Why judiciary should call the government’s bluff on judges and save country

Interior CS Fred Matiang’i and Immigration PS Gordon Kihalangwa consult when they appeared before the National Assembly Committee on Administration and National Security. [Photo by Boniface Okendo/Standard]

Certainly, the government has grown too big for its breeches (britches). From the baloney that ‘those in government are the servants of the people’, we are witnessing a government and individuals who, while enjoying our collective largesse, have become obnoxious contemporary slave masters.

The time, energy and resources channeled into making a new Constitution, promulgated in August 2010 were a total waste. The blatant violation of fundamental rights, disregard for the rule of law and the deliberate balkanization of the country make nonsense of the preamble to the Constitution: ‘We, the people’. The ‘we’ presupposes Kenyans operate as a united whole, yet nothing could be further from the truth.

A government so lethargic it cannot recall Mr. Miguna Miguna was cleared to vie for the governorship of Nairobi County on the basis of his genuine Kenyan roots in 2017 has simply succeeded in proving its befuddlement with the intricacies of governance. Give and take is an alien concept to a leadership that ascribes to the creed, ‘our way or the highway’. This, no doubt is a recipe for civil disobedience as advocated by philosopher Henry David Thoreau. The Executive makes no pretexts at recognizing the other arms of government, particularly the Judiciary. A Jubilee dominated parliament is an extension of the Executive, relegated to the role of rubber stamping executive fiats. An executive that seeks to determine who chairs a parliamentary committee can never mean good for the country.

Self-effacing

That a nondescript Immigration Chief, an Inspector General of Police and a Cabinet Secretary can disobey court orders with such impunity; their denials before a parliamentary committee notwithstanding, leaves a bitter taste in the mouth. The trio’s deportment during the questioning hinted at an escalation of the Executives assault on the Judiciary. It is inconceivable that these government functionaries can exhibit such arrogance if they were without props.

Judge George Odunga did not order the arrest of the Inspector General of the Police and the Cabinet Secretary for Internal Security for blatantly disobeying court orders, ostensibly because no one was, or could arrest them. While this exposes the long standing joke that ‘no one is above the law’, it demonstrates how ineffective the Judiciary is in executing its mandate. It is as if a section of society- the elite- are not bound by the dictates of the law. What shocks is that the Judiciary, seemingly not cognizant of the enormous power it wields, appears to have resigned itself to Executive blackmail and coercion.

A government that disparages the Judiciary and refuses to acknowledge the supremacy of the Constitution is asking to be pulled up short. But there is a problem. The Opposition that should ideally keep it in check is exhibiting an acute chronic fatigue syndrome; a recurrent malady it has suffered over the decades. An Opposition that loses its nerve when it has the advantage is a sellout, and cannot be relied on.

Standing firm

Turkish author Mehmet Murati Ildan opines that “The politicians of your country will always try to encircle you with high walls of lies! You must know that the truth is beyond the walls and without meeting the truth, you cannot meet the freedom”. In essence, this is a call to action. With an ailing Opposition, a credible institution must lead the way in the search for fairness. That role falls on the Judiciary, for that is where the Executive has taken its wars.

The legal fraternity is the last bastion of defense; the Opposition having miserably failed in that regard. If the law is not going to be observed, all efforts towards administering justice need to be dispensed with. Judicial officers must protect their turf, and the first step is to down their tools. Let’s see how effectively the government can function in an environment of civilian impunity.

Doctors, teachers, university dons and nurses, though separately, have proven that the only language the government listens to is that of defiance. It happens at great cost in terms of life and the economy, but each time, it gets the momentary attention of otherwise lethargic functionaries.

The days when the downtrodden had a friend in the diplomatic corps are long gone, but recent events touching on the interaction between Russia, Europe and America over Russia’s excesses offer a glimmer of hope that there are limits beyond which action becomes a necessity. Writer Teresa Stover says that “the power structure wishes to believe that the only options available are those which they present us; we know this is not true and therefore we must redefine the terrain of this conflict, and clearly, it is a conflict of world views and agendas”.

In the comity of nations, our international friends should call the Jubilee government to order. Sanctions can perk its attention sufficiently enough to make it reconsider its stand. Of course, sanctions hurt the common man, but with the levels of desperation and poverty across the country, what else is there to lose?

Mr Chagema is a correspondent at The [email protected]