Wetangula outburst on El Bashir contemptuous in light of quest for judicial independence

Public Watchdog

Last week’s outburst by political actors in an effort to pacify Sudan’s leader President Omar El Bashir following the High Court’s landmark judgement for the enforcement of an international arrest warrant has renewed Kenyans’ concern on the compelling need to preserve the independence of the Judiciary.

As would be expected in any defining moment, the ruling against President El Bashir caused a simmering diplomatic fury between Khartoum and Nairobi.

Kenyan officials led by Foreign Affairs Minister Moses Wetangula engaged in frantic theatrics to contain the situation, in what at best can be characterised as hopelessly ill-advised.

Why? It is obvious to all and sundry that any theatrics outside the judicial framework are certainly unhelpful, contemptuous and act in futility, as they cannot cure the judgement’s orders and enjoyment of its fruits.

Political class

Thus, the Chief Justice is right that any attempt to ignore court orders is fraught with risk of undermining a key pillar as enshrined in our Constitution — the Judiciary and justice system.

The pertinent question remains: Is the political class capable of respecting and is it willing to defend the Judiciary’s independence when it appears to be in conflict with the wishes or those of the Executive?

Emerging evidence with respect to the El Bashir case suggests that the answer is certainly not yet — not presently, not tomorrow — but maybe in the future.

What, then, are the compelling issues regarding this matter?

Firstly, we must acknowledge that the separation of the three arms of Government — the Executive, the Legislature and the Judiciary — represents the core pillars as spelt out in our Constitution, and neither should be allowed to straddle beyond their constitutionally-assigned jurisdictional mandates.

Moreover, the clarity in the assigned mandates represents delegated vested responsibility to each arm of government by the people of Kenya. And this must begin with commitment by each arm of government to respect each other’s jurisdiction.

The Public Watchdog agrees with the position of Chief Justice Willy Mutunga that to ignore court orders by the Executive would be to overturn the Constitution of Kenya.

Why? The exercise of judicial responsibility is within the dictates of the Constitution and any challenge on its decisions must be within the precincts of the various Judiciary levels up to the Supreme Court as mandated by the Constitution of Kenya.

Desperate situations

Wetangula, as a member of the legal profession, must certainly be aware of these facts but has instead elected to adopt unhelpful political posturing symptomatic to sycophancy in desperate situations.

Secondly, the truth here must be said — and that is that Wetangula and his ilk could as well be gullible of being imposed sanctions for outright disrespect and outburst that it cannot honour such decisions and orders.

Indeed, by demanding that the court considers other sideshows of regional stability issues, which are not part of our laws, is to engage in delusory preposterous acts.

Everyone now knows that our Executive proposed the domestication of International Criminal Court (ICC) Treaty and our Legislature again — out of its own wisdom — approved the same as part of our laws.

Today, this is the hard reality and our sons are already facing proceedings at The Hague due to the same legal acceptance.

Further, the Judiciary must act resolutely and without fear or favour against anyone acting contemptuous of the courts in order to preserve the confidence and independence of the Judiciary. That is what Kenyans expects to prevent meddling with our Judiciary.

Thirdly, as for the Sudanese leader, it is important to underscore the fact that any fury must in any case be directed at those who issued the warrant of arrest, as Kenya is not the source of his current cornered situation.

Moreover, whilst the Kenya Government may be sympathetic to President El Bashir owing to any other local or regional interests, it is denied an opportunity to dictate to our courts by our Constitution consistent with our democratic ideals.

The best that the Kenya Government can do is to appeal against the judgment and if the highest Court in the land — the Supreme Court — upholds the High’s Court decision on account of the current legal position, that shall bring the matter to a closure as this is a matter of compelling public interest.

The author is an opinion leader who prefers to remain anonymous.

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