Functional crossroads and an honourable quest

An exhortation to reclaim the apex court’s authority and dignity

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Kenya's Supreme Court judges enter the court room before delivering the ruling making last month's presidential election in which Uhuru Kenyatta's win was declared invalid in Nairobi, Kenya September 1, 2017. Picture taken September 1, 2017. REUTERS/Baz Ratner

These are remarks made by Fred Ojiambo, MBS, SC, on the occasion of the inaugural sitting of the new Chief Justice, Hon. Mr Justice David Maraga, on Monday November 14, 2016 at the Supreme Court Building, Nairobi

“Salutations.
My Lord, the Chief Justice, the Hon Mr Justice David Maraga, and President of the Supreme Court of Kenya, My Lady, Deputy Chief Justice, Lady Justice Philomena Mwilu, My Lords and Lady, Honourable Justices of the Supreme Court of Kenya, all protocols observed:

I appear in these proceedings, upon the invitation of your Lordship, the Chief Justice, in my capacity as Chairman of the Committee on Senior Counsel.

I begin my few remarks, if I may, by joining the speakers before me, in congratulating your Lordship, the Chief Justice, Your Ladyship, the Deputy Chief Justice and the Hon Mr Justice Isaac Lenaola, on your recent appointment to your respective honourable offices and capacities by His Excellency the President of the Republic of Kenya, as required by the Constitution. Your respective and joint appointments complete the re-constitution of the Supreme Court, after a depletion in its numbers earlier this year.

That reconfiguration can only be good news to the legal profession, indeed to the entire nation, as it means that the Court may now discharge its mandate, by dealing with whatever matters were pending before it prior to the events which caused the drop in its numbers.

My Lord, the Chief Justice, and Justices of the Supreme Court, this re-constitution of the Court is also significant for other reasons. May I be permitted to refer to the period before today as the first season’ of the Court since its inception? It is a period in which the nascent Court has struggled to find its feet and to establish its place at the apex of the juridical system of our country.

To say that the first season has been for the Court a challenging time and passage would be an understatement of monumental proportions. Both in its contribution to the jurisprudence of this jurisdiction and in upholding its own integrity, this Court has come against punishing headwinds, which may have debilitated its superstructure, if not it’s very soul.

Accordingly, my Lord the Chief Justice and Honourable Justices of the Supreme Court, today you stand at an historic moment. It is historic, in the sense that it is ‘important or likely to be important in history’. For, my Lord the Chief Justice, today you preside over a Court whose central duty and responsibility will be to reclaim and re-assert the authority and dignity of the most highly placed judicial body in this nation.

I do not utter these words by way of criticism. On the contrary, I submit respectfully that today this court stands on the precipice, on the brink of plummeting into the abyss. But, it also stands at a moment of immense opportunity. It is poised to take off to a new, more glorious, future, marked with vision, excellence, determined focus and an air of certainty in its bowels.

Let me humbly highlight two markers which I see as characterising this honourable Court going forward.

Final exponent of national values
The first is that this Court shall be the ultimate exponent and embodiment of our national values.

In exercising its jurisdiction, pursuant to Article 163 of the Constitution, I pray that this honourable court will be the carrier and final exponent of our national values. I pray that this court will not willingly flinch from assuming jurisdiction to do what is just and right, and that it will not be interdicted by a technical approach to that issue, so as to avoid having to confront uncomfortable legal conundrums with far reaching socio-political implications. We also pray that the court, in so administering the law of the land, will do so courageously, with dogged commitment to principle and determined direction towards justice, more justice and nothing but justice.

My lords and ladies, Justices of the Supreme Court, laws are based on values, but they are not the same as values. Laws are enactments (by the State) for the purpose of upholding values. For them to be effective, and to ensure compliance, they are normally backed up by a system of courts and police, as Prof John C. Lennox, once stated in his delightful work, ‘Against the Flow.’ A minimalist approach to the interpretation and implementation of law seems inconsistent with the stature of the apex court in the land. Going behind dry statutory provisions so as to arrive at the values which the subject rules or regulations espouse or reflect should be the highest duty of the highest court in the land.

Perhaps the hallowed words of the sage Babylonian King Hammurabi (Hammurabi (c. 1810 BC – 1750 BC, who was the sixth king of the First Babylonian Dynasty, reigning from 1792 BC to 1750 BC., and was preceded by his father, Sin-Muballit, who abdicated due to failing health) could be guiding posts. In his code he inscribes the purpose of law as being:

‘To cause justice to prevail in the country, to destroy the wicked and the evil, that the strong may not oppress the weak.’
Indeed, one of the oldest functions of law is to set limits on the powers of government, but also to shield the poor and the vulnerable in society from the rapacity of runaway capitalistic adventurism.

‘Empires (whether political or commercial) resemble wild animals. Unlike humans, animals are not inhibited by moral considerations, since animals are not moral beings. Empires tend to behave like that – as amoral power blocs. The overall impression of the vision is of the dark underbelly of politics: the jockeying for power, with less and less moral qualm, until a sense of humanity and compassion disappears under the ruthless lust for domination’ – John C. Lennox, ‘Against the Flow’

It is to that moral balance that we, with most profound humility and respect, call this court. In your quest to do justice, please do not lose sight of the values to which the people of this Republic committed themselves, and which form their most solemn aspiration. We plead that this court maintain in the front lobes of its individual and corporate brain the Latin phrase, Homo homini Deus est (Man is man’s God), which expresses the human instinct for over-reach, and curb such tendency in the best interest and welfare of justice. Man is not a law unto himself.

Integrity
The second marker is probably self-evident. It is that of integrity. This value underlies your very capacity to dispense justice, as it is the bedrock upon which the authority of this court must be underpinned. In asking you so to act, and to require of you standards to which most Kenyans would be loath to be held, we thereby express our confidence in the ability of this court to discharge that very high calling.

To be sure, the Judges of the Supreme Court are but human, and are subject to like pressures, appetites and foibles of the rest of us lesser mortals. Yet, the fact remains that each of you has been found by your peers – on account of your learning, your industry, comportment and wisdom – to deserve a seat on the bench of the highest judicial authority in the public weal. We salute you and offer our willing support and assistance in any way which would contribute to the success of this court, for the ultimate benefit of the administration of law and justice.

It is not my place to offer advice which has not been sought. Yet, as an officer of the court and, in my representative capacity to which I alluded earlier, I am duty-bound to say to you, Lord Chief Justice and your fellow jurists, that despite the big task that is before you, each of you has not only the ability and capacity to meet that challenge but also the capacity to summon up the mettle to do justice courageously and without fear or favour, as you each swore to do. For, as the holy texts remind us in the following paraphrase of the book of Second Corinthians:
‘You may be hard pressed on every side, but you are not crushed; perplexed, but not in despair; persecuted, but not abandoned; struck down, but not destroyed.’ (

Conclusion
We have the confidence that this court will discharge its solemn duty with great fortitude and a singular sense of duty. And, in that, we wish you ever blessing. For, you stand where others before you stood albeit in a different context when these words were declared of them:

‘I have given you authority to trample on snakes and scorpions and to overcome all the power of the enemy; nothing will harm you.’ (Luke 10:19)
May it be so with you too..”

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