A gavel.
The law is an ass, an idiot. Those infamous words were written by the British writer Charles Dickens in his epic book Oliver Twist. Although he wasn’t referring to human anatomy, Dickens might as well have explicitly done so. That’s because often the law can be as repugnant as the implied body part.
Imagine the 1857 US Supreme Court decision in Dred Scott vs Sandford declaring that the American Constitution didn’t give persons of Black African descent citizenship conferred on other Americans. The high court held that as an enslaved person, Mr Scott was “property” and not a citizen with the right to sue in federal court. If the law isn’t an ass, then I don’t know what it is.
Judges and lawyers want you to believe the law is a neutral arbiter and adjudicator of competing claims and interests of opposing parties.
Even worse, law professors – who should know better – often teach their students this blatant lie. Unlike judges and lawyers, law professors aren’t supposed to be legal mechanics. Their purpose in society is to think critically about the law and its purpose and in so doing give intellectual guidance to the more earthly and practical parts of the legal profession such as judiciary and the bar. I am not implying any hierarchy here within the legal profession. No – just noting the obvious segmentation of the profession into niches. Professors teach. Judges and lawyers apply the law.
The rule of law
Of course, it’s important for the practitioners of the law to want to make you believe that what they do is neutral, unbiased, and by the book. Because if you don’t, you might as well “take the law into your hands,” and jettison the rule of law. Imagine a society in which judges and lawyers were defrocked and exposed as partisan hacks no better than the drunk who fulminates and pontificates nonsense in the local pub. We saw that recently when Justice Samuel Alito was secretly recorded and exposed as a rabid partisan by a liberal activist. Truth is that Justice Alito – like all other justices of the US Supreme Court – has always been a biased, political partisan.
This has been true since time immemorial. For me, it wasn’t news. The defrocking of Justice Alito was akin to a parent finally explaining how babies are made to a child. If you shed the notion of shame, or saying the unspeakable, then the truth sets you free. There is nothing about judges as individuals that can assure us they don’t read legal documents and interpret them through their moral and political lenses. That’s why in most cases we can predict how a court will rule based on the ideological orientation and moral proclivities of the judges. Judges who were picked by Donald Trump will rule one way while those picked by Barack Obama and Joe Biden will rule another.
First, understand that law-making is a political process. I am talking about both legislation and administrative law. Legislation is a result of a bargaining process if there’s a split legislature. If one party dominates the legislature, then it can damn well pass any laws it cares to enact.
Outlaw multipartyism
It was even more nakedly done in the era of the one-party state when the legislature was nothing but a rubber stamp. The head of state would instruct the mandarins of his party to jam down the throat of the country the laws he preferred. I vividly remember when Mwai Kibaki and others introduced Section 2A of the Constitution to outlaw multipartyism. That was politics which then bound judges.
Second, while law-making is akin to making sausages, the process of picking judges and magistrates is highly political. That’s why there’s always a circus in Kenya, or the United States, for that matter, when a president picks a nominee for the high court. In Kenya, the Judicial Service Commission itself has always been a hopelessly political and corrupt instrumentality. So their nominees are tainted fruits of a poisoned tree. The JSC is totally opaque.
The public doesn’t know how they score nominees before it, or how each commissioner scores a candidate. This opacity allows the complete politicisation of the process and iron-clad unaccountability. I sued for disclosure of my own scores as a Chief Justice candidate in 2016. The courts filibustered the suit.
Lastly, it’s fact that if judges aren’t corrupt, then their undeveloped sense of justice dwarfs their rulings. That’s why Kenya doesn’t have many landmark jurisprudential opinions. Some judges aren’t interested in the law let alone taming their own biases. I end where I started.
I am not looking for saints to sit on Kenya’s courts. They don’t exist. I am, however, looking for individuals who are self-aware and who understand that law is politics when they sit on the bench. This self-awareness will allow them to reduce, or mitigate, the law’s idiocy so that its less of an ass.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.
