By PHILIP OCHIENG
Posted Saturday, March 31 2012 at 16:42
Posted Saturday, March 31 2012 at 16:42
In a country where officials never have the grace to own up and resign, it was refreshing to hear the Prime Minister apologise to the Chief Justice. Yet that was only one aspect of it.
To be sure, the Judiciary has gained a great deal more respect since Willy Mutunga assumed its leadership.
But it is exasperating to hear him make statements implying that the Herculean task of cleaning that Augean stable is complete and that the Judiciary is now spotless and above criticism.
At least, that was how I understood his rejoinder to Raila Odinga’s exception to a recent court ruling.
Yes, Mr Odinga needs to weigh his words. But incivility is the only thing I will criticise in his statements on that ruling.
No matter how far the courts have revolutionised their thinking and activities, at no time can we declare that the Judiciary is now unimpeachable.
Freedom of expression
Freedom of expression is the recognition that, being human, all individuals and groups always make mistakes – either deliberately or unwittingly – and that only through free and open criticism (plus a system of reward and punishment) can we help one another to correct such mistakes.
If the Constitution is not explicit on it, many of its provisions state, at least implicitly, that every Kenyan has an inalienable right to express an opinion on every action by all the three branches of government, both in particular and in general.
From our courts, the rules forbid only sub judice statements.
Notwithstanding its merits or demerits, it is sub judice for anyone to express an opinion in the media or in the marketplace about a case still in court.
The Latin phrase sub judice translates as “under judgment” (by a body of law). Justice thus condemns such statements as “contempt of court” and declares them illegal.
All educated Kenyans should understand its importance. “Contempt of court” is outlawed because it is as “extra-judicial” as the police killings that so infuriate us.
An extra-judicial comment amounts to usurping somebody else’s duty in our clearly defined division of labour.
To comment out of court is to make a ruling outside the socially sanctioned and professionally competent precinct of law and thus without hearing the given case.
Justice thus condemns it as taking the law into your own hands. However, as soon as a judicial official announces his ruling, it becomes a res publica.
This Latin term – the origin of our word “republic” – literally translates as a “public thing”.
It means that, after the ruling, every case is opened for the entire republic to examine and comment on.
It is neither here nor there whether or not a comment is objective and sustainable.
The point is that every citizen – including the President and the Prime Minister – has the inalienable right to criticise the activities of all the three branches of government, and this for the simple reason that this division of governmental “labour” purports to exist in the citizen’s own name.
Individual courts
For to criticise is not to obviate the need for an institution. If our Judiciary is well constituted, criticism should be limited to individual courts.
That, I think, was what Mr Odinga did. I agree, he used words quite unbecoming of his office. But he criticised a ruling, not the Judiciary.
We owe it to President Moi’s systematic reduction of the Judiciary to a cog in the wheels of Nyayo politics.
Willy Mutunga was among the lawyers who constantly accused the Moi Judiciary of selling justice for 30 pieces of silver.
Like the “invisible worm” inside the poet’s “rose”, the Nyayo virus remains embedded throughout our body politic.
That is why the Chief Justice cannot forbid criticism even of the whole Judiciary without doing the gravest injustice to us.
ochiengotani@gmail.com
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