The increasing political attacks on the Judiciary are diminishing the institution’s independence and, equally important, the public’s confidence in it.
Thus, the distinction between fair criticism of judges and intimidation of them is an important one. What is taking place is intimidation and threats.
Judicial power is donated by the people of Kenya and the exercise of such power is vested in the officers.
The Judiciary is not a junior partner in the principle of the separation of powers.
The Chief Justice may not be the Commander-in-Chief of the defence forces or the custodian of the Exchequer but the powers bestowed upon him are meant to have a check and balance on the other arms of the government.
So far, CJ David Maraga has done very well in the execution of that office since he took over.
There is no evidence that either he or the judges are guilty of abuse of office.
The independence of the Judiciary has not just been guaranteed by the Constitution, but also by international instruments such as the UN basic principles on the Independence of the Judiciary (1985), the Commonwealth Latimer House Principles and the Bangalore Principles on Judicial conduct to which Kenya is a signatory.
These attacks are denting our international image. Even elsewhere, some senior politicians also find the Judiciary an easy target to increase their flailing election campaigns.
In the United States, while Senator Bob Dole floundered in 1996, looking for a theme for his presidential campaign, he tried to attack judges appointed by President Bill Clinton.
Even though he had voted to confirm 98 per cent of Clinton’s judicial nominees, and most observers found them to be moderate to conservative, he claimed that those judges were dismantling “guard rails that protect society from the predatory, the violent, and the anti-social elements in our midst”.
These assertions were not just untrue, and baseless, but they were also outrageous.
The most obvious example of irresponsible criticism and demagoguery is a distortion of a judge’s record or decision in a case.
It is irresponsible for critics of courts to argue that only results matter, without regard to the legal principles that govern judicial decision making.
It is irresponsible to attack a judge to have him transferred or intimidated from hearing certain cases, which a particular political party is not comfortable with, and it is equally irresponsible to attack a judge to bully those who remain on the bench into submitting to a particular course of action.
Those who criticise irresponsibly often focus only on the result of a single decision without considering the underlying facts and the legal principles which governed the judge’s ruling in the case.
In the current political climate in Kenya, judges realise that by upholding the Bill of Rights in controversial cases they may be signing their own career death warrants or attracting the wrath of lawyers who depend on small handouts from politicians without weighing the consequences of their actions on the integrity of independent institutions.
The effect of all these attacks is that they erode the public confidence in the Judiciary, and ultimately, once one has compromised one’s oath by refusing to enforce the law in order to stay in office, both the judge and the court have been irreparably diminished and damaged.
An example of the leadership that is missing in Kenya was provided by Nelson Mandela in South Africa. When the Constitutional Court of South Africa struck down a law delegating broad powers to his administration, President Mandela immediately made a public announcement that the court had spoken and its decision must be implemented.
Unless we heed this lesson, some may applaud the results reached by the courts in the short run, but justice will not be done.
Our leaders must uphold the rule of law by following such noble examples.
It is, therefore, in order to commend Chief Justice Maraga for standing for the independence of the Judiciary and individual judges.
He must be supported to continue along that path because that is the journey to protecting our nascent democratic standing as a county.
He will leave a powerful legacy of a strong Judiciary that will not only be a beacon of hope for millions of Kenyans, but all those who love and champion the fair administration of justice.
Justice must be served to all Kenyans irrespective of their status in life.
Mr Mwamu is the former president of the East Africa Law Society and advocate of the High Court of Kenya. [email protected]