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Swear in all 40 judges or none? No, it’s every man for himself!

By Elias Mokua | June 9th 2021

President Uhuru Kenyatta with newly sworn-in Judge of the Court of Appeal Justice Ngugi Grace Mumbi after she took her oath of office at a swearing-in ceremony held at State House, Nairobi on June 4, 2021.[PSCU, Standard]

Kenyans yawa! It is quite amazing how we grab an “opportunity” regardless of the context, conditions or moral considerations embedded in that “opportunity”.

I am talking about the 34 judges who recently took the oath of office following their appointment by President Uhuru Kenyatta.

I don’t know much about the legalities of who is right or wrong in the rejection of the six judges. But what stands out in the accusations and counter-accusations between those who support the president’s axing of the six and those opposed to it is how fast the 34 judges grabbed the “opportunity” to take the oath.

Factually, the oath was done during the day and quite peacefully, I must add.

Arguably, there wasn’t any illegality committed, otherwise, the highest powers of the Judiciary would not have been present to legitimise “a crime” by the Executive. Well, if this is a non-starter argument, then let us flip the same argument.

The Executive administered the oath in total ignorance of the law, otherwise, it is not possible that the law can be broken in broad daylight, before the media and in full consciousness. Crime thrives in darkness.

Based on those who want the six judges appointed, the whole group of 40 judges was entitled to the appointment.

If so, then, a clear contradiction is whether the 34 were presented as a package or as individuals. Evidently, the 34 were not being appointed as a package, but as individuals.

In that case, the six rejected can go litigate in a court of law on their exclusion. Or else, how do you explain that a whole 34 learned friends with a battery of high level legal minds brought themselves to the “scene of crime” fully aware that some members from the ‘package’ had been dropped?

It is quite ironical that the very institution that is supposed to guide us on observance of the law is the one that is acting strange on matters that seem pretty clear.

If what the law says is to have all on the Judicial Service Commission (JSC) list approved, why on earth did the 34 front themselves for oath? Was it a case of “everyone for himself and God for us all?”

Or will oath refusal have been insubordination to the appointing authority? In which case, who has the “right of way” in dilemmas of this kind?

Regardless, the cacophony from the legal world is confusing to the public.

Either the president is actually on the wrong with the accomplices being the learned friends around him during the oath – and mark you there weren’t a few present – or the law is always subject to interpretation, in which case the conflicting parties are both right.

Just that one chap got the better of the other. Although those opposed are coming out as victims, I am not sure they are not perpetrators of their own misery.

Non-legal minds like mine have picked not-so-good lessons from these learned friends’ grievances.

First, when an “opportunity” arises, don’t look around to see who is with you, just go for it, grab it and then commiserate with your colleagues if they missed the opportunity.

If you turn around at the finish line and find a few other smiling faces, hug, jump, dance and enjoy the moment. Causalities can be dealt with at another time.

Second, law and order are still an obligation of the poor. If one poor man were to return 100 cows to a neighbour but only give 90, the villagers will not leave until the other 10 are found.

Justice cannot be given in half measure in the world of the poor. Listen folks. See opportunities around you like the campaign money that will be flashed all over. Grab it, eat. One day at a time my friend.

Last and most importantly, we count on the Judiciary to guide us in deepening our understanding of the principles of justice.

When very senior Judiciary officers act with impulses of self-preservation, what should the Executive, leave alone the poor, learn about putting law into practice?

Dr Mokua is Executive Director, Loyola Centre for Media and Communications

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