Attack on Judiciary: Where do we go from here?

This is the second occasion that the Jubilee leadership is attacking the Judiciary.

The first attack occurred on December 2016 when Assembly Majority Leader Aden Duale accused High Court Judge George Odunga of playing “tribal politics” and threatened to have the Assembly discuss the judge.

On the previous occasion, both Chief Justice David Maraga and the Judicial Service Commission (JSC) separately came to the defence of Justice Odunga.

INDEPENDENCE

In its statement, the JSC expressed “outrage at the emerging trend where Government officials and other parties have engaged in open manifestation of disrespect to the courts and judicial process in the country”, and “asked all Kenyans to respect and promote the independence of the Judiciary in dispute resolution and advised any party dissatisfied with a court decision to exercise their right of appeal”.

But in a clear disregard of JSC’s advice against “public lynching” of judges or magistrates for their decisions, Jubilee has done it a second time.

JUBILEE PARTY

This latest attack was led by President Uhuru Kenyatta and Deputy President William Ruto who, on separate occasions on two successive days, took turns to admonish the Judiciary about its decisions, with the President warning morbidly that his government does not fear the Judiciary.

And then the Jubilee Party secretary-general Raphael Tuju, convened a press conference specifically to attack Justice Odunga and his Court of Appeal colleague, Justice William Ouko, whose independence they questioned, pointing out that the decisions made by the two judges were coloured by the fact that they were related to personalities in the Nasa leadership.

PROSECUTION
There followed calls that the Director of Public Prosecutions (DPP) should prosecute Duale over his attack on Justice Odunga, and the opposition even filed papers in court that were supposed to commence the prosecution.

However, nothing further followed at that time.

The strong condemnation that these latest attacks elicited was not good enough to deter a repeat of the attacks the following day.

DEFENCE

Unusually, those that have come to the defence of the Judiciary include the Commonwealth Judges and Magistrates Association, an organisation that seldom comments on Kenya’s domestic affairs.

In defence of the Judiciary, Jubilee needs to note that it is not unusual for courts to issue decisions in which somebody gets disappointed.

For example, a large section of the country was disappointed by the decision of the Supreme Court in the presidential petition in 2013.

VERDICT

Although the opposition Cord was obviously greatly disappointed over that decision, they found a way to stoically accept it and have since moved on.

The reaction by opposition leader Raila Odinga to the Supreme Court decision was measured and dignified.

He strongly disagreed with the judges but did not descend into an attack against them.

CONFLICT OF INTEREST
A number of us have spent the last four years criticising the Supreme Court over that decision and demonstrating the profound harm that it caused the Judiciary.

Our criticism has relied on the text of the judgment, whose reasoning we have discredited, and also on the observable procedures that the court employed, which we have also questioned.

Judges are appointed from among the general population and, like everyone else, they have histories and relationships with other people in society.

There are rules about conflict of interest when these relationships would give the appearance of bias when deciding a case.

SPECULATION
Like other citizens, the six Supreme Court judges that decided the presidential petition have associations with Kenyan society.

It has been within our powers to use our knowledge about those associations to speculate how that decision may have been arrived at.

However, this is a slippery road to take and we have avoided it.

It is reasonable to suspect that the opposition leadership, too, knows one or two things that they could have used to attack the Supreme Court judges for that decision.

BALLOT PRINTING

To their credit, they did not go down that route.

On its part, Jubilee has chosen this slippery road, and has sought to lynch two judges.

In total, eight judges were involved in the two decisions that aggrieve Jubilee.

Three High Court judges gave a unanimous judgment in the ballot printing case, while five justices of appeal had given another unanimous decision in the case touching on the tallying of the presidential vote.

BIASED
The two judges that Jubilee singled out for attack were part of the eight and, on their own, did not decide the cases in question.

While Jubilee has stated the reason for its belief that the two were biased, it has said nothing about the rest.

Were they, too, biased and on what grounds?

Jubilee has singled out the two for attack only because of their ethnicity.

ETHNICITY
Jubilee deployed Tuju, with whom the two judges share an ethnicity, to spearhead the attacks.

Clearly, Jubilee believes that using Tuju would increase the authenticity of its claims and, secondly, the party would be able to avoid backlash by presenting this as a village war between Tuju and the judges.

In agreeing to play the attack dog, Tuju is singing for his supper.

DPP TOBIKO

As an outsider in Jubilee, he feels the pressure to demonstrate his loyalty by attacking people with whom he shares an ethnic identity.

Where does the country go from here?

It would have been logical to, again, call on the DPP to commence prosecution of those involved in these scurrilous attacks who, regrettably, include lawyer-politicians.

The DPP did not prosecute Duale, and is unlikely to prosecute anybody this time.

LEADERSHIP

Secondly, the President and the Deputy President are involved this time round.

This lifts the problem from the plain territory of the criminal law, into the realm of leadership.

Whatever the consequences, the country’s overall leaders have declared war on the Judiciary, and indicated that, if future decisions are not to the liking of their party, they will take political action on the Judiciary.

The declarations by the Jubilee leadership amount to an abrogation of the Constitution and an indication that, yet again, the electioneering process has descended from a democratic contest to a naked power struggle.

If Kenya ends in major political trouble during these elections, a significant cause of that would be the Jubilee leadership.

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