POLITICAL BULLYING AND ITS IMPACT ON JUSTICE.

Since the promulgation of the new constitution in August 2010, Kenyans have witnessed a rejuvenated judiciary with many changes. With that came monumental happenings that will go in the annals of the history of this nation. First we witnessed the departure of Ms Nancy Baraza as the deputy chief justice when she was found to have pinched the nose of a security guard.

Then came the general elections last year and the Supreme Court had to deliver its judgement after Raila Odinga contested the results. The former prime minister later was quoted in the media dismissing the court’s judgement and alleging bias.

Next we witnessed the departure of Mrs.Gladyss Boss Shollei as the Chief registrar of the judiciary and the ensuing political drama and statements. The fiasco that followed between the Judicial Service Commission, the Executive and Legislature to date has not been resolved. The LSK the other day accused the president of refusing to gazette the 25 judges the JSC appointed.

           

Recently came the impeachment of Embu governor Mr.Wambora.Consequently,he moved to the high court in Kerugoya to challenge the senate’s impeachment(The court will rule on 10^th March 2014 whether he will remain in office pending the hearing and determination of his suit.)What followed like in the above three incidents I have highlighted was an outbreak of aggressive statements from some senators and members of parliament on the presumed erroneous constitutional ruling, tantamount to saying that ‘’we know which law to be applied and what should be the correct ruling.’’ There  were as well simple populists statements such as ‘’separation of powers’’ and some to the effect that the judiciary has gone back to the era of corruption and being controlled by militias and drug barons who roam free in its hallowed corridors.

The judiciary has also been threatened by parliament to be ‘’dealt with’’ by reducing the budgetary allocations to the judiciary in the next financial year. There has been talk of amending the Vetting of Judges and Magistrates Act to have all those judges and magistrates appointed after the promulgation of the new constitution in 2010 to be vetted. Parliament has also warned of tabling a motion to discuss the conduct of individual judges and the judiciary. They also want the president to decline to gazette the twenty five judges the Judicial Service Commission appointed recently.

Yet there is nothing inherently wrong with politicians making statements about the judiciary and criticising it. The judiciary is not and must not be immune from criticism and Judges should not be placed in an enclave like an ivory tower, clothed in sheaths to stop the sharp arrows of criticism. Politics is always present and it will be an irrational dream to postulate its total elimination from legal and constitutional justice. A Utopian dream which could become counter-productive for the constitutional justice as noted by Polish law professor Marek Safjan in his paper Judges and Constitutional Courts;A Personal Perspective published by the European University Institute in 2008.

 

However, the political bullying and attendant political noise being witnessed currently should not be confused with open, fair public debate and external criticism akin to that by a free media to bring accountability to the judiciary or to rein in on the arbitrariness of certain judges. This political bullying is pathological especially that it has crossed the acceptable levels in a democratic society. For instance, it will help   in undermining the status of the courts in the eyes of the public opinion. The courts and the judiciary at large will be viewed as weak, ineffective and lacking in impartiality and independence.

 

It also sends the wrong message that certain people like politicians are not liable for their decisions and cannot be asked to account. It means that the rule of law is relative and dependent upon certain factors. In effect, the society will get the impression that the courts are not the best forum to solve disputes and they should only do so if it suits their interests. Incidents of citizens assaulting police officers, invading private property etc stem from the reinforcement of such messages. What follows is a total disrespect for the rule of law and a society that is ungovernable.

 

Our politicians have consistently disregarded the rule of law for political expediency. Political bullying has been their stock in trade; the average citizen like me may have cheered them on depending on which political noise is musical. The consequences might be subtle for now but in the long term, we will breed a society with total disregard for the rights of minority groups and vulnerable amongst us, social and religious intolerance and lack of awareness of the rule of law etc.

Therefore, our politicians including the president and his deputy need a Politicians Guide to the Rule of Law to read while on this train to destination Anarchy. Hoping they might just stop midway after reading it. But will they listen? Finally we simple wan anchi must also know that politicians come and go but the rule of law endures.