By George Marenya
I am disturbed by Justice Mohamed Warsamesfs ruling on the Truth, Justice and Reconciliation Commission versus The Chief Justice and Bethuel Kiplagat on several grounds. I will only highlight the more salient ones.
Justice Warsame relies heavily on the findings in the High Court Misc. case No. 470 of 2009 without seeking to properly illuminate the issues that seized that court and the grounds for making whatever findings they arrived at. This is not good practice in writing a constitutional judgement.
He seems to be battling with his conscience when he bemoans: "to the extent of sounding simplistic and being a criminal trial...This court can only exercise a public law jurisdiction in accordance with set down principles for the grant of judicial orders sought."
Ultimately, he resorts to a very narrow understanding of the essence of the TJRC Act of 2008. The aim of this Act is to erestore the human and civil dignity of such victims by granting them the opportunity to relate their own accounts of the violations of which they were victims."
It is a victim-centered Act. Warsame seemed to imagine and indeed believe that Kiplagat must first be properly soothed before the commission can proceed. No!
Actually the TJRC Act contemplated vacancies in its composition and spells contingencies that must be activated to cure the same.
Justice Warsame notes with concern like all of us that Kiplagat jointly with our commissioners signed a petition to the Chief Justice requesting that a tribunal be formed to investigate his conduct and clear him or find otherwise. Previously, he was extremely vocal in his demands for a court process. It did not matter to him that he agreed to sit at the helm of a body which will probe into criminal culpability of individuals without itself being a court.
Judicial activism
Would it not have been easier for Kiplagat to allow the tribunal run its course and parade his innocence before the whole world through such forum?
Warsame pours unseemly vitriol on the commissioners for daring sue Kiplagat. Here he losses the bigger picture. He forgets to ask himself, how do the consumers of the TJRC process look at the whole saga?
Is the average individual in Yala and Wagalla capable of making his views in this saga known? If not, what recourse does he have? Arenft the commissioners, therefore, holding brief for the public at large?
At this juncture, it is right to introduce the opposing and complementing tenets of judicial activism and judicial restraint.
Laws are made by the Legislature. The Judiciary interprets and gives decisions enforceable by the Executive branch of government. But what if the Legislature is rogue, biased or vague.
According to the earliest proponents of judicial review, courts are the best avenues for defending individual rights of those who are weak economically or politically. It is the best lobby for the downtrodden.
Decisions made on the basis of judicial activism have also been called generous rulings. Constitutions or laws are products of a peoplefs struggle to live peacefully with one another. They have a history behind them. Moreover certain doctrines or philosophy inform them.
Americans wanted their constitution to afford a more perfect union. We wanted ours to destroy dictatorship and bring to an end personal rule. That is why we transferred a lot of power from the president to the myriad institutions.
Justice Warsame not only missed the spirit of the TJRC Act, which is to hasten the journey to a new Kenya where equity and justice prevails, he also failed to capture our countryfs history both currently and entirely.
Insisting that TJRC should have consulted the A-G without stating with law he is relying on betrayed lack of juristic capability.
Curious admission
Ranting angrily at the commissioners for bringing "frivolous and useless litigations" not only showed lack of composure but also betrayed an absence of depth of thought.
Ultimately, he makes a curious admission at page no.32 of his ruling that none of the allegations against Kiplagat ehave been considered, investigated and determined".
That is the point Justice!
Lastly, is this the same Justice Warsame who co-signed the very scholarly ruling on FIDA and others vs. Judicial Service Commission late last year? I rest my case, grudgingly.
Julius Nyerere said judges live in society. As such their rulings must be in line with the aspirations of the same societies they live in. Otherwise such rulings would attract contempt from the society if they were to be wild and off the mark.
Justice Warsame will do well to consider the rulings of the able Justice John Marshal of the ancient American Supreme Court.
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The writer is a journalist in Nairobi.
