By Barrack Muluka
Chief Justice Willy Mutunga will recall that he was until recently a man of the people. He sat among the people and thought with the people. He went to the places where the hoi polloi go. He had his finger on the pulse of the nation.
He operated in an enviable space, for he was equally at home with the elite in five-star hotels and with the wretched of the earth in the smallest kiosk in Kwa Maiko.
But then they kicked him upstairs and Dr Mutunga no longer enjoys the privilege of mingling freely with fellow citizens. He no longer knows what ordinary citizens make of their country, nor does he know what they think of those privileged to occupy positions of power.
Such is the tragedy of big offices. You are protected from society. If you are a judge, you are able to reach independent decisions, in accord with the letter and spirit of the law, simply because you don’t mingle. Which is not a bad thing. However, it also helps to know what the people think of what you are doing. Indeed, it matters. For, the voice of the people, they say, is the voice of God.
Dr Mutunga may want to recall how he would lament with us in the hoi polloi places where he left us for the Judiciary. We would talk about how our country was being run. We talked about the affairs of the State. We wondered whether we would ever get it right. Were we only going to sink and keep sinking, deeper? On one occasion, Dr Mutunga remarked: “I have given up on my generation. Maybe a younger generation will deliver us to The Promised Land.”
It was because of this reformist orientation that some of us were particularly keen that Dr Mutunga should head the justice system in the country. When detractors came up with flippant things like earrings and all that, we dismissed them. With this paragon of justice and virtue in place, things should begin turning around, we thought.
The Judiciary was habitually blamed, before the coming of the Constitution of Kenya (2010) as the weakest link in the management of public affairs in the country. If we sorted it out, everything else would fall in place.
Now it may surprise Dr Mutunga that, rightly or wrongly, the perception in the hoi polloi community is that the Judiciary is failing the country. I am not an expert in legal matters. I am least qualified to say when justice has been done. That is for the lawyers to tell us.
But I can tell you a thing or two about public perception. We say in public communications that perception is everything. What the public thinks may not necessarily be synonymous with the truth. It is, nevertheless, “the public truth.” Ultimately this is the only truth that matters. And that is why in law they say justice must be done and be seen to be done.
Rightly or wrongly, there are preponderant perceptions among the hoi polloi that the Judiciary has become not just part of the Kenyan problem, but is leading it. It seems that when it suits them, they will say of a matter that it is not within their mandate to determine it. Conversely, they will take it upon themselves to rule in a matter in which the public thinks they have no mandate. Besides, when it suits them, they will say that others have no mandate over them.
Accordingly, when Judicial Service Commissioners were last year invited to appear before a committee of Parliament, they spurned the invitation. They said that Parliament had no mandate over the Judiciary. They cited the doctrine of separation of powers and ignored the principle of checks and balances that goes with this doctrine.
They ignored, too, Article 125 of the Constitution that gives Parliament powers to “summon any person” to provide information or evidence. They said the notion of “any person” did not extend to them.
The mounting perception in the court of public opinion is that the Kenyan Judiciary may not necessarily be trusted with the reforms the country had in mind in 2010. Again, this could be the wrong perception, but it is there.
Whichever way the Judiciary rules in the various contestations now before it in the wrangles between the governors and the Senate, the court of public opinion will exercise its own interpretation.
However, one question must disturb us. If the Judicial Service Commission does not believe that it is a part of the “any person” envisaged under Article 125 of the Constitution, why would it think that governors could be a part of this “any person”? Indeed, why would Barrack Muluka be subsumed into the notion of “any person” as envisaged by this article? Why should I appear before a committee of Parliament just because the Constitution says that either house of Parliament can summon “any person”? Who said I am “any person”?
Article 125 also says that for avoidance of doubt, Parliament will have the same powers as the High Court, when summoning “any person” to appear before it. Accordingly, why would I want to obey court summonses, when it is now clear that such summonses can be held in contempt – that they may be ignored with impunity? If any one citizen can defy parliamentary summonses, should not every other citizen reserve the right to defy similar summonses?
This is where we have reached. Institutions are in a free fall. The Government is at war with itself – the governors against the Senate, the Senate against the governors; the Judiciary against Parliament; and Parliament against the Judiciary and the Senate.
Such are the perceptions, as epochal wars are fought out among State organs. Matters should come to a head when the National Assembly and the Senate decide not to allocate any funds to the Judiciary and to the counties. It will be the beginning of the end of everything, except anarchy.
Can we trust the Judiciary to save us?
