in unwarranted attacks on the Judiciary yet this is not only their temple of justice but a site where they display and sell their wares!
The Judiciary does go about hawking for cases to come to it.
It is the citizens of Kenya who go there to seek justice.
Judges and judicial officers are the interpreters of the Constitution and they have to make decisions.
Because of the divisions in this country that are ethnic, racial, religious, regional, generational, gender, clan, and class decisions of the judges and judicial officers cannot have a national consensus on the result.
Indeed, in this country, the wisdom of Solomon does not exist and it is not allowed to be nurtured.
Until we understand our Constitution’s vision of an indivisible sovereign nation in which we are proud of our ethnic, cultural and religious diversity, our values and principles of governance, and our promise of democracy we shall not respect, defend, or uphold the independence of our Judiciary.
This must be our struggle going forward.
Let us Reason Together
Decisions by the Judiciary should not divide us. They should make our dialogue and reason together.
It does not mean we do not criticize these decisions. We must because we have delegated sovereign power to the Judiciary.
We are the sovereign Judiciary, Executive, Parliament and all other centres of political, security, and military power.
The decisions by judges and judicial officers provide an excellent opportunity to debate and seek consensus among issues that are “controversial” such as presidential election petitions and matters of gender and sexuality.
As we reason together we must listen and hear all voices.
Let us understand that our Constitution has the most progressive vision of the creation of a democratic secular state and society.
We can build such a state and society and be a beacon of peace and progress for the world which is torn up by religious divisions.
Indeed, we need the Constitution next to our Holy Books.
I advise that as we read and follow Prophet Isaiah’s advice that we come together and reason together. We also read Article 32 of the Constitution which decrees as follows:
32 (1) Every person has the right to freedom of conscience, religion, thought, belief and opinion;
32(4) A person shall not be compelled to act or engage in any act, that is contrary to the person’s belief or religion
This article read with the Preamble on our diversities is the mother of the vision of the many Gods of the Constitution that exist in Kenya, including the African religions.
It is also the mother of atheists, agnostics, humanists, syncretists, and devil worshippers.
Let us build our democratic secular state and society and teach the world that our religions and beliefs co-exist for peace, equity, and prosperity.
*Willy Mutunga was Chief Justice & President of the Supreme Court, from 2011-2016.