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By ignoring title, High Court judge disrespected President

OPINION
By Nick Salat | May 19th 2021
High Court ,Justice Joel Ngugi , making submissions during a ruling on Building Bridges Initiative Bill, 2021, at Milimani Law Courts Nairobi County , on Thursday, 13th, 2021. In their ruling, the Five Judge bench of Justices,Teresia Matheka, George Odunga, Joel Ngugi,Jairus Ngaa and Chacha Mwita declared the Constitutional amendment Bill as unconstitutional. [Samson Wire. Standard].

As a politician and businessman, I have been involved in litigation in one way or another. I have sued and also been sued.

In this regard, I can say without fear of contradiction that last week’s judgment against the BBI was a normal outcome of the court process. In fact, I must confess that the Judiciary has become bolder and more independent under the presidency of Uhuru Kenyatta. This is good for our democracy because it shows that our institutions of checks and balances have come of age; they are working and can be relied upon to be significantly independent.

Looking at what we now refer to as the “BBI judgment”, I can say the declarations and orders issued by the High Court are the usual rendering of cases brought before any court. I leave the nuts and bolts of the judgment for the critical legal minds to analyse.

However, what caught my attention was the casual and demeaning manner in which one of the judges, Hon. Justice Prof Joel Ngugi, addressed and made references to the person of the President, His Excellency Uhuru Kenyatta.

Outright ridicule

As much as the petition that was before the court challenged the role the President played in the BBI process, the demeanor exhibited by Justice Ngugi left no doubt that he had a personal issue against the President!

When referring to the President, the judge outrightly ridiculed the Office of the President by not giving the holder of that office the official title he deserves.

As a judge of one of our superior courts, Ngugi is always accorded the respect that comes with the office he holds. The President, like the learned judge, also holds a respectable office, and, therefore, also deserves to be accorded the respect that comes with the office. Hence, as much as the President’s role in the BBI process was challenged by the petitioners, Ngugi had absolutely no reason to “catch feelings” and derogatorily refer to him merely as “Mr Kenyatta”.

This spiteful reference to the President was totally uncalled for and was in bad faith. As someone who has unreservedly supported the BBI process, I will never lower the learned judge’s stature by simply referring to him as “Mr Ngugi”, the unfavourable judgment notwithstanding.

As courtesy and good manners demand, I shall always accord the judge the respect he deserves by referring to him as “the Hon Justice Prof Joel Ngugi.” In fact, if I were to address him directly, I would forever address him as “My Lord” because that is the title of respect that he deserves.

And since Justice Ngugi failed the ‘respect test’, the entire judgment against the BBI process is being seen by some as nothing but reckless judicial activism. Instead of seeking to bridge the gap between the Judiciary and the Executive, the judgment has widened the rift. As a member of the noble profession, Ngugi should not have escalated existing tensions between the Judiciary and the Executive. I hope the judge will make appropriate amends. 

Worst, the judgment purported to lift the protections accorded to the President under Article 143 by issuing a declaration that encourages any Tom, Dick and Harry to bring civil proceedings against him. This, in my view, was meant to create a scare-crow for the President so that he does not take any further bold steps to unite our country.

So, to the five-judge bench that attempted to ‘scare’ and ‘intimidate’ Uhuru, I tell you, sorry. Don’t expect Mr Kenyatta to be intimidated by the declarations rendered in your judgment. The President will do the job which he took an oath to perform without fear or favour.  

Meanwhile, I wish to point out that as much as our judiciary has demonstrated unparalleled boldness and independence during Uhuru’s tenure, I am equally sorry to say that judicial activism is now entrenched and threatening to eclipse that very independence that we cherish. How?

A look at the judgment against BBI reveals the judges overstepped their mandate by delving into issues which even the petitioners did not plead! For example, the personal attack on the character of the President was not even what the petitioners pleaded for – the judges, acting on their own motion, introduced the character of President in the case and went ahead to ridicule and castigate him without giving him the opportunity to defend himself. I know for sure that this was a trick adopted by the judges to lure the President into the arena of battle by prompting him to seek the right to be heard in this matter and, by so doing, waive his protection under Article 143. But Uhuru is smart enough – he will not fall into this trap. Instead he will follow the right legal channels to vindicate himself with regard to BBI.

Ruto celebration 

Another issue that caught my attention is the response by Deputy President William Ruto. It was strange to see him celebrate the judgment and term the judges as ‘patriots’ as the name and person of his boss was called into ridicule!

How on earth could Ruto celebrate when the name of the person whose support he seeks to ascend to the presidency in 2022 was dragged through the mud? I dare say that, if Ruto celebrated and laughed as Uhuru was ridiculed, he was laughing at himself.

The BBI judgment had given Ruto the opportunity to mend fences with his boss, the President, and his handshake partner Raila Odinga and, most likely, salvage his chances to be President in 2022. But he failed miserably. Instead, he went about celebrating the ridicule the people he needs most suffered.  

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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