Chief Justice Dr. Willy Mutunga is once again having some of us scratching our heads by what he is saying or more precisely, how is going about saying it.
While no one can disagree with what the CJ is saying about ministers upholding the constitution or resigning, I find it wholly wanting that he has seen it fit to do so in a manner that appears and can, in fact, be said be an injection of himself and our courts into politics which is as bad as having no independent judiciary to begin with; of what difference is it if the CJ is another politician?
Would this not lead us to yet another era of blurred or no distinction between the politicians and the robed ones who are supposed to make sure the politicians are put in check and respect the law?
It would be prudent for our CJ to use the powers of his office and court to implement real change in the judiciary and rule of law in Kenya, not the media for if he chooses the latter as his primary vehicle, the politicians, especially those who would prefer status quo would reduce him to ridicule in no time and before one blinks, the court will be held to the same low esteem it’s been rather than bringing itself above politics and establishing itself as a noble place of awe and respect.
I am not here suggesting that the CJ should keep quiet and not say a word outside the bench or his chambers; far from it.
What I am suggesting is, the CJ should be selective and make public utterances outside his traditional avenues, namely, outside of court opinions and decisions only when it’s necessary to do so to explain the court’s judicial philosophy or policies but not politics.
The role of the court and judges in society is to interpret and apply the law made by politicians with minimal political considerations and an example of the latter would be such as the Al Bashir issue in which case I have suggested Kenyan courts should defer to the Executive on the basis of the “political question” or “unjusticiability” doctrines both of which hold there are certain issues better left for the politicians to resolve in the national interest.
The CJ will, in fact, accomplish and be more effective in both laying a firm foundation for the new court and effecting the desired reforms in the judiciary by simply focusing on carrying out the reforms, while ensuring that the court renders sound, well-reasoned decisions and opinions grounded in the constitution which would speak volumes and go far in reforming the judiciary than what the CJ can say in the media.
As the saying goes, sometimes actions speak louder than words and therein lies the conundrum in that the CJ feels compelled to say something about the court’s independence because, I assume, he believes if he doesn’t, the politicians will tramp all over it but this need not be.
Although one can assume there are some politicians out there who might still be living in the past in believing the new court and others can be manipulated or dictated to by the Executive, this is just not possible anymore and the CJ need not even say that; let them try to and he can easily show them who the CJ and the new court is in the new political order but there need not be a public showdown for that.
In sum, the CJ and the new court has a lot of goodwill more akin to the goodwill Kibaki was given in 2002.
Let the CJ not squander the goodwill to the detriment of Kenyans and the best way to do that, is to get more busy reforming the judiciary and not giving speeches and lectures on obvious matters it doesn’t need a CJ to tell us as even a simple Press Release by the court’s PR person can do the same thing while leaving the CJ above politics.
I know the CJ means good and has good intentions but he needs to understand being a CJ is unlike any position in government in that the less the politics in it, the better and not vice versa.