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Supreme Court protected and cannot be disbanded

By Makau Mutua | February 21st 2016 at 00:00:00 GMT +0300

Some critics of the Supreme Court are smoking something. They are "high" on drama. Otherwise how can any sane lawyer — or politician — call for the disbandment of the Supreme Court? The term "disband" the Supreme Court is not native to the Constitution. It's an idiom that's baseless in law and fact, and strange to the ears of Kenya's democracy. It's a nuclear option that's only possible if the Constitution is overthrown in a revolution, or coup d'état. "Disbanding" the Supreme Court is akin to overthrowing the Constitution. Let's not conflate the moral emptiness — and alleged illegal conduct — of some of the Supreme Court judges with the institution of the Supreme Court. Two plus two doesn't equal six.

I fully understand the anger — but in most cases — the righteous indignation of some of the mandarins baying for the Supreme Court's blood. Most of those crying the loudest are hypocrites, or have unclean hands. Let's take Majority Leader Aden Duale, for example. Mr Duale is like a robot stuck on repeat. He sees CJ Willy Mutunga's ghost wherever he turns. He can't seem to open his mouth without attacking Dr Mutunga. Yet Dr Mutunga has never in his long legal and public career ever been implicated in single act of corruption. It's Dr Mutunga who's doing what no other CJ has done in history — defrock corrupt judges. He has initiated far-reaching changes in the Judiciary. There are courts in far-flung corners of the republic for the first time.

Why would Mr Duale point fingers at Dr Mutunga when the National Assembly is reeking of corruption? Speaker Justin Muturi beat a hasty retreat when MPs threatened to decapitate him over an EACC report that found massive fraud within the august house. I didn't hear Mr Duale call for Mr. Muturi's resignation. Nor has he called for the resignation of his political mentors or associates who have been implicated in corrupt scandals. One can't help thinking that Mr Duale has a personal vendetta against CJ Mutunga. Perhaps he wants CJ Mutunga out of the way so that his side can push for a partisan chief justice. A head of one of the arms of government to shouldn't launch bilious attacks against his counterparts.

Mr Duale's claim against Dr Mutunga is that the CJ has "condoned" corruption in the Judiciary. Mr Duale needs to choose his words carefully. How exactly has CJ Mutunga "condoned" corruption? Isn't the CJ fighting corrupt cartels tooth and nail? In fact, one could make the case that Jubilee's Uhuru Kenyatta — Kenya's CEO — is the one who has condoned corruption in the executive in spite of empty anti-corruption talk. That's because unlike CJ Mutunga, Mr Kenyatta can actually fire corrupt officers. Tellingly, Mr Kenyatta hasn't cracked the whip, except when he reluctantly let go several ministers exposed in corruption scandals. I didn't hear Mr Duale call for Mr Kenyatta's resignation.

I am not saying that justices of the Supreme Court shouldn't be probed where there are credible allegations of graft or abuse of office. The Constitution provides a clear process of bringing corrupt judges to book. But picking on individual judges isn't the same thing as picking on the court itself. You can't — and shouldn't — throw the baby out with the bathwater. If individual justices are suspected of misconduct and corruption, then let the axe fall on them as individuals. But don't go for CJ Mutunga's neck as a proxy for bringing down the entire court. I believe this is the same tactic used by MPs to neuter the EACC and make it a compliant wing of the Executive.

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There's no doubt the matter of Justice of Philip Tunoi is scandalous. The accusation against him — if proven — will be astounding. In the event, Nairobi Governor Evans Kidero would have no choice but to resign in disgrace and face prosecution. More damaging will be the implication of such a finding on the other four judges who sat on that bench. It doesn't take a rocket scientist to figure out that a single judge cannot command four votes absent culpability by the others. As they say, one apple would taint the whole bunch. But we are a long way from there. Let's not crucify Justice Tunoi, or the others, before all the evidence is tendered.

Finally, let's say the obvious — Kenya needs an unimpeachable Supreme Court. Dr Mutunga is retiring from the bench soon. His successor must be a person of the highest ethical and scholarly standards. The next CJ will have to finish what CJ Mutunga started. That's why his successor must fight corruption in the Judiciary without pity. That's why all the sitting justices of the Supreme Court must look in the mirror. They should go if they are tainted, and not destroy the Supreme Court by holding on.

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