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Maraga and Mutunga only added more heat than light

OPINION
By Kamotho Waiganjo | June 12th 2021
Chief Justice Martha Koome with former CJ David Maraga (left) after receiving instruments of power from Deputy Chief Justice Philomena Mwilu during the assumption of office ceremony held at CJ's Gardens, Supreme Court. May 24, 2021. [Jonah Onyango, Standard]

That two former Chief Justices spoke forcefully on the matter of the appointment of six judges is testament to the seriousness with which the country takes the issue. It also speaks to the maturing of our democracy that the two elder statesmen spoke without fear of retaliation.

Having lived through the 80s and 90s I do not take such developments for granted. We must never regress to the days when innocuous statements like Kanu being dead landed an MP and a Speaker of Parliament in indefinite detention.

Without any doubt, the earlier the appointment impasse is resolved by either appointing the judges, or subjecting them to a tribunal, if indeed there are impropriety issues, the better for the growth of our democracy.

No one, including the president, wants to live with the perception that he is cherry-picking friendly judges and loading the courts with persons who cannot rule against government. This narrative, however alluring, is unsupported by facts. 

In the list of judges appointed, there are several who have consistently been a thorn in the Executive’s flesh. Justice Mumbi Ngugi has even been discussed in Parliament. Justice Lessit was among the judges who recently delivered a judgement declaring the president’s appointment of parastatal chairmen and board members unconstitutional.

In the list of the excluded judges are judges who have no record of “anti-government” decisions.

Yet the “cherry-picking” and “BBI punishment” perception is powerful and must be disabused through a just resolution of the matter.

Clearly something in the process went wrong. The angst, expressed publicly, by the leaders of the two arms of government did not help.

Several comments about the Emeritus’s address. In 2016, when a similar situation arose, CJ Mutunga took a diplomatic approach, similar to what Justice Koome appears to have taken.

The unrestrained vitriol displayed in this week’s letter was absent from his tone then. His detractors have argued, unfairly, that he was trying to win back the trust he lost with civil society after affirming Uhuru’s 2013 election.

On his part, Justice Maraga’s speech was vintage him, cogent, resolute, unyielding, no holds-barred. I got the sense that the attack was not so much on the president. He had previously said everything about the president except the fresh call for impeachment.

The former CJ repeated that he had refused to accept a partial swearing in because that could have been tantamount to him violating the Constitution. By implication, Justice Koome, by accepting a partial swearing in, was in violation of the supreme law. That’s an under the belt blow.

While the two former chief justices are guaranteed the right to express opinions on national matters, I believe that on this one their timing was wrong. Justice Koome has hardly warmed the seat as the new Sheriff. She is resolving a mess she did not create in the manner she promised during her interviews.

Wouldn’t it have been more prudent to allow an attempt at resolution before jumping in and restating hardline positions that make it harder for the parties to resolve the matter amicably?

I understand that in the minds of many, there is only one way to resolve the matter; appoint the judges! We easily forget that our Constitution is still young. We are still coming to terms with its dictates, its presumptions and assumptions, including its naïve notion of good faith.

In this early season, intra-institutional disputes are better handled away from the public eye for the better for the growth of our constitutional order.

Of course if that fails, the public has every right to know and be involved. But this week, I fear these elder statesmen jumped into the fray prematurely and added heat, not light, to the matter.  

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