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.
They do not comment on anything touching on the matter, be it the merits or demerits, or even the applicable standards that will be applied in determining the same.
Why then is this not extended to non-judicial officers who have not even been brought before a court of tribunal?
Judicial officers should know that what they say outside the courtroom has the potential to cause a serious backlash and tarnish the image of the Judiciary. One may think that one is making an off-the-cuff remark amongst friends in a social gathering, but that remark will be viewed as having been uttered by that judicial officer as an officer, not a private citizen.
It is a difficult life to live no doubt; but judicial officers must take a stand and when certain topics come up in their midst they must steadfastly refuse to comment, even if they are amongst friends.
That being said, our politicians and media practitioners must accord the Judiciary and its officers the respect they deserve.
Even if one disagrees with the finding of a particular court, to embark on a tirade that questions the integrity of the officer without justification is simply wrong.
The so-called ‘gutter press’ has developed a noxious habit of launching baseless attacks against certain judges and magistrates seemingly as part of a campaign to malign the image of those particular judicial officers. This must stop forthwith.
The Judiciary should also know that the Law of Contempt is a fearsome sword that can put an end to the culture of impunity that is pervasive in the lower reaches of the Media with a single swoop.
Judicial officers can comment on social matters as they have as much freedom of expression as any other Kenyan. However, they should know that even as they exercise this right they must be careful to at all times maintain the impartiality of the Judiciary, both in appearance and in substance.
The writer is a PhD (Law) Candidate and an Advocate of the High Court.
jasper@justicembiuki.com
