Why the Judiciary should be challenged

Early this week, President Uhuru Kenyatta came under heavy flak for daring to tread where not even Lucifer is permitted. His deputy's caustic deportment is rubbing off on him. In an unguarded moment, the President, taking cue from William Ruto, went hammer and tongs at a judiciary he now believes is after his scalp come August 8, 2017.

He attacked the Judiciary for supposedly working in favour of the Opposition, completely amnesiac of his earlier urgings that if the Opposition felt aggrieved over anything, well, the courts were there for them. Indeed, the Opposition gleefully took his advice and has made the courts its second home.

Direct hits

So far, Lady Luck seems to smile on the Opposition if the victories it has scored against Jubilee are anything to go by. Unfortunately, a certain name on the bench has featured consistently in the rulings that Jubilee increasingly finds unfavourable to it. Thus, Jubilee's attack dogs whose minds 'snap shut as soon as their mouths open', according to Opposition Principal Moses Wetang'ula, had a field day. But apart from the personalised attacks on Chief Justice David Maraga and Justice George Odunga, the executive outbursts raise a fundamental issue on the role of the Judiciary in good governance, mis-governance and the extent to which the judicial system is responsible for the way our society is today.

I have no qualms stating the fight against corruption is wasted effort if the judicial system does not re-examine its approach. And as long as legal proceedings remain expensive undertakings, our version of justice will be determined by the depths of one's pockets. The ordinary Kenyan man and woman have little or no faith in a judicial system whose scales are tipped, not necessarily by evidence on the table, but rather the monetary worth of either party. That a peasant whose one-acre piece of land has been grabbed by a moneyed, politically correct individual will lose it, first because he cannot afford the services of a lawyer and secondly, his ignorance on what to do. Pro bono services in Kenya do not exist, except maybe as a concept.

The injunctions that courts churn out by the dozen on any given day mean that the delays and pile-up of cases at the Judiciary are a deliberate move, and it would be foolhardy to deny that they are the expressway to corruption within the hallowed precincts of the Judiciary. Corrupt judges have been decried even as some were relieved of their duties as a consequence. There are inmates in Kenyan jails serving sentences for crimes they know nothing about because they are poor. On the other hand, there are crime suspects out there seeking elective positions today because their money and a judiciary that lays too much stock in their lopsided view of the bill of rights allows them to be free.

Courts, we must agree, are made up of human beings; people with feelings just like you and me. Magistrates and judges have their biases and agendas; they would be zombies if they did not. Why then are people conditioned to believe courts are infallible? Isn't that why travesty of justice is more the norm than the exception? Perhaps the idea of having magistrates' courts, the High Court, the Court of Appeal and the Supreme Court was to take care of inherent human failings, but doesn't it, in the same vein, speak of the fallacy that we are living over the righteousness of court rulings? A magistrate's court passes a verdict, which the High Court overturns. The High Court's ruling is then trashed by the Court of Appeal. How much confidence does that inspire?

Contradiction

In the 1968 'San Antonio Independent School District v. Rodriguez' case, a Parents Association in Edgewood, Texas, USA, filed a complaint against schools that showed bias in education financing between the rich whites and poor blacks. They claimed this violated the equal protection clause under the Fourth Amendment of the United States constitution. In part, the clause states: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons ...' The Supreme Court's final ruling in 1972 stated that 'inequities in school funding do not violate the Constitution. Discrimination against the poor does not violate the Constitution and that education is not a fundamental right'.

Even though the judges based their rulings on a lacuna in law, viewed against the Fourth amendment that sought equality, one can readily deduce the judges' perceptions were clouded by racism. Their agenda was the continued subjugation of the black people; forget the nonsense about America being the land of equal opportunity.

The absurdity of that ruling makes good argument for why courts must be subjected to open, non-restrictive scrutiny and criticism whenever they go overboard, secure in the assumption their decisions, no matter how ridiculous, are sacrosanct.

Mr Chagema is a correspondent at The [email protected]