Kevin Omwanza
The Kenyan political scene is perhaps the best of what can be described as a theatre of the absurd, and watching the prime time news appears nothing short of tuning in to an unedifying but comical flurry of clowns bleating up and down their respective podiums.
Appears that the degree requirement for certain elective offices did little, if anything, to purge the stubborn idiocy and ignorance beclouding our august houses. Take for instance the last two weeks which have seen the overflow of emotions and ignorant passions; an unprecedented onslaught on the judiciary led by no less a personage than the president himself, aided by hitherto tidy brains such as Kipchumba Murkomen who, some suspect, had their wits addled by the strong tensions that passionate sycophancy and demagoguery often evokes.
But what exactly has been transpiring? And to what extent does it go to threaten or undermine the independence of the judiciary, blur separation of powers, and constitute judicial or executive overreach? Should the Chief Justice have lent credence by responding to the clownish blurts?
Politicians’ utterances
After a series of adverse rulings from the courts, the executive branch of the government was clearly incensed. Unable to hold it in anymore, they launched into a tirade, inveighing the courts, casting aspersions on their impartiality, and levelling a host of allegations against them- intending to thereby erode the court’s legitimacy or garner political mileage.
‘I want to tell those in the courts that because we have respected you for a long time we are not fools. We cannot accept the courts to be used by those not interested in the elections to frustrate the IEBC,’ said President Uhuru Kenyatta on July 9, 2017.
The deputy president, leader of majority in senate and parliament, and other legislators opined almost similarly.
It wasn’t the first time. After the controversial Supreme Court ruling in 2013, Raila Odinga, a loser of the petition, made a few caustic remarks against the chief justice and the apex court. Accusing Dr Mutunga, the then CJ of presiding over an injustice:
‘Remember that 800 pages of our evidence was struck out by the Supreme Court with a stroke of the pen. Then the same court goes ahead to say that there was no evidence. Is this justice or injustice?’ Lamented the former prime minister, adding that the chief justice presided over an injustice.
In December 2016, Aden Duale told Justice Odunga in no uncertain terms that they’ll ‘expose’ him, after the said judge issued an unappetizing ruling against jubilee. ‘I will introduce a motion to discuss you. We will expose you,’ Duale fumed.
In-between there have been several unedifying spats between the judiciary and the political class, playing out in the public arena, of course to the chagrin of ardent supporters of the constitution and its pet principle of separation of powers. Article 160 sets forth the independence of the judiciary- a set of stipulations that insulate the judiciary from the reach of unbridled power.
The contemplation of the drafters in being so unequivocal was to foster the rule of law through the provision of the necessary checks and balances that ensure accountability and transparency. These are the ingredients of good governance.
Of course such a demarcation, in the meantime, and at the early stages, is guaranteed to spark tensions and foment a host of issues. The two institutions will run afoul of each other; and where their duties imbricate, there’ll be tussles. For example, there is wont to be a judicial dilemma on how much courts can embroil themselves in questions of national policy – knowing too well that policy-making is the bailiwick of the executive branch of government.
The judiciary will have several run-ins with a substantially defanged executive that is yet to disabuse itself of the notions of grandeur and supremacy. It will be long before the powers that be make peace with the fact that the judiciary, and the legislature are furnished with immense powers, secured by independence, and hedged in with an impressive array of constitutional guarantees. Their outbursts, as recently seen, are but the manifestations of frustrations of having to deal with an emboldened institution.
Unbecoming?
Can the utterances amount to contempt of court? Are they unbecoming? It is within an individual’s rights to criticize unfavourable court rulings – as long as those criticisms don’t fall over to the realm of insults, threats, intimidation, and blackmail – for then they would be deemed to be calculated to subvert the judiciary’s independence and erode its legitimacy.
It is settled that the independence of the judiciary is not a prohibition against criticism. The courts cannot be and are not immune from criticisms that extend to robust observations of a particular decision or penalty.
Lord Atkin once pronounced himself thus:
“No wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in public or private, the public act done in the seat of justice…”
Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely expressing a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.
Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’
In the same vein, in Attorney General for NSW vs Mundey (1972), it was decided that ‘a comment about the courts or a judge may be contempt if it is merely scurrilous in nature or excites misgivings as to the integrity, propriety, and impartiality brought to the exercise of the judicial office.’
From the foregoing, it is necessary to distinguish between value judgments and insults; threats, intimidation, blackmail on one side and mere criticisms on the other side, however robust and outspoken.
Value judgments aren’t insults. They do not constitute contempt of court. But insults or malicious statements that evoke misgivings on the propriety, integrity, and impartiality of judges, whether in court or outside, before the press, easily constitute contempt of court.
Threats, blackmail, and intimidation are of a more egregious nature than bare criticisms. Granted, courts, judges, and their judgments are not immune from criticisms, but the criticisms should be professional and not personal. They should also be deferential. Threats, blackmail, and intimidations are attacks on and attempts to subvert the independence of the judiciary.
However, I opine that not every threat or intimidation or blackmail should induce an apprehension of a subversion of the judiciary’s independence. Threats on the lives, liberties, families, and property of the judges are clearly egregious and the victims have a straightforward legal recourse. But threats to take judicious, legislative, or executive actions against courts and judges are just that: threats. The constitution provides plenty of unassailable fortifications for judicial institutions and the judicial officers- and these fortifications form a bulwark that protects the judiciary’s independence from unwarranted assaults. Judges and their offices are no longer as susceptible to disgruntled, powerful, and supercilious litigators. Politicians can speak, threaten, and do whatsoever else to stoke the ire of the courts, but their words and fuming are impotent.
Judges to give politicians’ assaults the contempt card
Politician’s acerbic words can never amount to anything save in serving to erode the court’s legitimacy, and the judiciary should necessarily be reticent. Answering every assault on the institution isn’t the most prudent thing, as it will lend credence to the bile politicians spew. But our Chief Justice, Maraga, has already played into their hands. Lord Denning once wittily remarked that ‘…those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.’
It, therefore, pays for the judges not to descend into the arena of political controversy as things may escalate very fast and so terribly, boomeranging on the judge himself as happened in Lord Justice Cockburn who essayed to answer his critics after getting incensed with their caustic remarks, but instead found himself in the eye of the storm- thus, becoming the subject of a paper ‘The Judge Who Answered His Critics’- An unflattering rendition on the folly of a judge engaging the public in spats. A judge lacks the ruggedness of a politician, and that disentitles him from engaging in pointless slugfests.
Finally, the pithy words of former British Prime Minister David Cameron before the House of Commons are instructive: ‘there are occasions, as we all know, when judges make critical remarks about politicians; and there are occasions when politicians make critical remarks about judges. To me, that is part of life in a democracy. ^
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