Just like in 2017, when the presidential election results had to be decided at the Supreme Court, this year’s was not any different. The similarities did not end there: The final court judgments were met with angst, insults and threats towards the Supreme Court and its judges.
The culture of attacking the courts is not only irresponsible but a dangerous trend that needs to be nipped in the bud now before the judges and the judicial system come under even deadlier attacks, including loss of lives.
Even more troubling is the fact that the attacks are led by senior lawyers and politicians—two groups that should have a better understanding of the role of the courts and what separation of powers means.
Attacks on the courts should really have ceased after the alleged assassination attempts on one of the Supreme Court judges prior to the 2017 elections. .. an act that was clearly set up to intimidate the judges. The behaviour of intimidating, threatening and even ridiculing judges is barbaric and reeks of impunity. These are things only witnessed in a lawless society. It is behaviour that’s even dying out in Sicily, which used to be the Mafia capital of the world. A decent society cannot be built on a foundation of impunity.
As the apex court in the land, the Supreme Court is there to not only rule on cases based on facts but also ensure that the credibility and legitimacy of the Constitution remains intact. It’s given the final say on matters of national importance such as those of the presidential election petition because any wrong decision could easily tip the country over the cliff. And we should know, as bad or unpopular presidential results nearly engulfed the country in flames during the post-election violence of 2007/2008, in which over 1,000 people were killed and many more uprooted from their homes.
Senior lawyers and politicians, who were recently aggrieved, were crying foul on political grounds rather than sound legal reasoning. They had taken sides and somehow felt entitled to the results going their way. However, only impunity-leaning individuals would think that way. But then, the court does not work on whims or party loyalties. It must be guided by the law and the facts within the evidence provided.
As many in Kenya now know, some of the evidence presented before the Supreme Court was found to be riddled with inaccuracies and forgeries. Which part of that did the quasi-politician-cum-lawyer counsel of the complainants not understand?
If documents have inaccuracies or are forged, it means they did not meet the evidential threshold. In the latest presidential election petition, they were also heavily laden with criminal elements. Those complaining should be grateful their compatriots are not facing criminal charges over that. Any other mwananchi would have been facing the music for perjury.
Another aspect of the Supreme Court judgment that came under attack was the language used by the judges. This was snobbery from most of the old-school lawyers still hung up on Latin. In my school of thought, no legal judgment or medical report should be written in a language that a lay person—anybody who is not conversant with the legal or medical jargon—cannot understand. Latin is pretty much a dead language and it is time we did away with it—as the un African judges’ wigs.
It was also great to see more judges appointed to bolster the work of the Judiciary. It’s a welcome move.
The next step should be focused on lawyers who use big and unnecessary words in the courtroom, more to bamboozle than to herald any new legal jurisprudence.
Most of the so-called senior lawyers win cases not by sticking to the law but by the use of threats, bribes, social media attacks and ‘big-speak’ (read hot air).
Law Society of Kenya should rein in its lawyers to create a fairer court process. Justice should never be allowed to go the way of the loudest and the most crooked.
Conflict of interest
The era of politicians moonlighting as lawyers must also come to a screeching stop, owing to the conflict of interest. They muddy the waters when it comes to justice. In the recent presidential petition, Azimio la Umoja lawyers were mostly politicians. They were not in court in pursuit of justice but to save their political party. If they had won based on false evidence, it would have been a miscarriage of justice.
The same goes for any other political party risking the use of false evidence in court. Hence the need for the Supreme Court to arbitrate with a view to sifting through the evidence for facts and justice.
The appropriate mechanism of complaints against judges has been established within the Judicial Service Commission (JSC). It was incumbent on the losing party, their lawyers and supporters to follow the official complaints procedure within JSC than run riot on social media to attack the Supreme Court.
Social media is not the right place for the aggrieved parties to discuss legal matters that are or have been in court. It’s akin to knocking one’s head against a virtual wall.
Ms Guyo is a legal researcher. [email protected] @kdiguyo