Those preaching integrity have no option but live it

By Charles Kanjama

The High Court still goes on vacation three times a year, as an enduring tribute to our colonial English legal patrimony. The longest vacation is the ‘Summer Vacation’ that lasts all of August and half of September, after which the Court begins its third annual term.

The first two weeks of term are normally enough to give practising advocates an indication of the level of judicial efficiency and effectiveness to expect. This past fortnight, we noted that previous gains in judicial transformation were rapidly slipping away.

When the Law Society of Kenya (LSK) Council visited several branches to interact with our members, we heard horror stories about capacity and related problems in the Judiciary. These past two weeks, as several cases kept being taken out of the cause list for various reasons, we grew in concern.

From this background, I found myself representing LSK as an interested party in a constitutional petition filed primarily to challenge the judicial vetting of Justice Ibrahim. Kenyans who studied the Constitution before the referendum knew the vetting process was deliberately insulated from court challenge, using language that was as plain as a pikestaff in section 23 of the Sixth Schedule.

Most judicial officers would also admit that when a court challenge arises to the vetting process, the Judicial Oath of Office and Code of Conduct would require judges subject to vetting to recuse themselves from such cases if alternative judges can be found. And finally, most lawyers and members of the public would contend that the great and urgent public interest in the vetting process, of rebuilding confidence in the Judiciary before the supreme test of the next elections, supersedes individual interests of a few aggrieved judges.

So when the High Court by a 2-1 majority chose to stop the entire vetting process on Tuesday, during a mention, without first dealing with challenges to the Court’s jurisdiction, and the propriety of Justice Warsame chairing the judicial panel, I was appalled. My discomfiture grew when I learnt the said judge had already been summoned to appear before the Vetting Board on October 11, which fact ought to have been known to the Chief Justice who asked him to sit in the vetting case.

Due to the great public interest in the matter, LSK has chosen to speak out and express concern with a growing concerted effort to destroy the vetting process in order to save a few favoured judges. Our considered position is that the principle and practice of sub-judice in Kenyan courts was transformed by the 2010 Constitution to approximate the American approach, in which measured and even robust commentary on on-going cases is permitted as part of free speech.

A post-2010 court must earn respect from its practitioners, not by gagging them, but by constantly striving for both procedural and substantive justice.

So LSK agrees with Justice Minister Eugene Wamalwa’s remarks at the recent LSK luncheon; when he quoted Dante who said, “The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis.” If some members of the Judiciary are not ready to undergo vetting, can they vet any other public officers, or even have the public’s confidence to judge electoral disputes?

I have been accused of being naive for demanding unimpeachable judicial integrity. And I accept the charge: Yes, I’m naive, even deliberately naive in expecting that those who preach integrity will themselves live it. But I consider my ‘naiveté’ to be idealism, and I believe that this idealism is the most shockingly pragmatic philosophy of reform.

This was the philosophy that inspired Thomas Jefferson to write in the US Declaration of Independence: “When any government becomes destructive of [its proper] ends, it is the right of the people to alter or abolish it, and establish another one in its place.” This applies to any arm or organ of government. Delegated judicial power cannot oust this right (Article 1, 159, 160).

 The writer is an Advocate of the High Court