Wanjiku retains right to tell the king he is naked

By Richard Mutiso
rmmadvocates@yahoo.com

If a court were to decree that green is red, would green be rendered red? Would a Kenyan who insisted that green is indeed green and not red be in contempt of court?

It is simplistic and dictatorial to assert that impunity explains why the Executive and Parliament are increasingly seen to disobey court orders. Both the Executive and Parliament are infused with the learning of eminent jurists, including past and present Attorneys General, and other distinguished parliamentarians of long standing, who understand and prize the rule of law. These institutions also represent the collective will of the people of Kenya, as expressed at the ballot box. As a practicing lawyer, I would be the last person to defend disobedience of the courts. But we must interrogate more deeply the issues informing this emerging and dangerous trend.

First, it is not the business of courts to determine whether green is red! In legal parlance, not all issues that afflict or interest society are subject to judicial interpretation or intervention. In legalese: not all issues are justiciable.

Lately, the courts have soaked up copious amounts of litigation, some raising pertinent constitutional and human rights issues; some driven by self-seeking, johnny-come-lately crusaders of societal rights, motivated by a myriad of agendas, perhaps egotist, perhaps with an eye on the donor; and some driven by plain self-glorification.

The courts ought to now gather courage: they should state that some issues are best handled in other fora. The Chief Justice, to his credit, often points to the need for alternative dispute resolution mechanisms – families, churches, wazees and arbitrations among them.

Lady Justice Maureen Odero recently advised market-stall owners in Mombasa to dialogue with the County Government, when the owners were aggrieved by the government’s decision to raise market rates. Presently, a group led by Hon Ole Kaparo and Hon Yusuf Haji is mediating the dispute between warring parties in Marsabit County. These are not judicial processes, but they are equally effective and acceptable.

Second, court orders must be anchored in fairness and justice. The penal consequences of disobeying a court order are one reason for obeying the order. But the main reason why the general public should obey the courts is the intrinsic fairness of their edicts, and the high standing of the persons who man them. Penalties may secure temporary compliance; in the long run it is justice that will uphold our courts and, eventually, the rule of law.

I have no personal experience of it, but going by television debates between contenders in the recently concluded LSK elections, there is talk that cartels are rearing their ugly heads in the Judiciary, despite the ongoing vetting of judicial officers.

In my experience, most of our judges are men and women of the highest integrity and learning, 24-carat gold actually, working under the most difficult of circumstances. However there is now a strong perception among practitioners and the public that whereas the Judiciary of the discredited era was beholden to corruption and impunity, the present one is beholden to what is referred to as “public interest litigation”. Not all “public interest litigation” is “public” or inspired by public good. The courts can help solve some of these problems by declaring that obvious fact; by referring some of these claims to other bodies; and by imposing costs against persons who unreasonably waste valuable judicial time. Third, the exercise of judicial power must aim to protect Wanjiku’s interest, not to flex its muscles against other branches of Government who are partially justified in complaining that the Judiciary has encroached on their constitutional domain.

During the recent spat between the Judiciary, Parliament and the Executive it was interesting to note the assertion of supremacy by each organ of government. This is a legal fallacy. The final word is “Wanjiku” whose status is cast in the Constitution. Article 1 could not be clearer.

All these institutions were meant to protect and advance “Wanjiku’s” welfare. None should presume to superintend the others. Why can’t they seek a win/win situation in the new constitutional jurisprudence by endeavouring to achieve governance, not by antagonising one another BUT rather by mutually respecting and correcting one another in humility?

A judge’s order ought to be anchored in humility, well reasoned and well-intentioned, and not a self-righteous attempt to denigrate Parliament or the Executive. Is it for nothing that we ask the Executive and Members of Parliament that present themselves to Wanjiku every five years for evaluation of their performance? Even as the Judiciary checks and balances the other two arms of government, it must not allow its edicts to emasculate them, or prevent them from undertaking their constitutional mandate, for ultimately “Wanjiku” retains the mandate to show them the door for non-performance.

Wanjiku must retain the right to tell the “king” that he is naked, when he is; whether the king is the Executive, Parliament or the Judiciary.