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Why Its Wrong For Chief Justice Willy Mutunga To Attend Miguna Miguna’s Book Launch

27 Jun

Supreme Court of Kenya

According to the Standard, Chief Justice Willy Mutunga is scheduled to appear as guest of honor in the launching of the controversial Miguna Miguna’s book on July 14, 2012.

Regardless of where anyone stands on the political divide in Kenya or who they support in the Kibaki succession politics, all Kenyans must be united in loudly telling Chief Justice Mutunga that being a guest of honor in this book launch for Miguna is wrong.

There are many reasons why this is so but one is sufficient in by itself to have the Chief Justice rethink, if he is committed to attending this event, and that is, gracing the event is not worth the honor and dignity by the person holding the high office he does.

This is because even though theoretically a co-equal branch of government with the legislative and executive branches under the new political dispensation, we have a greater expectation and requirement that our Chief Justice be at all times above politics.

This expectation and requirement does not mean that our Chief Justice must be politically aloof or blind to the goings on politically; quite the contrary, he or she must remain informed about the politics of the day lest he or she will not effectively and fairly execute the full responsibilities of the office.

It also doesn’t mean that the holder of that office cannot express themselves politically outside of their official role if they must but it does mean if they do so it must be done such that it does not evince bias or a tainted judicial mind, let alone even the appearance of impropriety.

That is also not to say the Chief Justice cannot allow politics to creep into his judicial philosophy, if it hasn’t already.

However, the reason we insist on having only the best among those with sterling credentials and reputation to serve as Chief Justice is because there is an expectation that individuals like that would and must separate themselves from the politics of the day and instead draw from their judicial prowess, if any, knowledge of the law or wisdom and judiciously and fairly apply the law to the facts and render the right verdict on any given issue.

In other words, our Chief Justice and the rest of the judiciary for that matter must always avoid political controversies unless in the context of rendering an opinion in resolving an issue at hand.

Indeed, in countries such as the United States, the highest court of the land there has long held and, it is in fact, the case that courts must stay away from deciding “political questions,” which means staying away from deciding issues that are strictly political in nature and are best resolved by the legislative and executive branches of the government, not the courts.

Given the judiciary in Kenya has been nothing but an extension of the presidency for decades until now, we are nonetheless a long way from reaching a point where the courts can leave it up to the legislature and executive branches to resolve issues because they are too political.

This is more so the reason why the Chief Justice and the rest of the court must remain above politics even when considering questions that are political in nature.

There cannot be a more flagrant violation of this principle than what the Chief Justice is poised to do and that is being the guest of honor for Miguna in the launching of his book.

In fact, this whole thing sounds like a bad joke or publicity stunt neither the Chief Justice nor anyone serious can possibly wish to be a part of.

This is because after being unceremoniously booted from the Prime Minister’s office as an advisor on coalition affairs, Miguna Miguna promised the world he has an ax to grind by way of a book he now plans to launch in the next two weeks or so.

There is nothing wrong about that at all; Miguna has a right like anyone else to publish anything he wishes to, provided it’s not slanderous or otherwise in violation of the law.

What is wrong is for the Chief Justice to grace his book launch with his presence, which is not merely Dr. Mutunga who is going to be in attendance, but the office he represents and that is the Supreme Court of Kenya.

There is not a single plausible reason the Chief Justice can advance worth exposing his own judgment and the office he holds to ridicule and condemnation in this manner.

Not one and if it is as it’s been advanced by others that it’s because the Chief Justice is good friends with Miguna whose friendship goes back to his post-graduate studies, that may be a great reason to join Miguna in a private party to celebrate the launch of his book but not to be the guest of honor at the official launch of the book with all its implications and impressions created rightly or misconstrued by having a person of his stature at such an event.

While the Chief Justice cannot advance a plausible reason why he would expend the goodwill he has and expose the neutrality of his office to at least suspect treatment henceforth, there are many other reasons why it’s a bad idea and wrong for the Chief Justice to go forward with this and leading them would be just a matter of answering a simple question; why would the Chief Justice basically endorse Miguna’s book and not Kimbo cooking fat or any other commercial product?

Is there any difference between the two in terms of keeping the office of the Chief Justice above reproach or ridicule, let alone the harsh criticism that is sure to follow over this basically trivial issue in the larger scheme of things?

Or, if you want to keep it at the book level, why would the Chief Justice endorse Miguna’s book and not books by others be they fictions, non-fictions or simply trash?

It is not as if Miguna is set to release a tome about things we don’t already know or of any value beyond being fodder to Raila’s haters and critics and if he does, in fact, “reveal” things heretofore unheard of or unknown, no one doubts they will be nothing but fiction cooked in his mind over these many months he has been brooding to get back at his former boss and likely our next president, Raila Amolo Odinga.

These are certainly cross-hairs the Chief Justice does not wish to find himself in for any reason, not even friendship for certain things are far more important than that friendship when it comes to matters of state and specifically the very office he holds as Chief Justice and President of the Supreme Court.

The Chief Justice was appointed from outside the judiciary specifically because it was believed he will bring the kind of freshness and untainted history to clean the judiciary but that does not mean he has free rein to ignore or tramp traditions and practices that have made judiciaries across the globe the venerable institutions they are and chief among that is simply staying above petty things such as lowering oneself to be used as a prop in launching a book that’s likely to be a flop as many others before which their peddlers promised so much only to offer nothing to write home about in the end.

To be sure, there are many hungry to devour every word in the book but no one who knows anything about these things seriously thinks Miguna is going to add anything to the political discourse beyond what is known and there certainly won’t be any “insights” into how the government works beyond what we know—or more precisely, beyond what anyone who follows these things closely will know.

In Chief Justice Willy Mutunga and the Judiciary Must Stay Above Politics, I noted the following:

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 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.

It is worth repeating this and hope the Chief Justice hears our plea to him to take this rare opportunity he has been given and help shape our judiciary in a manner all of us can be proud of and much to the benefit of our country.

At the time the court is poised to render important decisions that have far-reaching implications about our country’s future, the last thing the Chief Justice would want to do, is go mingle with Miguna Miguna at the InterContinental in the launch of a book many have already dismissed as nothing but an effort to get back at Raila for sacking him not any different than many a servant has been sacked.

Were Miguna not otherwise sacked and left the government on his own in efforts to disclose wrong-doing he had found while there, his book would not only be a roadmap to correct that wrong, the Intercontinental Hotel would be too small a venue to launch the book as everyone would be right there to give him support and applaud him for the job well done in penning the manual, if he was around and alive to witness the support.

This is not the case by far and given some of the things that have been leaked as earthshaking and a taste of things to come, my prediction is the launch and aftermath will only be rivaled in history by Mudavadi’s launch of his presidential bid under UDF after defecting from ODM and now many including him are wondering why.

I cannot fathom why Chief Justice would want his name mentioned together with such historical flops, especially arising out of this well-known background of controversy involving Miguna and the PM but if he does, he will have only but him to blame.

The collateral damage will be questions about his judgment that will linger long after the lights are out at the launch venue for the book and all garbage is dumped from the event if he, indeed, graces the event with his presence.

Let’s hope he doesn’t.

[Unedited]

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Posted by on June 27, 2012 in Law, Politics

 

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