By KWAMCHETSI MAKOKHA
Posted Friday, February 4 2011 at 15:35
Were it not for Prime Minister Raila Odinga’s appetite for things foreign, perhaps the ruckus over appointing Kenya’s next Chief Justice would have been avoided.
By suggesting that Kenya’s next Chief Justice should come from the Commonwealth, Mr Odinga makes clear his intent to export jobs at a time when the country is sagging from excess human resource.
Nothing could be more unpatriotic, given that there are 8,001 lawyers registered to practice in the country.
After nearly 50 years of independence, it is surprising that Mr Odinga could not find one lawyer fit to be chauffeured around town in a limousine, guarded round the clock and paid a princely salary for sitting in the Judicial Service Commission as chairperson while it recommends people to be appointed as judges; and not a one to serve as president of the Supreme Court and head of the judiciary.
Although the Constitution allows any person from the Commonwealth to serve in the Supreme Court, Court of Appeal or High Court as a judge, that provision was never intended for serious use.
Since the Chief Justice sits as President of the Supreme Court – the only arbiter in disputes over presidential elections – it is important that he or she appreciate the nuances of African customary law.
One might wish to communicate the nuance of certain aspects of African custom with regard presidential elections and, finding English inadequate, fall back on the mother tongue only to remain unheard because the judge is foreign.
That would be a miscarriage of justice. Mr Odinga’s unpatriotic thoughts echo those of his one-time lawyer, Gichugu MP Martha Karua, who has previously suggested that three of the seven Supreme Court judges should be non-Kenyans.
Three judges who cannot understand a single Kenyan mother tongue would be a disaster for the administration of justice. They would be conversing only in English, thus undermining code-switching during consultation ahead of the ruling.
By the time the foreign judges get round to understanding a greeting and repeating it without mispronouncing it into an insult, the country would be mired in a backlog of cases.
On four separate occasions, foreigners have been inserted into Kenyan judicial mechanisms with disastrous results. First was the appointment of three foreigners to the Independent Review of the 2007 Elections.
Had Prof Marangu M’Marete, Ms Catherine Mumma, Mr Francis Ang’ila and Ms Lucy Kambuni investigated the election alone without the South African Johann Kriegler, the Argentine Horacio Borneo and the Tanzanian Imani Aboud, they would probably not have caused so much unemployment by disbanding the Electoral Commission of Kenya.
As a result of involving all those foreigners in a domestic matter, 22 ECK commissioners and staff lost their jobs, exacerbating an already dire unemployment situation.
In the second instance, the Commission of Inquiry into the Post-Election Violence only had our own Justice Philip Waki working with New Zealander Gavin McFadyen and Congolese Pascal Kambale.
The commission was overwhelmed by its foreign influence and wrote a report pushing for an end to impunity, demanding police reform and a Special Tribunal for Kenya or else...
As a result of involving so many foreigners, Kenya is worried sick about several of its citizens losing jobs as they defend cases at the International Criminal Court.
Over at the Truth, Justice and Reconciliation Commission, everyone was happy to put bread on the table for their children – except that Ms Betty Murungi – until the American Ronald Slye started threatening to resign.
Granted, Zambian Gertrude Chawatama and Ethiopian Berhanu Dinka, have been quiet as they should be, but still, foreigners have been undermining Kenyans’ bonding moments by preventing sons and daughters of the soil from taking and keeping well-paying jobs.
Lastly, when Kenya had to write the new constitution, it was forced to accommodate the South African law professor Christina Murray, Uganda’s Prof Fredrick Ssempebwa, and Zambian scholar, Dr Chaloka Beyani.
Their inability to converse in a single Kenyan mother tongue created innumerable problems within the Committee of Experts, almost turning it into a Tower of Babel as the Kenyans got on famously with each other and bonded over what brought them together.
Instead of limiting the discussions about whose mother tongue would sound better when espousing judicial concepts, the country would be forced to take their private quarrels to an outsider.
The ethnic cohesion and harmony in Kenya is such that the appointment of anyone who speaks a local mother tongue fluently inspires trust in the entire judiciary even before a single case is heard.
kwamchetsi@formandcontent.co.ke
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