Let Judiciary guard against making extra-judicial comments

By JASPER MBIUKI

Kenya circa 2012 is a Country fraught with divisions. Too many of our brothers and sisters subscribe first and foremost to ethnic, tribal or political groupings rather than placing Kenya in the position of highest esteem. These blinkers do not merely limit our vision; they also limit the extent to which we can achieve our national goals.

Our country is in dire need of non-partisan, non-sectarian and principled leadership. To expect this from our politicians is perhaps a stretch too far given the inherently antagonistic nature of politics. With this in mind Kenyans are looking towards independent and neutral institutions particularly the Judiciary to perform this role.

It is incumbent on the Chief Justice and the rest of our judicial officers to steer clear of politics. In their words and actions, both inside and outside the courtroom, they must be seen to be unimpeachable, neutral, non-partisan and unequivocally above the segmentations that plague the wider society.

However tempting it may be, they must not descend into the arena and become part of the clash of gladiators. As umpires they must not only remain above the fray, but must be seen and be believed to be above it.

The Chief Justice in particular has a crucial role to play. As the face of the Judiciary he is responsible for maintaining the new found image of the reformed Judiciary as being a neutral, independent and fearless protector of Justice for all. He and his colleagues must guard against making extra-judicial comments that may be construed as supporting a particular partisan cause.

The primary function of a judge is to adjudicate on matters that come before him or her in court. Very rarely should a judge comment about any issue outside of the confines of an ongoing judicial matter.

A referee in football who comments about a particular player to a newspaper would invariably have his or her integrity and neutrality questioned. This would be the case even if the comment was the most innocuous remark on the most mundane of issues.

Similarly, once a judge begins to comment on matters not before him or her; and comments outside of the confines of the courtroom; the esteem of the office they hold, its neutrality and the confidence in its capacity to dispense truly fair justice is inevitably brought into question.

It is worrying to hear judges commenting about the suitability or eligibility of certain persons to hold public office or to vie for elective positions. It seems that some have already made up their minds about the Chapter Six of the Constitution, which deals with Leadership and Integrity. One would be forgiven for thinking that they have already formulated a position, applied it to certain persons and are now only waiting for the formality of a court case within which they can pronounce their pre-judged position.

Serious backlash

It is instructive to note that when one of their own is before a court or tribunal, the Judiciary maintains a studious silence.