Of what use is good law in a broken system?

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The Judiciary occupies a hallowed place in any system of laws. As the final arbiters, courts are not only tasked with guiding the country through process but they must also stand out as fierce custodians of rights. It’s an important mandate they can never hope to discharge if they are timid and uninspiring. Nor can they if, acting in concert with other organs and on account of political correctness, they breach the very principles they are sworn to protect.

To borrow the celebrated words of Justice Brandeis in ‘Olmstead et al v United States’, in a government of laws, the existence of government is imperiled if its organs fail to observe the law scrupulously. The Judiciary is the potent, omnipresent teacher. For good or for ill, it teaches the people by its example. Courts themselves cannot break the law without breeding contempt of law and giving birth to anarchy.  

There are two ways by which the Judiciary ought to distinguish itself:  structurally by ensuring that its systems function seamlessly and that its officers remain sufficiently motivated so as to discharge their roles without bending to corruption, and substantially by guaranteeing an endless conveyor belt of powerful jurisprudence.

 Contrary to general opinion which places the Executive at the pinnacle of government, the Judiciary and its judges retain a lot of power to make a difference. While it’s true that structural and manpower problems curtail the course of justice, it is equally true that on too many occasions when they have had the opportunity, courts have shied away from making the bold statement. 

In principle, it is difficult to fault most of the decisions. Yet even in their juris-prudential soundness, they are boring and safe. If the South African experience is anything to go by, one cannot underestimate the difference a sprinkling of judicial activism can make to the socioeconomic and political health of a country. The Republic remains stuck in the revolving door of impunity largely because of the intellectual dullness and conservatism that afflicts even the best of our judges. To this end, one wonders, what the point of a robust and transformative constitution is if there isn’t an equally bold and progressive judiciary to take advantage of its opportunities. 

For eons, this wobbly justice system has undermined our national potential. It is a drag on our economy and has, at times, called into question our priorities. The incongruence between the ideals we confess and the method we choose to actualize them speaks to either our shortsightedness and inability to live up to our collective word, or our unwillingness to implement it.

Every time there is matter being prosecuted in court, whether civil or criminal, we have proven, time and again, that we prefer the weak and safe, which is also the mediocre, to the robust. To be clear, our courts, perhaps out of ingrained timidness, or even enduring compromise, have let felons walk, vie for elective posts or altogether revel in their crime.

The results of this lack of grit are predictable: crime permeates our social fabric; we have thieves in government who masquerade as public officials, whose sole aim is to plunder as much as they can before their tenures conclude.

As a result, Kenyans have never been in as much danger of being victims of true violations of law as they are today – from a legislature that won’t enact laws that actually help, to an Executive so hung-over on self preservation that it cannot understand what the people are fretting about, to a judiciary so bent on scuttling processes and blaming everyone else for its own shortcomings that the citizenry cannot hope to find justice in the courts. It is a scary abyss.

Clark Neily writes: Imagine wielding omnipotent power over nature but possessing poor understanding of how it actually works. One day, after being stung, you decide to get rid of all bees. What would happen? Before long, wide swathes of terrestrial ecosystem would begin to fall apart; crops that depend on bees for pollination would fail, and various other plants would be unable to reproduce and would start dying off, followed by insects, birds, and mammals in short order.

It is an apt metaphor of what has happened to the Kenyan justice system over time. Designed as a participatory ecosystem where every logical voice would contribute to the national fabric, the state, and its government, has owned and privatized the constitution, and used its various arms to rip out sections of it, introduce sickly, hastily cobbled-together amendments and to selectively, wrongly interpret those it cannot revise, to kill debate and dissent, pursue narrow interests or altogether alienate the support ecosystem of the country. 

Like the honeybee analogy, if the system cannot create concord, we are staring at very bleak, very scary future indeed. (

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