Mutunga is finally learning: opinions are fought in the public court: not in the corridors of justice. But is he being realistic to declare that Kenyans have faith in the judiciary?
Mutunga is right. Kenyans have faith in the judiciary: Kenyans such as Mutunga, a few judges and the few who remain confident that things would go in their favour. But what about the rest of Kenyans? That’s a different ball game.
In the words of Kethi Kilonzo, judicial decisions are rarely a win/win situation. They cause much joy to one side and grief to the other in equal measure. This is why it is important that justice must not only be done but also be seen to be done. Justice being done is for the consumption of the lawyers. Justice being seen to be done is for the consumption of the public. A good judiciary gets the two dimensions right.
If there is any perception of partiality on any side, even the person who is favoured will never trust that the arbitrator will be fair the next time. That’s the blunt truth. If you favour me because I am your brother against an opponent you’re not related with; how will I trust you to be fair in a dispute where you are closer to the other opponent? Mutunga’s decision was in favour of Jubilee but I can assure him that not even Jubilee sycophants will be mad enough to believe in his impartiality.
The facts of law are irrelevant here. This is the court of public opinions. The one that is controlled by the dimension of wanting “justice to be SEEN to have been done”: one that you cannot argue with. Let me put it this way, if you favour me today, how sure would I be that you’ll not favour my opponent tomorrow? It’s only a person whose resolve to defend the truth that can be trusted by both parties. If you refuse my pleadings for a favour, there’s a good chance that I will be hoping that next time I am the one at a disadvantage, you’ll also refuse to hearken to the pleadings of the other parties.
I put it to Mutunga that his is not an observation based on facts, but a statement in desperation that it is true. Public sentiments against the judiciary have been pointing in one direction: NO CONFIDENCE. The trust that the public had that the judiciary would be the force to sanitise Kenyan politics has been lost.
There are over 180 election petitions in court. Have you heard the public speculate on them? No. Why? Because no one expects much from the judiciary. We are back to where we were in 2007. No one will trust the judiciary to be a neutral arbitrator. And Mutunga should know that choices have consequences. He forfeited the chance to become the most powerful person in Kenya by guiding the country on the path of truth. Instead, technicalities prevailed.
Would you as a Kenyan seek to resolve your issues in the courts? That depends on the level of confidence that people have in the courts. The courts no longer need to worry about accumulation of cases. There will be no more pileups. The appointment of the CJ had seen cases being filed surge dramatically.
I put it to Mutunga that those numbers will reduce dramatically. His only salvation is for him and all supreme judges to vacate office. He must now become the sacrifice that could be used to buy confidence for the courts.
The only problem with that is: who appoints the next CJ? It is the beneficiary of Mutunga’s rulings. So it doesn’t make a difference whether it is Mutunga or someone else who is at the helm of the judiciary. Kenyans do not have faith in the judiciary. Kenyans know they can do nothing about it. Kenyans ACCEPT AND MOVE ON.