The Judiciary is not infallible. Nobody can deny the obvious fact that Kenya has had more than its fair share of judges who are known only for being corrupt, lazy and incompetent and hostage to ethnic, political, sectarian, religious and other loyalties.
A quick glance down the ‘Judicial Hall of Shame’ will reveal the likes of Justices William Tuiyot and Norbury Dugdale and Chief Justices Cecil Miller, Bernard Chunga and Zacchaeus Chesoni in the long list of those who gained notoriety for desecrating the corridors of justice.
Such fellows existed in a dark and shameful past, but that does not mean their likes cannot emerge in the judiciary of today. That is why the most rigorous mechanisms are required to ensure that unsuitable characters are never appointed to judicial office. Likewise, those in service who show tendencies towards incompetence, corruption or unhealthy associations must be swiftly exposed and removed.
Old-fashioned strictures against public criticism of judges and their rulings have been relaxed, with open scrutiny and debate now the norm in modern jurisdictions. Whether in legal conferences, newspaper Op-Eds or scholarly journals, open discussion of court rulings and the officers involved contributes to the transparency vital to accountability within the judicial system.
However, that does not mean the door is open for every angry politician or aggrieved litigant to launch campaigns of intimidation and slander against judges.
A working judiciary that is jealously protected from external pressure is the hallmark of democracy. As a key and equal arm of government, the Judiciary must be insulated from threats and intimidation from the political classes that make up the Executive and Legislative arms.
Unwarranted and unrestrained attacks on the Judiciary carry threats not only to constitutionalism and rule of law but also democracy itself. This is how President Uhuru Kenyatta’s recent comments on the Judiciary must be viewed. In his Madaraka Day speech and during the recent swearing-in of judges, he came out critical of the High Court ruling which has stymied his Building Bridges Initiative (BBI) project.
Even as we agree that courts are not infallible and must be subject to public scrutiny, it is an entirely different proposition when criticism comes from the head of another arm of government and carries with it the threat of punishment or retribution.
Dissatisfied with a court ruling
It is particularly worrying when these threats — whether against the Judiciary as a whole or individual judges — come from a litigant or otherwise interested party dissatisfied with a court ruling and still pursuing an appeal. In that regard, President Kenyatta is out of order. He is misusing his position to browbeat the courts on a matter where has a direct interest.
While he is couching his intervention on what he reckons is the public good and the bigger picture of the pursuit of reform towards a more just society, President Kenyatta is following the well-trodden path of the messianic self-righteous dictator.
From Nero to Adolf Hitler to Emperor Bokassa, Idi Amin and Donald Trump, history is replete with tyrants who claim primacy over established systems and justify every outrage with claims that whatever they do is for the good of the people and the country.
Unlike many of his critics, I do not believe that Uhuru Kenyatta wants to be dictator, or that he aims at subverting the constitutional order to extend his rule. I am convinced that, come the General Elections of August next year, he will be happy to have served out his second and final term and, therefore, retreat to enjoy private life free of the burdens of office.
However, so many of his actions today serve only to lend credence to fears that President Kenyatta does not intend to go quietly. Constant criticism of the Judiciary, selective appointment of judges to leave out legitimate nominees while citing phantom intelligence reports never shared with the vetting board, serial disobedience of court orders and increasing insertion of the military in civil affairs all send worrying signals.
The President needs to take a step back and review some of his recent actions. He must remember that he will not be in power forever and, therefore, every injustice he sanctions will revisit him in years to come.
And we have many — including those in the Jubilee Party internal opposition headed by Deputy President William Ruto — who, when enjoying the trappings of power, cheered dictatorship, police brutality and contempt for the Judiciary. They are now the ones crying the loudest for protection from the same dictatorial systems that they promoted.
President Kenyatta will be in that same position next year if he is not careful.